LPA No. 1269 of 2010

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH.

LPA No.1269 of 2010 (O&M)

Date of decision 20 .1.2011

Union of India and others

... Appellants

Versus

IC 24590-H Brigadier S.S.Jaswal

... Respondent

CORAM:

HON'BLE MR. JUSTICE M.M. KUMAR

HON'BLE MR. JUSTICE T.P.S.MANN

Present:

Ms.Geeta Singhwal ,Advocate for the appellants

Mr. Rajiv Anand, Advocate for the respondent

1.To be referred to the Reporter or not ?

2.Whether the judgement should be reported in the Digest ?

M.M.KUMAR, J.

Challenge in the instant appeal filed by the Union of India under

Clause X of the Letters Patent is to the judgement dated 29.10.2009

rendered by the learned Single Judge of this Court. The learned Single

Judge has placed heavy reliance on an earlier Division Bench judgement of

this Court rendered in CWP No. 67 of 2007 decided on 12.2.2008 (Paramjit

Singh v. UOI). The Division Bench has held that Ex-Armymen could not

have been denied the disability pension and the consequential benefit

covered under the Army Group Insurance Fund on the ground that he was

discharged from service on completion of term of engagement and was not

invalidated out from service although he had suffered battle injuries

resulting in more than 20% of disability. The Division Bench has

considered Regulation 179 of the Army Pension Regulations, 1961

alongwith the Note underneath the Regulation. The aforesaid Regulation

reads thus:

LPA No. 1269 of 2010

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“179. An individual retired/ discharged on completion of tenure or

on completion of service limits or on completion of terms of

engagement or on attaining the age of 50 years (irrespective of their

period of engagement), if found suffering from a disability

attributable to or aggravated by military service and recorded by

Service Medical Authorities, shall be deemed to have been

invalidated out of service and shall be granted disability pension

from the date of retirement, if the accepted degree of disability is 20

per cent or more, and service element if the degree of disability is

less than 20 per cent. The service pension/ service gratuity, if

already sanctioned and paid, shall be adjusted against the disability

pension/ service element, as the case may be.

2.

The disability element referred to in clause (1) above shall be

assessed on the accepted degree of disablement at the time of

retirement/ discharge on the basis of the rank held on the date on

which the wound/ injury was sustained or in the case of disease on

the date of first removal from duty on account of that disease.

Note: In the case of an individual discharged on fulfilling the

terms of his retirement, his unwillingness to continue in

service beyond the period of his engagement should not effect

his entitlement to the disability element under the provision of

above regulation.”

According to the Division Bench armymen who has been discharged

from service on completion of his term of employment would be deemed to

be invalidated out of service because the disability element is required to be

assessed in respect of the degree of disablement at the time of discharge on

the post or the rank on the date when the injury was sustained or in case of

disease on the date of first removal from duty on account of that disease.

LPA No. 1269 of 2010

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The Note further clarifies that mere discharge on fulfilling the date of

retirement is not to effect his entitlement to the disability element of

pension. The view of the Division Bench has been quoted by the learned

Single Judge while interpreting the aforesaid Regulation reads thus:

“A perusal of the above provisions of Regulation 179 of Pension

Regulations leaves no room for doubt that the petitioner was

invalidated out of service. The petitioner sustained injury/ disability

during service, which was attributable to and aggravated by military

service and recorded by Service Med