R. R. K. Trivedi, J. - (1.) IN this petition counter and rejoinder-affidavits have been exchanged between the parties. Since the petition was filed as back as on 15.7.1986, instead of admitting for final hearing, it is being decided finally under the Rules of the Court.
(2.) FACTS, In short, giving rise to this petition are that petitioner joined Army Service as M. T. Driver on 8.10.1960. Case of petitioner is that his work and conduct during service was excellent and consequently he was appointed as Instructor in M. T. Driver Training Centre, Gwallor. From there, he was transferred to 506 A. S. C. Battalion. Pithoragarh. Later on he was promoted to the post of Lans Nayak. In April, 1968, petitioner proceeded on two months' annual leave. While on leave he fell ill and was admitted in Command Hospital at Lucknow on 4.6.1968. From the hospital petitioner was discharged on 20.7.1968. It is stated that petitioner's health improved. He was allowed to go home but there was no intimation that he was being discharged from service. According to petitioner. Medical Officer informed that he has been granted medical leave for two months and requisite railway warrant was given to him. When the petitioner did not receive any communication for further movement, he made a representation to the Unit Commander. He also contacted the Secretary, Soldiers Board, Ghazipur. Through Secretary, Soldiers Board, Ghazipur, he learnt that he had been discharged from service on Medical Board Certificate on account of Schizophrenic Reaction (300). On 8.3.1976 petitioner raised a claim for disability pension which was registered as 6660978 Ex. L/NK. On 24.5.1977 his petition was forwarded to Officer- in- Charge (Record) A.S.C. (MT). Aurangabad. On 3.6.1977 he was informed that C. D. A. Pensions, Allahabad rejected the claim of petitioner on the ground that disability was neither attributed to nor aggravated by Military Service. On 28.8.1977 petitioner preferred an appeal to Government of India, Ministry of Defence. By letter dated 15.6.1978. Annexure 4 to the writ petition, delay in filing the appeal was condoned and the matter was forwarded to the Government of India for decision. When petitioner did not receive any communication, he filed present writ petition on 15.7.1986 for the reliefs that the respondents may be directed to decide the appeal filed by petitioner and for further direction to the respondents to pay disability pension to the petitioner under the relevant rules. On behalf of the respondents, two counter-affidavits have been filed. First counter-affidavit is of D. L. Kanaujia. who was then serving in the office of Controller of Defence Accounts (Pensions), Allahabad. Another counter-affidavit has been filed by Major B. Ashok Kumar on behalf of respondent Nos.1 and 2. Along with this counter-affidavit, various documents relating to disability and discharge of petitioner from Army Service have been filed which include the Medical Board proceedings of the Command Hospital, Central Command. Lucknow and the orders passed rejecting the claim of disability pension and appeal of the petitioner.
(3.) LEARNED counsel for petitioner has submitted that from perusal of the proceedings of the Medical Board, it is fully established that disability from which petitioner suffered at the relevant time did not exist before he entered into service. The Medical Board Certificate of the Command Hospital. Lucknow is of the date 1.7.1968. The percentage of disability is 50 per cent and the probable duration of this degree of disablement was two years. The cause for the disability mentioned in the proceedings is narrated as under : "The disease is endogenous and arose in a psychiatrically predisposed individual." Learned counsel for petitioner has submitted that there is no material on record to suggest that petitioner suffered from any kind of emotional illness or mental disorder at the time of joining his service and the disability from which he suffered, developed in him during military service. The Medical Board could not reach to any definite conclusion as to how and in what manner the disability developed in petitioner. It could not be ruled out with any degree of certainty that the disability was not caused on account of hard work and acute pressure of the service conditions to which normally military persons are subjected to. Learned counsel for petitioner has submitted that In such circumstances as it was a case of doubt, the benefit should have gone in favour of petitioner as provided in Pension and Entitlement Rules. In the present case the respondents have Illegally and in an arbitrary manner rejected the claim of petitioner without having regard to Rule 4 of the Pension Entitlement Rules as provided in Appendix II. Learned counsel for petitioner has submitted that petitioner served for more than seven years and he was legally entitled for pension as the percentage of disability was 50 per cent and the disability developed during the Military Service. Learned counsel has also submitted that as the petitioner has been illegally denied disability pension for a long period, he is also entitled for interest at the rate of 12% per annum. Learned counsel has also placed reliance on the following cases : 1. Anil Kumar Misra v. Union of India and others, (1996) 2 UPLBEC 761 ; 2. Major Harbans Singh v. Union of India, 1971 SLR 284 (DB); 3. Ram Pal Singh v. Union of India and others, 1983 (3) SLR 291 (SC).;