- (1.) HEARD Sri S. S. Negi, learned coun sel for the petitioner and Sri Ashok Agarwal, learned Standing Counsel for Union of India / respondents.
(2.) BY means of this writ petition, the petitioner has prayed for the follow ing reliefs : i) Issue a writ, order or direction in the nature of certiorari to quash the impugned judgment and or der passed by the respondent no. 3 C. D. A. (P) Allahabad LKP. rejecting by information order or disability pension dated 31-08-1992 issued by the Garhwal Rifles, Records Lansdowne Garhwal (U. P.) on behalf of re spondent no. 3 (annexure no. 5) of this writ petition, ii) Issue a writ, order or direction in the nature of certiorari to quash the impugned judgment and or der passed by the respondent no. 1 Union of India, rejection by information order dated 31-12-1993 issued by the O. P. Srivastava, Additional Secretary Govt. of India, New Delhi (annexure no. 7) to this writ pe tition, iii) Issue a writ, order or direction in the nature of mandamus com manding the respondent nos. 1,2,3 and 4 to provide forthwith disability pension and gratuity to the petitioner w. e. f. 29-02-1992 from the date of discharge, for life alongwith family 'pension (annexure no. 9) to this writ pe tition, iv) Issue a writ, order or direction which in the nature of mandamus commanding the re spondents to appoint the peti tioner in civil employment for which the petitioner was found fit for civil jobs under the Mili tary Department (annexure no. 9) to the writ petition, v) Issue any other writ, order or di rection, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case be passed in favour of the petitioner, vi) Award cost of the writ petition to the petitioner. The case of the petitioner, as narrated in the writ petition, is that the pe titioner was enlisted in Garhwal Rifles Lansdowne on 23-09-1983. While the petitioner was posted in Sri Lanka in the month of March/april 1989, he applied for leave and was granted two months leave by the respondents. During the leave period the petitioner, while living in his newly built house in village Motadhak, fell down and his left hand was fractured. The petitioner was admit ted to Army Hospital, Roorkee and the hand of the petitioner was plastered, but because of negligence of the doctors of the Army Hospital, the bone of the hand of the petitioner was joined wrongly. The Garhwal Rifles, Lansdowne, thereafter asked the peti tioner to perform duty of Mule catering and while he was performing his duties, he fell down again with the result that there was fracture again. The petitioner was referred to Army Hospital, Dehradun for operation where his hand was operated upon and two iron rods were fixed in his left hand. After the aforesaid incident, the petitioner had worked with the Garhwal Rifles for more than 1 1/2 year, however he was dis charged from service on 29-02-1992 without disability pension. The disabil ity was assessed to 20% by the respond ents. Since, the petitioner was not granted disability pension, he con strained to file the present writ petition. The respondents have filed their counter affidavit. In paras-7 and 8 of the counter affidavit, the respondents have taken the following grounds : "that the para no. 4 of the writ pe tition is partly admitted. The peti tioner was accorded 64 days annual leave w. e. f. 24 March, 1989 to 26 May, 1989. It is admitted that the pe titioner was admitted to the Military Hospital Roorkee on 2nd May 1989 and to as discharge on 8th May, 1980. The nature of injury was Fracture Radius and Ulna (LT ). Injury report was initiated by the Military Hospital Roorkee dated 03 May, 1989 wherein it was declared that the injury of the petitioner was not attributed to mili tary service. A court of inquiry LOOS held and the petitioner placed in low medical category CEE (Tempo rary) w. e. f. 24 June, 1989 for six months and a medical board was held at military hospital on 24th June, 1989. The petitioner was again ad mitted to military hospital Lansdowne on 3 July 1989 and subsequently transferred to Military Hospital Dehradun on 5th July 1989. The pe titioner was accorded 42 days sick leave w. e. f. 30 August 1989 to 10 October 1989 by Military Hospital, Dehradun with the direction to report back on expiry of leave. The peti tioner reported at military hospital on 10th October 1989. His initial medi cal category was reviewed after six months w. e. f. 24th December 1989 and further he was placed in low medical category (Temporary) for an other six months. The petitioner stated that he was detailed for career ing of Mules, which is incorrect. The petitioner after the hospitalization period he was given normal military duties as authorized to low medical category personnel and not for cater ing Mules, as no such record is avail able. Hence the statement of the petitioner is incorrect. "that the para no. 5 of the writ pe tition is admitted to the extent that the petitioner joined the hospital and transferred to Military Hospital, Lansdowne for completion of hospi talization documents. The petitioner was again brought before medical board for re-categorization and sub sequently placed in low medical cat egory. The petitioner was asked for retention of service due to the rea son that he was placed in low medi cal category and the petitioner in the instant case submitted his willingness to serve. The competent authority did not recommended to the petitioner for retention in service because no sheltered appointment was available keeping in view of his disability as per Army Order 46/80 and due to this reason the petitioner was discharge from service w. e. f. 29 February 1992 (AN) in terms of Army Rule 13 (3) (III) (V ). It is pertinent to mention here that a show cause notice was also served to the petitioner and the same was also disposed of in terms of Army Order 46/80 by stating that the petitioner in the instant petition is not in a position to render his es sential duties as infantry solder. The petitioner was also asked for to urged against contemplated release from service within 7 days from the date of issue of show cause notice but the petitioner in the instant petition fails to reply to the show cause notice. There being no suitable sheltered ap pointed available, he was not recom mended for retention his service by the competent authority and accord ingly he was discharged. The peti tioner was again brought before Re lease Medical Board as per Army order 3/89 and a Medical Board was held on loath January 1992 and it was found that there is 20% disabil ity. The claim of the petitioner for disability was sent to the Controller of Defence Account and the same was also rejected through their letter 26th August 1992. The petitioner suffered with the injuries which are not attributable to military service in terms of Para-173 of Pension Regu lation. It is further pertinent to men tion here that the decision of the Chief Controller of Defence Account was also intimated to the petitioner vide Government order dated 31st August 1992. The competent author ity is empowered to review/modify/ alter the initial Release Medical Board of an individual in terms Para-17 of Entitlement Rule 1982. "
(3.) THE stand taken by the respond ents for refusing disability pension is that though the disability was assessed to 20 percent but since, the petitioner has suf fered injuries when he was on leave, the same is not attributable to or aggra vated by military service in terms of para-173 of Pension Regulations. The petitioner has relied upon the judgment of Hon'ble the Supreme Court in the case of Joginder Singh vs. Union of India and others reported in 1996 (2) SLR wherein the Court has held that the injuries to an Army personnel even if sus tained while he was in casual leave will still entitle him for disability pension as the Army personnel on casual leave is treated to be on duty. Hence the peti tioner would be entitled to disability pen sion. In para-5 of the aforesaid judg ment, Hon'ble the Apex Court has held as under : "the question for our consideration is whether the appellant is entitled to the disability pension, we agree with the contention of Mr. B. Kanta Rao, learned counsel for the appellant that the appellant being in regular Army there is no reason why he should not be treated as on duty when he was on casual leave. No Army Regulation or Rule has been brought to our notice to show that the appellant is not entitled to disability pension. It is rather not disputed that an Army personnel on casual leave is treated to be on duty. We see no justification whatsoever in denying the disability pension to the appellant. ";