- (1.) The appellant was commissioned in the Army in the year 1961 and after securing several promotions, he retired as a Lt. Col. on 31.10.1990. The appellant had also been trained as a Pilot during his service in the Army, it is his case that he suffered an attack of Cervical Spondylosis in the year 1985 and Sensory Neural Deafness in the year 1986, both of which were statedly attributable to Military Service and that in addition to these two diseases, he also suffered a third one i.e. Irritable Bowel Syndrome which too was attributable to Military Service. It is his case that on account of the aforesaid problems, he had been placed in low medical category "C" permanent and after being boarded out of service, had been granted the service element of the pension but deprived of the benefit of the disability element. He thereupon filed Civil Writ Petition No. 3824 of 2000, out of which this LPA has arisen praying for the grant of pension on account of medical disability. The said writ petition was dismissed vide impugned order dated March 2, 2001 on the ground that the appellant had not been boarded out from army service but had in fact, been discharged on completion of is tenure. Hence, this appeal.
(2.) The learned counsel for the appellant has relied upon Regulation 53 of the Pension Regulations for the Army, 1961 to contend that even if an officer, who had retired on completion of his tenure, suffered from a disability which was attributable to Military Service, he was to be deemed to have been invalided out of service and if the medical disability was beyond 20 per cent, he was entitled to a disability pension. The learned counsel submitted that the appellant had been absolutely medically fit during his long service career, but had before discharge had been detected as suffering from three diseases attributable to Military Service.
(3.) Mr. Gurpreet Singh, the learned counsel appearing for Union in the case of has, however, placed reliance on the judgment of the Supreme Court in the case of Controller of Defence Accounts (Pension) and others v. S. Balachandran Nair, 2005 AIR(SC) 4391, to urge that no disability pension was payable in such a case. For facility of reference, Regulation 53(1) is reproduced below : "53(1) - An officer on completion of tenure or on completion of terms of engagement or on attaining the age of 50 years (irrespective of their period of engagement), if found suffering from a disability attributable to or aggravated by military service and recorded by service Medical Authorities, shall be deemed to have been invalided out of service and shall be granted disability pension from the date of retirement, if the accepted degree of disability is 20 per cent or more, and service element if the degree of disability is less than 20 per cent. The retiring pension/retiring gratuity, if already sanctioned and paid, shall be adjusted against the disability pension/service element, as the case may be". A perusal of this Regulation shows that even if an officer has retired on completion of his tenure, disability pension can still be given on fulfillment of certain conditions and on the satisfaction of the deeming provision. In this background, we have pursued the original record produced before us by Shri Gurpreet Singh. It shows that two diseases i.e. Cervical Spondylosis and Irritate Bowel Syndrome had been found by the Medical Board as being not attributable to Military Service but the third one, i.e. Sensory Neural Deafness had been observed as being attributable to Military Service with disability at 20 per cent. We are, thus, of the opinion that the appellant was entitled to the disability pension as his disability had been aggravated to the extent of 20 per cent. On these facts, the judgment cited by Mr. Gurpreet Singh has no applicability to the facts of this case. We, accordingly, allow this Appeal and direct that the appellant shall have his pension, as revised from time to time, re-computed in the light of the above observations and the arrears shall be paid to him within a period of four months from the day the respondents receive a copy of this order. Dasti.;