Dismissed

Udai Pratap Singh v. Union of India Thru. Secy. Govt. of India Ministry of Defence , New Delhi and Others

Allahabad HC27 Sept 2022/6392/2022

Case brief

AI extract

What is this about?

This writ petition challenged the Armed Forces Tribunal's dismissal of a belated claim for disability pension arising from premature discharge due to low medical category. The High Court upheld the Tribunal's decision, noting the claim was raised after a 20-year gap and dismissing the petition for lack of merit.

What the court decided

AI extract

Udai Pratap Singh Vs Union of India Thru… — Pension and Retirement Benefits | Allahabad HC (2022)

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Court No. - 2

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Case :- WRIT - A No. - 6392 of 2022

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Petitioner :- Udai Pratap Singh Respondent :- Union Of India Thru. Secy. Govt. Of India Ministry Of Defence , New Delhi And Others Counsel for Petitioner :- Yash Pal Singh Counsel for Respondent :- A.S.G.I.

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Hon'ble Devendra Kumar Upadhyaya,J. Hon'ble Saurabh Srivastava,J.

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Heard Shri Yash Pal Singh, learned counsel representing the petitioner and the Deputy Solicitor General assisted by Shri Varun Pandey representing all the respondents.

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The petitioner has preferred the present petition for challenging the judgment and order dated 8.7.2021 passed by the Armed Forces Tribunal, Regional Bench Lucknow, (hereinafter referred in short as "Tribunal"), dismissing the Original Application No. 403 of 2020 and also the judgment and order dated 25.8.2021 through which the Review Application No. 42 of 2021 had also been rejected by the Tribunal.

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The brief facts of the case giving rise to the petition are that the petitioner was enrolled in the Army on 28.11.1973 in the Rajpoot Regiment as a Sipoy, during tenure of his service the petitioner was posted at different places. In the year 1992 the petitioner was diagnosed as suffering from Mild Hypertension during routine medical examination, on the opinion of the classified specialist, the petitioner was placed in low medical category CEE (Temporary) for six months w.e.f, 31.01.1992, and thereafter as per recategorization medical board held on 6.8.1992, petitioner was placed in medical category BEE (Temporary) for six months w.e.f. 31.7.1992. By another re-categorization Medical Board held on 2.2.1993, petitioner was placed in medical category BEE (Temporary) for six months w.e.f, 4.2.1993 and thereafter, finally the petitioner was placed in medical category BEE (Permanent) w.e.f, 31.7.1997 for two years.

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After being placed in the lower medical category, a

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show cause notice dated 24.2.1995 was issued to the petitioner requiring him to show cause as to why his services may not be terminated for being placed in low medical category BEE (Permanent).

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Learned counsel for the petitioner contended that petitioner submitted his reply in response to the show cause notice but before completion of term of enrollment, the petitioner was discharged from service w.e.f, 1.9.1995 under Rule 13(3)III(iii) of the Army Rules, 1954 in low medical category.

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Being aggrieved by the discharge from service, the petitioner challenged the same by way of filing Writ Petition No.2555(S/S) of 1996 before this Court. During the pendency of the writ petition, the Tribunal was established and the petition stood transferred to the Tribunal and registered as T.A. No. 197 of 2009.

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The learned Tribunal set aside the order of premature discharge of the petitioner vide order dated 17.2.2010 and granted notional reinstatement, salary and other consequential benefits, the same has been paid to the petitioner accordingly alongwith the arrears of salary with payment of revised pension.

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In the second round of the litigation, the petitioner again preferred the Original Application No. 46 of 2015 before the learned Tribunal seeking promotion to the rank of Subedar Major and the same was dismissed vide order dated 21.12.2015.

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It is evident from the record that during pendency of the transfer application and the original application as preferred by the petitioner, there was no claim for grant of disability pension, whereas after being discharged from the service w.e.f. 1.9.1995, the petitioner approached the respondents for grant of disability pension and the same was replied vide letter dated 26.6.2018 that his case for disability pension had already been rejected by respondent no.4 vide letter dated 24.4.1996. Being aggrieved by the rejection of the claim vide order dated 24.4.1996 communicated through letter dated 26.6.1018, the petitioner challenged the same before the learned Tribunal

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by way of instituting the Original Application No. 403 of 2020. After exchange of pleadings, the same has been dismissed by the learned Tribunal stating the reason that the claim of the disability pension rejected by the respondent no.4 on the ground that both Essential Hypertension and Obesity has neither been attributed to nor aggravated by military service (N.A.N.A) and further that the petitioner did not preferred any appeal/representation against the order of rejection of disability pension claim to the appellate authorities. Learned Tribunal has also observed that at highly belated stage, no purpose would be served by holding a Re-survey Medical Board (R.S.M.B) after passage of 20 years after discharge from service.

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Learned counsel for the petitioner reiterated the stand taken by the petitioner before the learned Tribunal and the same has been made grounds for claim of disability pension in this writ petition. During course of arguments, it has been stated by the learned counsel for the petitioner that the letter dated 24.4.1996 issued by the respondent no.4 has neither been provided to the petitioner nor he was apprised of any cogent reason for denial of disability pension. The submission of the learned counsel for the petitioner is also based on the ground that the petitioner had never been detected with the disease Hypertension and Obesity before joining the services and as such the same can be attributed to and aggravated by army service. The order dated 8.7.2021 passed by the learned Tribunal has been assailed on the ground that the original application could not have been dismissed on the ground of delay, since the claim of pensionary benefit is recurring cause of action.

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On the other hand while defending the orders dated 8.7.2021 passed in O.A. No. 403 of 2020 (Udai Pratap Singh vs. Union of India and others) and order dated 25.8.2021 passed in Review Application No. 42 of 2021 (Udai Pratap Singh vs. Union of India and others), the learned Deputy Solicitor General rebutted the stand taken up by the learned counsel for the petitioner by apprising that a remedy was available to the petitioner for

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redressal of his grievances raised due to rejection of the claim by PCDA vide letter dated 24.4.1996 in shape of First Appeal before the Appellate Committee. Apart from the said remedy, learned counsel for the respondents relied on Regulation of 173 of the Pension Regulations of the Army, 1961 (Part-1) which is re-produced here below:-

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"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 at 20% or over."

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After having the valuable assistance given by both the learned counsels and by perusal of the records it reveals that the petitioner was well aware at the time when he has been discharged from service on 1.9.1995 due to low medical category that there was no claim on behalf of the petitioner with regard to disability pension. At the time of filing the Writ Petition No. 2555 (S/S) of 1996 before this court, there was also no claim for disability pension. The petitioner again preferred the Original Application No. 46 of 2015 before the learned Tribunal for seeking his promotion to the rank of Subedar Major and at that time also there was hardly any claim for disability pension. After lapse of two rounds of litigation before the learned Tribunal, the claim of disability pension has never been raised by the petitioner, though he was well aware that he has been prematurely discharged from Army Service on the ground of low medical category.

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We find that the learned Tribunal while adjudicating the claim of the petitioner in shape of Original Application No. 403 of 2020 (Udai Pratap Singh vs. Union of India and others) has rightly relied upon the factual matrix of the matter and has come to the conclusion that the claim of the petitioner is highly belated and the same cannot be expected from a government servant who is well aware that he has already been prematurely discharged from service on the ground of low medical category and thereafter the claim of disability pension has been raised after the gap of more than 20 years. Moreover the said claim has

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already been rejected by the competent authority i.e, Principal Controller of Defence Account.

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Hon'ble Apex Court in catena of judgments supported the maxim of "vigilantibus Non Dormientibus Jura subvenient " i.e. the remedy is available under law only to those who are availing their rights well within time and not to those sleep over the issue, and as such the claim of the petitioner has rightly been rejected by the learned Tribunal on the ground that no useful purpose will be served for holding a Resurvey Medical Board (RSMB) at a highly belated stage, that too, after a gap of 20 years from the notional discharge from service.

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We find no merit in the instant writ petition. There is hardly any illegality which is manifested in the order dated 8.7.2021 and order dated 25.8.2021 passed by learned Tribunal, Regional Bench, Lucknow, as such instant writ petition is liable to be dismissed. Hence dismissed .

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Order Date :- 27.9.2022 RS

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Digitally signed by RAKESH SINGH Date: 2022.10.13 19:00:22 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Udai Pratap Singh v. Union of India Thru. Secy. Govt. of India Ministry of Defence , New Delhi and Others

Case brief

What is this about?

What the court decided

Udai Pratap Singh v. Union of India Thru. Secy. Govt. of India Ministry of Defence , New Delhi and Others

Case brief

What is this about?

What the court decided

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