@JUDGMENTTAG-ORDER
1. No one has appeared on behalf of the respondent.
2. We have heard Mr.A.K.Sinha, learned senior counsel for the appellants.
3. This appeal has been filed against order dated 13.04.2007 passed by the High Court of Himachal Pradesh at Shimla by which the appeal filed by the Union of India, challenging the judgment dated 06.05.2003, passed by the learned Single Judge, has been dismissed.
4. The respondent was enrolled in 19th Punjab Regiment as Sepoy. He was posted in Uri Sector in Jammu & Kashmir till 26.11.1969 when he was boarded out on medical grounds. The case of the respondent was that when he was enrolled in Army at the age of 18 years, he was medically fit and he served the appellants for more than seven years on regular rolls. In March, 1965 when the respondent was playing basketball match, he sustained injury and his left jaw was broken. He got treatment in various hospitals and was put before the Medical Board who downgraded his medical category EEE (E) (Permanent). He was sent to Meerut Cantt from where he was medically boarded out and discharged from the Army w.e.f. 26th November, 1969. The respondent made a claim for grant of disability pension which was forwarded. Later on, he was informed that his case for grant of disability pension, which was forwarded, had been misplaced and he was required to submit a fresh claim. Subsequently, an order was issued on 06.05.1986 informing the respondent that his claim for disability pension was rejected. The respondent preferred an appeal against the rejection of his claim for disability pension, which was also rejected by an order dated 06.11.1987. An appeal preferred by the respondent was also rejected. Thereafter, the respondent made another appeal to the Army Headquarter. Being unsuccessful, a writ petition was filed before the High Court. The learned Single Judge of the High Court allowed the petition filed by the respondent herein against which the LPA filed by the appellants was also dismissed. Hence, the appellants has preferred the present appeal.
5. Learned senior counsel for the appellants submits that the High Court ought not to have entertained the writ petition after lapse of such a long period i.e. 28 years. Learned senior counsel submits that the respondent was boarded out in 1969 and the writ petition was filed in 1997.
6. We have considered the submission of the learned senior counsel for the appellants and perused the record.
7. Learned Single Judge of the High Court, vide its judgment dated 06.05.2003, allowed the claim of the respondent for grant of disability pension with effect from the date he was invalidated out of service and a direction was issued to make payment of arrears within three months, failing which interest at the rate of 12% per annum was directed to be paid. Letter Patent Appeal was filed by the Union of India against the judgment of the learned Single Judge. The Letters Patent Appeal was admitted by the High Court only on the following question:
"Heard learned counsel for the parties.
The limited question which may fall for our consideration in this appeal ultimately would be as to whether the respondent can be held entitled to the arrears of the disability pension and that too confined to the ground of latches.
On the aforesaid limited question, this appeal is admitted."
8. The only question in the Letters Patent Appeal was as to whether the writ petitioner was entitled for arrears of the disability pension due to latches. The claim of disability pension, thus, on the ground of latches, was not under consideration. The limited issue was grant of arrears of disability pension from the date of boarding out till the date of the learned Single Judge.
9. This Court, in the present appeal, has not granted any interim order, staying the payment of arrears of disability pension. In the facts and circumstances of the present case, we are of the view that equity lies in favour of the respondent in not interfering with grant of arrears of disability pension, which has already been received by him.
10. Learned counsel for the appellants has also relied on a judgment of this Court dated 20.04.2007 in Civil Appeal No.762 of 2001 (Union of India & Ors. v. Keshar Singh) where this Court took the view that the respondent was not entitled for disability pension. However, even after holding that the respondent was not entitled for disability pension, this Court directed that the payment already made to the respondent by way of disability pension shall not be recovered from him. The operative portion of the aforesaid judgment is as follows:
"The respondent is not entitled to disability pension. However, on the facts and circumstances of the case, payment already made to the respondent by way of disability pension shall not be recovered from him. The appeal is allowed but in the circumstances without any order as to costs."
11. In view of the above, we are of the view that no error was committed by the Division Bench of the High Court while dismissing the appeal of the appellants insofar as payment of arrears of disability pension was concerned.
12. In the peculiar facts and circumstances of the present case, we are of the view that the present is not a case where this Court may interfere with the impugned order passed by the High Court.
13. The appeal is accordingly dismissed.
