Injuries sustained by Army personnel during authorized leave should be deemed as attributable to military service for the purpose of disability pension.

Ashutosh Mohunta, J.

1. The petitioners have sought a writ in the nature of certiorari for quashing the order dated 3rd December, 2002, vide which their claim for grant of disability pension in respect of their father was rejected by respondent No. 2. The petitioners have also sought quashing of the orders passed in subsequent appeals, representations etc. They have also sought a writ of mandamus to direct the respondents to release disability pension which was due to their father with effect from the date of his discharge from Army service w.e.f. 28th February, 2002.

2. The petitioners have averred in the writ petition that their father was recruited in the Army (Jat Regiment) on 24th August, 1993. Due to strenuous schedule of military life and continuous stress and strain, the father of the petitioners developed the problem of PIVD LV4- LV5 (OPTD) 722 (E). According to the petitioners, their father was invalidated out of the Army w.e.f. 28th February, 2002. His claim for disability pension was rejected by respondent No. 2 on the ground that disability, on account of which he was invalidated out of service, was neither attributable nor aggravated by military service the same being constitutional in nature. Petitioners father preferred an appeal against this decision. However, the same was rejected by the first appellate committee on 13th September, 2005. A second appeal was also preferred which was rejected on 19th January, 2007 by the second appellate authority. Petitioners father expired on 7th January, 2007. Aggrieved by the decision of the respondents in rejecting the claim for disability pension, the petitioners have approached this court by way of this writ petition.

3. Reply has been filed on behalf of the respondents wherein it has been denied that father of the petitioners developed the problem of PIVD LV4-LV5 (OPTD) due to any stress or strain due to military schedule. It has been averred that in fact, the father of the petitioners was granted annual leave from 4th January, 2000 to 3rd March, 2000. At about 11.00 hours on 3rd March, 2000, while at home he was white washing his house. At that time he sustained a contusion lower back & left Iliac Bone. Due to this, he was admitted in Military Hospital, Alwar on 4th March, 2000 and thereafter transferred to Base Hospital, Delhi Cantt for opinion of Orthopedic Surgeon. He was admitted in the said hospital at Delhi Cantt on 7th March 2000 and discharged therefrom with sick leave for six weeks. However, on expiry of the leave, he was again admitted in the same hospital on 17th June, 2000 and then transferred to Military Hospital, Alwar on 19th June, 2000 for holding Categorization Medical Board. He was admitted in Military Hospital, Alwar on 20th June, 2000 and discharged therefrom on 23rd June, 2000 in low medical category CEE (Temporary) on account of PIVD LV4-LV-5 (OPTD) for six months w.e.f. 21 st January, 2000 by the Medical Board at Military Hospital, Alwar. On review, he was continued in low medical category SIHLA 3 (T-24) PIE 2 w.e.f. 21 st December, 2000 for next six months. On further review, he was placed in permanent low category SIHLA 3 PIEI for two years by the Re-categorization Medical Board held at Military Hospital, Alwar. The respondents have thus submitted that the claim of the petitioners father for grant of disability pension was rightly rejected by PCDA (P), Allahabad in consultation with Medical Adviser (Pension). The first appellate authority had also rejected the claim for grant of disability pension as the injury suffered by the petitioners father was during his annual leave and his second appeal was also rejected on the same ground. According to the respondents, though disability of petitioners father was assessed at 40% by the Medical Board but the same was considered neither attributable nor aggravated by military service by the Release Medical Board. Thus, in terms of Regulation 173 of the Pension Regulations for the Army Part-I, 1961