Fateh Deep Singh, J. - (1.) PETITIONER Dharampal Singh was enrolled in E.M.E. Corps of the Indian Army on 26.5.1979 and while under training as a Recruit was discharged on 18.11.1980 having been found to be suffering from ASTRO CYTOMA GRADE -III TO IV LT. PARIETO OCCIPITAL REGION which was assessed to the extent of 60%. He was thus denied any disability pension. The petitioner initially filed a Civil Suit No. 105 of 1995 before learned Additional Civil Judge (Senior Division), Narnaul and vide judgment and decree dated 2.9.1998 his suit stood dismissed whereby it was held that he was not entitled to any disability pension. Dis -satisfied, the petitioner filed appeal against these findings before the learned District Judge by way of Civil Appeal No. 141 of 1998 and vide judgment and decree dated 13.9.1999, his appeal was allowed and his suit was decreed holding that he was entitled to disability pension. The Union of India preferred regular second appeal before this Court and which was transferred to the Armed Forces Tribunal, Chandigarh Regional Bench at Chandimandir by virtue of the enactment of the Armed Forces Tribunal Act. The Tribunal vide its finding dated 16.5.2012 allowed the appeal of the appellant -Union of India and set aside the judgment and decree of the first appellate court.
(2.) THROUGH this civil writ petition preferred under Article 226/227 of the Constitution of India, the petitioner had sought indulgence by way of issuance of writ of certiorari for quashing the judgment and decree of the learned trial court dated 2.9.1998 as well as orders dated 16.5.2012 of the Armed Forces Tribunal and further seeking writ of mandamus directing the respondents to grant disability pension to the petitioner. We have heard at length Mr. R.A. Sheoran, counsel for the petitioner and Mr. D.S. Bishnoi, representing the respondents.
(3.) ADMITTEDLY the petitioner at the relevant time though was a Recruit under going training but certainly fall within the definition of section 2(i)(b) of the Army Act, 1950 (in short, the Act) and being a person enrolled under this Act is certainly subject to the provisions of this Act. It is not disputed as to the infliction of the disease from which the petitioner has suffered and all that needs to be adjudicated is if the disability so suffered by the petitioner is attributable or aggravated by Military Service in terms of Regulation 173 of the Pension Regulations for the Army, 1961 (in short, the Regulations). Regulations 48(a), (b) and 173 of the Regulations are reproduced below: - Pension Regulations for the Army, 1961 48. (a) Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an officer who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non -battle casualty cases and is assessed at 20 per cent or more. (b) The question whether a disability is attributable to or aggravated by military service shall be determined under the rules in Appendix II. xxx 173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non -battle casualty and is assessed 20 per cent or over. The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II.;