JUDGMENT Vineet Saran, J.
1. The petitioner joined the Indian Army as a Nursing Assistant (Sepoy) on 15.1.1962. After completion of his training he was posted at the Military Hospital, Nasirabad, Rajasthan and thereafter in August, 1.903 was posted in the Field/Ambulance of U.P. Tibet Border. In the year 1905 the petitioner was posted at the Military Hospital, Jhansi and then in 1900 the petitioner was posted to high altitude area in Sikkim in snow bound areas. At the time of said posting, according to the petitioner, due to stress and strain of snow bound area, the petitioner developed some disease which could not be cured there and hence he was sent to the Command Hospital, Calcutta for treatment of his ailment. After due treatment, when the disease could not be cured, on the advice of the Medical Board constituted by the Army, the petitioner was placed in medical category "EEE". On such categorization and on the advice of the Medical Board, by order dated 25.4.1909 the petitioner was discharged from service on medical grounds. On 15.7.1909 the petitioner lodged his claim for payment of disability pension which was forwarded to the Controller of Defence Accounts (Pension), Allahabad. Since the petitioner did not hear anything from the Ministry of Defence, Government of India he sent an application, in response to which, by ' letter dated 3.2.1993, the petitioner was informed that his disability pension claim had been rejected by the Controller of Defence Accounts (Pension), Allahabad 13.8.1909. It has been averred in the writ petition that no such copy of the order rejecting his claim for payment of disability pension had ever been served on the petitioner. However, copy of such order has been filed alongwith the counter affidavit. In the aforesaid circumstances after having been informed that his claim had been rejected, the petitioner filed this writ petition in the year 1995 with a prayer for .a direction in the nature of mandamus to the respondents to pay disability pension as well as service ailment pension to the petitioner with effect from the date of his discharge from service alongwith all the arrears. A further prayer has been made for quashing the orders dated 13.8.1969 and 3.2.1993 and to give all benefits of disability pension to the petitioner alongwith entire arrears.
2. After exchange of.counter and rejoinder affidavits between the parties, this Court, vide its judgment and order dated 29.8.2001, dismissed the writ petition on the ground of laches, as the petitioner had approached this Court nearly 25 years after having been discharged from service on medical grounds. The petitioner challenged the said judgment and order dated 29.8.2001 passed in the writ petition by way of filing Special Appeal No. 644 of 2001. After considering the decision of the Apex Court in the case of M.R. Gupta v. Union of India and. Ors. and that of the Delhi High Court in the case of Major Rajinder Singh v. Union of India and Ors. 2002 (2) E.S.C, 164, the Division Bench held that the order of the learned Single Judge dismissing the writ petition only on account of delay suffered from legal infirmity, and after setting aside the judgment and order dated 29.8.2001, directed that the writ petition be decided on merits.
3. I have heard Sri B.N.Rai, learned counsel appearing for the petitioner and Sri S.K. Rai, learned counsel appearing for the respondents and have perused the record.
4. By order dated 13th August, 1969 the disability pension claim of the petitioner has been rejected on the ground that the disability of the petitioner was neither attributable to nor was aggravated by.military service. The relevant extract of the said order is quoted below:-
"1. Your claim for disability pension was submitted to the Controller of Defence Accounts (Pensions) Allahabad who has decided that the disability from which you suffered during your service in the Army and on which your claim is based:
(a) Is not attributable to military service, and
(b) does not fulfil the following conditions, namely that it existed before or arose during military service and has been or remains aggravated thereby."
2. In view of the above you are not entitled to disability pension under the Army Pension Regulations."
5. Learned counsel for the petitioner has, in support of his case for payment of disability pension, placed reliance on the report of the Medical Board which has been filed as Annexure-C.A.8 to the counter affidavit. He claims that since as per the said report, the petitioner had been invalided from service on account of his disability which was aggravated by military service and the same was assessed by the Medical Board to be at 20 per cent, the petitioner would be entitled to the grant of disability pension as per Regulation 173 of the Pension Regulations for the Army, which reads as under:
"173. Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 per cent or over."
6. Sri S.K. Rai, learned counsel appearing for the respondents has submitted that since as per the report of the Medical Board the disability of the petitioner was a "constitutional one" thus the petitioner would- not be entitled for such pension and hence the order rejecting his claim for grant of disability pension was just and proper.
7. The report of the Board is the sheet anchor of the submission of both the parties. A perusal of the said report goes .to show that the Medical Board had certified that the disability of the petitioner did not exist before his entering the service. The disease/disability of the petitioner as assessed by the Medical Board was "transient situational disturbances" which was first detected on 12.11.1968. The percentage of the disablement assessed by the Medical Board was 20 per cent. In the end the Medical Board has also categorically held that it considered that the disability was aggravated by service.
8. According to the learned counsel for the petitioner, in 1968 it had been found by the Medical Board that the petitioner had been. suffering from such ailment. for two years i.e. from 1966, which was the period when the petitioner was posted in snow bound high altitude area of Sikkim. It has thus been contended that the petitioner had developed this disease while he was posted in snow bound high altitude area and as such the said disability was clearly aggravated during his military service, which has also been accepted by the Medical Board. Thus the petitioner claims that as he fulfils the conditions as laid down in Regulation 173 of the Pension Regulations for the Army he would be entitled for payment of disability pension which has wrongly been denied to him.
9. It is true that the first ground in the order dated 13th August, 1969 for rejecting the disability pension is correct because as per the report of the Medical Board, the.disablement was not found to be attributable to the military service. However, in the facts and circumstances of this case, in my view, the second ground that the disability had not been aggravated due to military service does not appeal' to be correct or based on any sound reason. The own record of the respondents goes to show that the Medical Board had reported that the disability of the petitioner was aggravated because of military service. The percentage of such disability had categorically been assessed to be at 20%, which was within the percentage specified in Regulation 173 of the Pension Regulations for the Army, and as such, in my view, the petitioner would be entitled to payment of such disability pension.
10. The submission of Sri S.K. Rai, learned counsel appearing for the respondents that since the disability of the petitioner was a "constitutional one" and hence it could not be attributed or aggravated by to the military service, does not have much force. Admittedly since at the time of joining the service, the petitioner did not have such disability or the same was never detected, as would be clear from the report of the Medical Hoard, the only logical conclusion would be that the petitioner had developed such disability only after he had been posted in snow bound high altitude area in Sikkim. In my view, even if the disease was a constitutional one, then too, since it was aggravated only because of military service, such cannot be made ground for denying payment of disability pension 'to the petitioner. The 'benefit of doubt should, in such a case, be extended in favour of the army man discharged from service, specially when no such ailment had been detected at the time of his joining the service or even thereafter during the routine medical check up which are held regularly in such service.
11. It is the duty of the Courts to interpret the provisions of law so as to meet out the social obligations. The endeavour of the Courts is to administer justice, keeping in view; the general welfare of the citizens. In the present case, where the petitioner was a member of the armed forces and had entered the Army service at a young age and had suffered medical disability because of his service, social justice demands that he should not be denied his legitimate dues (i.e. grant of disability pension) merely on technicalities of law. Persons who join the armed forces with the intention of serving their nation and are prepared to sacrifice their lives for their motherland, should not be meted out such treatment at the hands of their employer (Government of India in this case) so as to deprive them of their legitimate entitlement. It is a well-settled proposition of law that the award of pension is not made by the employer as a grace, bounty or charity. It is the right of the employee, which he has earned by rendering service while in employment, and cannot be denied to him in an arbitrary manner.
12. Accordingly, for the foregoing reasons, the impugned order dated 13.8.1969 deserves to be set aside and is hereby quashed. It is further held that the petitioner would be entitled to the disability pension and thus it is directed that the petitioner shall be paid his disability pension alongwith arrears, in accordance with law, in the light of observations made herein-above and after taking into considerations the report of the Medical Board and the provisions of Regulation 173 of the Pension Regulations for the Army, within a period of six months from today.
13. This writ petition thus stands allowed. No order as to costs.