R.L. Anand, J.@mdashPetitioner Baldev Singh has filed the present writ petition under Articles 226/227 of the Constitution of India. Though he made two-fold prayer, but during the course of submission learned counsel for the petitioner is only pressing for service element on behalf of his client.
2. Some facts can be noticed in the following manner :
The petitioner was born on 7.3.1951. He was enrolled in the Army on 24.6.1968 and at the time of his enrolment he was medically examined and was placed in category "A". According to the petitioner, he was sent for training and was allocated 20 Mechanised Regt. Infantry. Unfortunately, the petitioner suffered skin disease Seborhbeic Dermatitis (in vernacular known as "Khurk"). On account of this disease he was invalidated from the Army on medical ground and was placed in lower medical category "E" and his disability was assessed at 20% initially. The petitioner was boarded out from the service on 5.3.1970. It was observed by the authorities that this was aggravated on account of Army service. The petitioner was given the benefit of disability pension and he had Been getting this benefit w.e.f. 5.3.1970 upto 29.1.1972, which was again extended upto 7.5.1976. The case of the respondent is that since the disability of the petitioner has been reduced less than 20%, therefore, he is not entitled to the benefit of disability pension.
3. I have heard the learned counsel for the parties and with their assistance have gone through the records of this case.
4. In para No. 7 of the writ petition the petitioner has specifically alleged that apart from the benefit of disability pension he is also entitled to the benefit of service element as per Regulation 186(1) of the Pension Regulations for the Army, 1961 and it will be proper on my part of make mention of the specific allegations of the petitioner, which read as under :
"That it is pertinent to mention that the respondents were bound to continue with the service element as provided in the Regulations 186(1) of the Pension Regulations for the Army, 1961."
5. This part of the writ petition has not been denied specifically or by implication by the respondents. Even otherwise, we all know that there are two incentive ingredients of the pension - one is disability pension, and the other is service element. Since the disability of the petitioner has been reduced to less than 20%, therefore, he is not entitled to the disability pension and this aspect of the case has been conceded by the learned counsel for the petitioner.
6. Now the point is whether the petitioner is entitled to service element or not. Though the learned counsel for the respondents submitted that since the petitioner has not made specific claim with regard to the service element, therefore, he is not entitled to this relief, but this Court is not inclined to accept this contention of the learned counsel for the respondents. Regulation 186(2) of the Pension Regulations for the Army lays down "An individual who was initially granted disability pension but whose disability is re-assessed at below 20% subsequently shall cease to draw disability element of disability pension from the date to falls below 20 per cent. He shall, however, continue to draw the service element of disability pension." Thus the reading of the above regulation will show that the petitioner is entitled to the benefit of service element of disability pension.
7. Resultantly, this writ petition is partly allowed and directions are given to the respondents to release the benefit of service element to the petitioner.
8. Now the ancillary point which arises for determination is from which date the respondents should be directed to pay the benefit of service element to the petitioner. In my opinion, the petitioner can get this benefit only for 38 months prior to the date of filing the writ petition and it is ordered accordingly. The benefit of service element shall be released to the petitioner within three months from the receipt of the copy of this judgment, failing which the petitioner shall also be entitled to interest @ 12% per annum. The petitioner shall appear before the Re-servey Medical Board as and when called upon by the respondents. No order as to costs.
9. Petition partly allowed
