JUDGMENT :

Sanjeev Kumar, J.

1. One Raghbir Singh, a retired soldier of Indian Army is before us in this petition, filed under Article 226 of the Constitution of India, to throw challenge to an order and judgment dated 16^th May, 2023 passed by the Armed Forces Tribunal, Regional Bench Srinagar at Jammu [“the Tribunal”] in OA No.230/2022 titled Ex Nk Raghbir Singh v. Union of India and others, whereby the Tribunal has dismissed the OA of the petitioner, which was filed primarily to seek a direction to the respondents to grant him war injury element of pension instead of disability element w.e.f. 01.07.1994.

2. Briefly stated, the facts leading to the filing of this petition, as can be culled out from the pleading of the parties and the order impugned, are that the petitioner was enrolled in Indian Army (Punjab Regiment) on 26.11.1977. While serving with 16 Punjab, the petitioner sustained gut shot injury on his left hip at Rupa Post due to negligent handling of weapon by L/Nk Prem Pal of the same Regiment. The Court of Inquiry proceedings conducted in the matter concluded in returning an opinion that the injury sustained by the petitioner was attributable to military service in field service concessional area.

3. The petitioner was discharged from service on 30^th June, 1994 under Army Rule 30(3) item III (v) before completion of his tenure of service. Since the Release Medical Board placed the petitioner in low medical category CEE (permanent) and the same was assessed at 40% for two years and attributable to military service, as such, the disability pension claim of the petitioner was processed. The petitioner was, thus, granted the disability pension w.e.f. 01.07.1994 to 05.06.1996. The petitioner was brought before the Re-survey Medical Board on 15.03.1996 and disability of the petitioner was assessed at 50% for five years. He continued to get the disability pension w.e.f 06.05.1996 to 14.03.2001. Finally, the petitioner was brought before the Resurvey Medical Board on 30.12.2005, which reassessed the composite degree of disablement of the petitioner @ 50% for life. This was accepted by the PCDA(P), Prayagraj, who vide PPO No. D/RA/1300/206 dated 12.04.2006 granted the disability pension to the petitioner for life w.e.f. 30.12.2005.

4. The petitioner accepted the disability pension granted to him for more than 15 years and it was on 08.07.2021, the petitioner preferred an application under Right to Information Act, 2005 seeking certain information/documents, which were provided to him by the Punjab Regiment vide letter dated 16.08.2021. The petitioner raised claim for grant of war injury element but the same was turned down by the respondents on the ground that there was no evidence available with them regarding the war injury suffered by the petitioner.

5. Feeling aggrieved of rejection of his claim for war injury pension, the petitioner filed OA No. 230/2022 before the Tribunal for grant of war injury element w.e.f. 01.07.1994 for life. The OA was contested by the respondents. In their statement of facts filed before the Tribunal, the respondents took a stand that the petitioner sustained injury on his left hip on 14.06.1990 at Rupa Post due to negligent handling of weapon by L/Nk Prem Pal of the Unit. It was submitted that the injury suffered by the petitioner was held attributable to military service in field service concessional area and, therefore, he was granted disability pension. The OA was also resisted on the ground that there was inordinate delay on the part of the petitioner to approach the Court and, therefore, the OA was hit by delay and laches.

6. Having considered the rival contentions of the parties and material on record including the Rule position, the Tribunal came to the conclusion that the petitioner did not fulfill the condition for grant of war injury element as per Para-4 of Special Army Order 8/S/85 nor the injury sustained by him could be held as battle casualty being not covered under Category-E of Gov