Advocates:
['R K GUPTA', 'N GOSWAMI', 'CGSC', '', 'T RABSTAN']

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

******

SWP No.844/01

Dated:4.11.08

Milkhi Ram

v. Union of India and ors

Coram:

Honble Mr Justice Nirmal Singh, Judge

Appearing Counsel:

For the petitioner(s)

: Mr R.K. Gupta

For the respondent(s) : Mrs Neeru Goswami, CGSC

(i)Whether approved for:

Reporting in Journal/Digest

Yes/No

(ii)Whether approved for

Reporting in Press/Newspaper

Yes/No

The case of the petitioner is that he was enrolled in the army as

Rifleman in the year 1960. It is stated that at the time of his enrolment

he was hale and hearty and did not suffer from any disability. In the

year 1969, when the Unit of the petitioner was stationed at NEFA

border for undergoing high altitude training, the petitioner developed

some pain in his eyes. He was admitted in 151 Medical Hospital,

Tejpur, Assam, for undergoing treatment. In the year 1970, the

petitioner was placed in low medical category permanently and was

accordingly boarded out of service.

The grievance of the petitioner is that he was neither paid the

disability pension nor the service pension. It is stated that the disability

which resulted in his invalidation out of service has been aggravated by

military service, and therefore, he is entitled to disability pension. It is

stated that petitioner rendered about 10 years of service and is also

entitled to service pension.

On notice, respondents have filed counter stating therein that the

writ petition has been filed after about 21 years of discharge of the

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petitioner from service, and thus, suffers from delay and laches. It is

stated that in case, the disability suffered by an army personnel during

his service is assessed at less than 20%, he is not entitled to disability

pension and as the disability of petitioner was assessed at less than

20%, i.e. 15-19%, he was not allowed the said benefit. The further

stand taken by the respondents is that on placing the petitioner in low

medical category CEE(P) on account of the disability known as Myopia,

the petitioner was asked to give his consent for retaining in service in

the said medical category but he expressed his unwillingness to

continue in service and opted for releasing out of service. It is stated

that as the petitioners total service was 9 years 268 days i.e. less than

10 years, he was not held entitled to service pension. It is stated that

the petitioner at the time of his release was paid invalid and death-cum-

gratuity in lieu of pension for the above service rendered by him.

When this petition was taken up for hearing on 3^rd of May08,

following order came to be passed:-

The stand taken by the respondents in the counter is that after

the disability of the petitioner was assessed at 15-19%, he was asked

to give his consent for retention in army service but the petitioner

showed his unwillingness to continue in service and opted for releasing

out of service. To this effect, however, no document has been placed

on record.

In view of the above stand taken by respondents, it has become

necessary to peruse the record as to whether the petitioner had shown

his willingness to not continue in service and that he was boarded out

of service on his own request. Respondents are accordingly directed to

produce the record on the next date of hearing.

Respondent-Union of India have not produced any such record to

show that the petitioner had shown his unwillingness to be retained in

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service in his medical category. They have, however, placed on record

a letter dt. 15^th of Feb08, passed by the Senior Records Officer in

which a stand has been taken that at the time of discharge of the

petitioner, written unwillingness was not required to be obtained from

the individual concerned and in normal course, Commanding Officers

used to interview the affected personnel and based on their

willingness/unwillingness, the s