Mohinder Pal, J. - (1.) THE question involved in this writ petition filed under Articles 226/227 of the Constitution of India is - whether a soldier, who had been invalidated out of Military service with disability pension, consisting of both the elements i.e. service and disability element, is entitled to get service element of pension after the benefit of disability pension was withdrawn from him on reassessment of disability at below 20 per cent.
(2.) BRIEF facts of the case are that the petitioner joined the Military service on December 27, 1957. He was invalidated out from this service with effect from March 31, 1965 with 20 per cent disability due to Hysterical Reaction (Fits) on the recommendation of the Medical Board. According to the petitioner, the disability of the petitioner was attributable to and aggravated by the Military service. The petitioner was granted disability pension, consisting disability element and service element (Rs. 20/ - per month plus Rs. 5/ - = Rs. 25/ - per month with effect from March 31, 1965. Initially, it was granted from March 31, ,1965 to January 15, 1967 and the same was extended from January 16, 1967 to September 20, 1969. On August 21, 1969, the petitioner was brought before Re -survey Medical Board and his disability was re -assessed less than 20 per cent. The C.C.D.A. (Pensions), Allahabad, vide letter No. G3/RA/69/68974/II dated. December 30, 1969, discontinued the disability pension of the petitioner with the remark that percentage of his disability was re -assessed less than 20 per cent. Disability pension of the petitioner was discontinued with effect from September 20, 1969. In this writ petition, the petitioner has prayed for issuance of a writ in the nature of mandamus directing the respondents to release the service element of pension to him with effect from September 20, 1969. In the written statement filed by the respondents, it has been pleaded that disability pension to the petitioner was rejected in the year 1969, but he never challenged the same. Now, after 37 years, his claim is liable to be rejected on account of delay and latches. It has further been pleaded that as per Circular No. Tech./182 dated May 06, 1992 (Annexure R -1) issued by the office of the Controller of Defence Account (P.D.), Meerut Cantt. service element of pension is admissible for only those pensioners who have rendered minimum ten years' service before March 01, 1968. However, in the present case, the petitioner was invalidated out from service on March 31, 1965 (i.e. before March 01, 1968) after rendering seven years, three months and four days service. As such, he is not entitled for earning service element of pension. It has also been pleaded that the disability of the petitioner, as per the opinion of the Invalidating Medical Board, was not attributable to Military service, but aggravated due to stress and strain of Military service in a field area, from April 1964 to September, 1964.
(3.) WE have heard Mr. R.A. Sheoran, Advocate, appearing for the 'petitioner and Mr. S.K. Sharma, Advocate, appearing for the respondents and have gone through the records of the case.;