Invalid Pension claims require a finding of disability attributable to service, and failure to timely challenge the Medical Board's assessment undermines such claims.

JUDGMENT

Navin Chawla, J. (Oral)--The present petition has been filed by the petitioner challenging the reply dated 23.07.2021 to the legal notice dated 16.06.2021 served by the petitioner on the respondent, denying grant of `Invalid Pension' to the petitioner. The petitioner further prays for grant of Invalid Pension to the petitioner from the date of his discharge from service, that is 01.03.1999, alongwith interest at the rate of 12% per annum.

2. It is the case of the petitioner that the petitioner was enrolled in the Assam Rifles on 23.12.1997 in SHAPE-1 medical category, after clearing all the medical and physical tests which are part of the screening process. On 14.02.1998, while the petitioner was on training, he was diagnosed with `Traumatic Perforation TM (Rt) Severe'. The petitioner was invalided out from the service in the medical category 'EEE. on 28.02.1999.

3. The petitioner himself discloses in the petition that the Invalidment Medical Board of the petitioner had opined that his disability is neither attributable to nor aggravated by the service and his disability was assessed at 70% for life.

4. In paragraph 4 and 5 of the petition, the petitioner asserts that the petitioner suffered the disability due to an incident in the service where the training instructor slapped the petitioner due to which he lost an eardrum.

5. The learned counsel for the petitioner submits that the petitioner is entitled to receive Invalid Pension under Rule 38 of the Central Civil Services (Pension) Rules, 1972 and in terms of the Office Memorandum no. 21/01/2016-P&PW(F) GOI, Ministry of Personnel Public Grievances & Pensions (Department of Pension & Pensioners' Welfare) dated 12.02.2019. In support of the claim, the learned counsel for the petitioner places reliance on the judgment of the Supreme Court in Dharamvir Singh vs. Union of India and Others, (2013) 7 SCC 316 and the judgment dated 25.06.2014 passed by the Supreme Court in Sukhvinder Singh vs. Union of India, Civil Appeal No. 5606/2010.

6. As far as the delay in filing of the present petition is concerned, the learned counsel for the petitioner places reliance on the judgment of the Supreme Court in Union of India and Others vs. Tarsem Singh, (2008) 8 SCC 648 to submit that as the denial of Invalid Pension is a continuing wrong, the same cannot be stated to be barred by limitation, though in the given facts the Court may grant relief to the petitioner only for the period starting from the last three years of filing of the petition.

7. We have considered the submissions made by the learned counsel for the petitioner, however, find no merit in the same.

8. At the outset, it is noticed that in the legal notice dated 16.06.2021 the petitioner did not attribute any cause to his suffering from `Traumatic Perforation TM (Rt) Severe' for which he was invalided out from service. The cause now being attributed in paragraph 4 and 5 of the petition is, therefore, clearly an afterthought and cannot be accepted.

9. As far as the submission of the learned counsel for the petitioner that in terms of the judgment of the Supreme Court in Dharamvir Singh (supra) and Sukhvinder Singh (supra), as the petitioner was found in SHAPE-1 medical category at the time of enrolment, his subsequent ailment can only be attributed to service, cannot also be accepted. As noted hereinabove, the petitioner himself disclosed that at the time of his invalidment, the Invalidment Medical Board had opined that his disability is neither attributable to nor aggravated by the service. The petitioner did not put this opinion in challenge for more than twenty one years.

10. In No. 14666828M Ex CFN Narsingh Yadav vs. Union of India an