- (1.) R. K. Mahajan, J. By this Writ Petition, the petitioner has made a proper in the nature of certiorari quashing the orders dated 31-3-1990 ; 4-5-1990 (Annexures I and II to the writ petition) passed by respondent No. 4 and the order dated 3-12-1991 (Annexure V to the writ petition) passed by the respondent No. 1. The petitioner has also prayed that a writ in the nature of mandamus be issued directing the respondent No. 2 to reinstate the petitioner in service and to pay the salary from the date of the discharge on 31-3-1990 or in the alternative direct the respondents to grant the disability pension to the petitioner in accordance with law.
(2.) THE petitioner's grievance is that he had been recruited as soldier in the Indian Army on 13th December, 1982 at Varanasi after being thoroughly examined by the Medical Board and after completing all the necessary formalities, he was declared successful. He has not been given the disability pension assessed 20% by the Medical Board which occurred during the period of service. Resume of facts leading to the writ petition are as under : The petitioner joined as soldier in the Army on 13th December, 1982 at Varanasi. Thereafer the petitioner reported for training in Jat Regiment Centre, Bareilly. There also the petitioner was examined by the competent medical officers and was declared fit and was put in category A. After the above training in Jat Regiment, Bareilly, the petitioner was transferred for Trade Training at Remount Veterinary Groups, Meerut (hereinafter referred to as R. V. C.) in the year 1983. He was found fit there by the Medical Board. It is further-alleged that after the completion of the above training, the petitioner was posted at Hempur, District Nainital on 2nd June, 1984. The petitioner remained medically fit and was placed continuously in medical category A. It is alleged that Hempur is a hilly area and due to stress and strain in Military Service and nature of duties such as long route marches covering about 20 miles a day, severe battle in training involving horse riding at faster speed for along distance. With all the personal arm and equipments and night training including ship less right etc. , the petitioner developed some minor physical problem and then he was placed in low medical category B in September, 1985. A review was held in March, 1986 and the petitioner was upgraded to medical category A. Thereafter the petitioner was transferred from Hempur, District Nainital to R. V. C. Saharanpur on 30th April, 1987 where he was again medically exa mined by the Medical Board and was declared fit to category A. It is also averred in the petition that the petitioner was technically tested in horse-riding in which he was declared successful and certificate of technical proficiency was issued on 19th December, 1987. To the petitioner mentioning that the petitioner had an physical efficiency to discharge the duty. The case of the petitioner is that he performed all types of his duties during this period at different places where ever he was posted till 1988 and remained in medical category A. However, at the last due to stress and strain of the Military service, as mentioned earlier, he developed some physical trouble and, therefore, the medical authorities placed the petitioner in low medical category C temporarily for six months in the year 1989. The petitioner had improved his health and his medical category was upgraded to category B temporarily for six months and thereafter the petitioner was placed in category B permanently during the year of 1990. It is alleged by the petitioner that he was discharged from service on the basis of the report of the Medical Board plating him in category B. Permanent vide order dated 31-3-1990 passed by the respondent No. 2 Centre Commanding Officer. The petitioner has described the , order of discharge of illegal, arbitrary and against the rule as the persons placed in category B permanently cannot be discharged from service because they are deemed to be fit for performing all types of duties except conducting battle duties in war front. The petitioner was also not given sheltered post in alternative and, therefore, he has described the action of respondents not fair. He has further averred that the persons similarly situated are in service and he had been discriminated. Petitioner's further grievance is that the Medical Board recommended that since he is in category B, he be given disability pension as it had been caused and aggravated due to Military Service but despite that recommendation, the respondent No. 4, the Chief Controller of Defence Accounts (Pensions), Allahabad rejected the claim of the petitioner on 4- 9-1990. Later on, appeal was filed but the appellate authority has not accepted the claim of the petitioner. Under these circumstances, the petitioner has moved this Court to quash the impugned' orders. The respondents controverted the allegations and denied the claim of the petitioner in to to.
(3.) I have heard the learned counsel for the parties. The Learned counsel for the petitioner has, however, during the course of arguments, confined his claim regarding the grant of disability pension only and submitted that the authorities concerned have interpreted the disability pension rules wrongly. The learned counsel for the petitioner has further relied on a judgment of Punjab High Court delivered on 17th January, 1992 in Civil Misc. Writ Petition No. 16728 of 1990 granting disability pensioner benefit to the petitioner, whose disability was 20 per cent. After hearing the learned counsel for the parties, I am on the view that the petitioner is entitled for getting the disability pension. The petitioner was at first placed in category A, later on in Category B due to hyper tension and thereafter he was discharged. At the time of recruitment at all stages, he was medically declared fit and as such no other. inference can be drawn that he suffered mental illness during the course of his duties when he was in service. 1 would like, to quote Rule 173 of Section IV Disability Pensionary Awards :- 173. Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 per cent or. over. The question whether a disability is attributable to or aggra vated by military service for the purpose of disability pensionary awards. " Reference would be made to Appendix II pertaining the rules for entitle ment of disability pension which run as under :-- " (1) With effect from 1st April, 1949, in supersession of all previous orders on the subject, the entitlement to disability and family pension, children's allowance and death gratuities, will be governed by following rules. Invaliding from service is a necessary condition for the grant of a disability pension. An individual who at the time of his release under the Release Regulations is in a lower medical category than that in which he was recruited will be treated as invalided from service. JCOs/ors/ncs (E) who are placed permanently in a medical category other than 'a' and are discharged because no alternative employment suitable to their low medical category can be provided as well as those who having been retained in alternative employment but ate discharged before the completion of their engagement will be deemed to have invalided out of service. (2) Disablement or death shall be accepted as due to military service provided it is- (a) the disablement is due to a wound, injury or disease which- (i) is attributable to military service ; or (ii) existed before or arose during military service and has been and remains aggravated thereby. ****** (3) There must be a casual connection between disablement or death and military service for attributability or aggravation to be conceded. (4) In deciding on the issue of entitlement all the evidence, both direct and circumstantial, will be taken into account and the benefit of reasonable doubt will be given to the claimant. This benefit will be given to the claimant. This benefit will be given more liberaberlly to the clamant in field, service cases. ";