JUDGMENT V.M. Sahai, J.
1. The petitioner was enrolled as soldier in the Indian Army on 21.12.1980. He completed his training and was posted in Naga Regiment and was sent to Laddakh in high altitude for service. At the time of selection and appointment, the petitioner was found physically fit by the Medical Board. In 1983 he was posted in Blngaguri, West Bengal and was sent for physical training in 1984 to Pune. In 1985 he was promoted as Lans Nayak and thereafter as Nayak. During the P. T. training course, the petitioner overstrained his physical capacity which resulted pain in his chest. He was admitted in 164 Military Hospital, Binaguri on 30.4.1985. On 10.12.1986 he was sent to Medical Board of Army Medical Core, New Delhi, to be examined by Medical Board of Army Medical Core. New Delhi. The Medical Board on 15.12.1986 found that the petitioner 'suffered from 40% disability. He was discharged on 27.3.1987 from the Indian Army without any disability pension. His claim for disability pension was rejected by the respondents on 2.7.1987. The appeal filed by the petitioner was also rejected on 7.9.1989. The petitioner challenged the orders dated 2.7.1987 and 7.9.1989 by filing the instant writ petition.
2. Heard Shri Rajendra Dobhal, learned counsel for the petitioner and Shri B. K. Yadav. learned counsel appearing for the respondents.
3. In the counter-affidavit, the respondents in paragraph 3B have stated that the petitioner was not qualified to claim the pension as he had not completed 10 years service. It Is further stated that the petitioner did not suffer the physical disability while in service and, therefore, no disability pension was required to be paid to the petitioner. The claim of the petitioner was rejected also on the ground that the petitioner did not suffer any physical disability while in service of Army. His appeal was also rejected on the same ground.
4. In the counter-affidavit, respondents have annexed the opinion of Medical Board along with Annexure-8 to the counter-affidavit. The Medical Board found that the petitioner suffered medical disability at the time of serving in high altitude which is extracted below :
(C) In respect of each disability shown as aggravated under B : the Board should state fully :
(i) The specific condition and period on service which aggravated the disability : Most of the time serving in High altitude and field area which aggravated his condition.
(ii) Whether the effects of such aggravation still persist? Yes.
(iii) If the answer to (ii) is in the affirmative, whether effect of aggravation will persist for a material period. Yes
5. From this opinion of the Medical Board, it is clear that the petitioner suffered disability while in service at high altitude and the disability suffered by him was during the period while he was in service of the Indian Army. The explanation in paragraph 3B of the counter-affidavit makes it clear that the petitioner is entitled to disability pension. It Is stated :
3B. That as per Regulation 132 of Pension Regulations for the Army Part-I (1961), unless otherwise provided for the minimum qualifying colour service for earning service pension by the non-combatants (Enrolled) is. however, 20 years vide Regn. 145 ibid. When an Individual is invalid out of service with a disability neither attributable to nor aggravated by military service, he is entitled to Invalid pension if the minimum period of qualifying service at his credit is 10 years and for less than 10 years service, invalid gratuity only is admissible vide Regulation 198 ibid. An individual who has completed 5 years qualifying service and is eligible for service/ Invalid gratuity or pension of any type, is granted on the termination of service, a retirement gratuity (earlier termed as CCR Gratuity). This scheme was introduced only w.e.f. 10.9.70."
6. The regulation itself makes it clear that minimum 10 years service is required when disability is neither attributable nor aggravated by military service. Since petitioner's disability is attributable when he was In military service. The minimum requirement of 10 years was not applicable to him, as he suffered disability due to serving most of the time at high altitude and field area which aggravated his condition as per the opinion of the Medical Board.
7. This Court in Shin Murti Rai a Union of India and others. 1997 (2) UPLBEC 1179, has taken a view that if a person is discharged after 8 years from Army on the ground of disability and at the time of Joining of his service, he was hale and hearty, he is entitled for disability pension.
8. As 1 have earlier held that the petitioner suffered disability while in service at high altitude and in the opinion of Medical Board of Army, the petitioner suffered disability while in service at high altitude, petitioner was entitled to disability pension and the respondents illegally rejected the claim of the petitioner.
9. The Apex Court in Ram Pal Singh v. Union of India and others. 1983 (3) SLR 291. has held that interest and compensation may be awarded for the harassment to the petitioner due to non-payment of disability pension. The petitioner has been denied benefits of disability pension and it amounts to harassment of the petitioner, therefore, petitioner is entitled to 10% interest on the disability pension payable to him.
10. In the result, the writ petition succeeds and is allowed. The orders dated 2.7.1987. 5.9.1989 and 4.11.1989 passed by respondents Annexures-3. 5 and 6 to the writ petition are quashed. The respondents are directed to pay the disability pension to the petitioner including entire arrears along with 10% interest within a period of 3 months from the date a certified copy of this order is produced before the concerned respondents.
11. Parties shall bear their own cost.