Mohinder Pal, J. - (1.) THE petitioner was enrolled as Sepoy in the Indian Army on September 01, 1999. He has granted leave for one month on March 11, 2001. While on leave, he met with an accident and suffered fracture tibia and fibula (Rt.). Firstly, he got treatment from Civil Hospital, Anandpur Sahib and thereafter from Military Hospital at Chandimandir, Panchkula. After having been discharged from Military Hospital, Chandimandir, he joined his duties and remained in his unit for about one year. However, he was presented before the Medical Board and was declared to be in medical category S.H.A.3, P.E. (Permanent). As per Medical Board's opinion, he was discharged from the Army on November 31, 2003. The case of the petitioner is that he served the Army for about four years and three months, but was not granted disability pension, consisting of both service element and disability element, after his discharge -from service.
(2.) THE disability pension claim of the petitioner was rejected on June 14, 2004, on the reasoning that the disability was of a constitutional order, which was neither attributable to nor aggravated by military service. The rejection of disability pension claim was communicated to the petitioner vide letter dated June 30, 2004 (Annexure P2) with an advice to prefer an appeal if he felt unsatisfied with the decision. The petitioner submitted appeal (Annexure P3) on August 27, 2004, which was rejected and communicated dated October 16, 2006 (Annexure P5) in this regard was sent to him. In this petition filed under Articles 226/227 of the Constitution of India, challenge is made to the action of the Army Authorities whereby case of the petitioner for disability pension consisting of both the elements i.e. service and disability element has been rejected and it is prayed that a direction be issued to the respondents to release the same to the petitioner.
(3.) IN the written statement filed by the respondents, it has been pleaded that the petitioner was discharged from service in the year 2003 and the present petition which has been filed after a lapse of four years is liable to be dismissed on the ground of delay and latches. \t has been further pleaded that at the time of accident, the petitioner was on leave and accident took place at his native village which has no connection with the service and, therefore, as per Regulation 173 of the Army Pension Regulations, 1961' (hereinafter referred to as 'the Pension Regulations') he was not found entitled to any disability pension. The petitioner sustained severe injuries in his leg on March 11, 2001 while he was riding a scooter. As per remarks of Commander 86 Infantry Brigade dated November 10, 2001, the injury was assessed as not attributable to military service vide IAFY -2006 (Injury Report) dated March 28, 2001. The petitioner was downgraded to low medical category SIHIA3 (T -24) P4R1 (Temporary) for Fracture Tibia Fibula (Rt.) with effect from July 16, 2001, which was subsequently converted into A3 (Permanent) with effect from December 31, 2001. Retention of the petitioner was not found justifiable in the public interest. Hence, he was discharged from service. It has been further stated that before discharge from service, the petitioner was brought before a duly constituted Release Medical Board wherein the disability. Fracture Tibia Fibula (Rt.) was assessed at 20% with the remarks that the disability is not attributable to military service. The petitioner's disability pension claim was rejected on the ground that the disability is neither attributable to nor aggravated by military service.;