ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR MA 3328 of 2014,MA 3854 of 2013,MA 210 of 2011 and OA 654 of 2011

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1 ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR MA 3328 of 2014,MA 3854 of 2013,MA 210 of 2011 and OA 654 of 2011 Vijay Shanker Sharma Petitioner(s) Vs Union of India and others Respondent(s) -.- For the Petitioner (s) : Petitioner in person and Mr SS Pathania, Advocate For the Respondent(s) : Mr Sandeep Bansal, CGC Coram: Justice Prakash Krishna, Judicial Member. Air Marshal (Retd) Naresh Verma, Administrative Member -.- ORDER The present petition has been filed under section 14 of the Armed Forces Tribunal Act on the pleas inter alia that the petitioner on 9 th February, 1968 was commissioned in the Army as Second Lieutenant in 2 Madras and on 26 th February, 1964 joined 2 Madras in Nagaland. He participated in Indo Pak War and received enemy gun fire on his right knee front. He was sent to Field Hospital, thereafter, to Military Hospital, Ambala Cantt from Military Hospital, Firozpur and then on 16 th October, 1965 was admitted in Army Hospital,Delhi. His medical category was lowered to BEE-2 and was sent to MRC, Wellington. On 9 th February, 1966 he was promoted to Substantive rank of Lieutenant and sustained Grenade blast on forehead right temple in the year 1967 at firing range at MRC, Wellington and was operated. In the year 1967 he was promoted to the rank of Captain and in January, 1968 the President of India offered him permanent regular commission. But on 9 th February, 1968 he was served with a letter asking him to resign his commission. The petitioner was released on 9 th February, Thereafter, he filed various representations raising his grievance that he has been illegally asked to resign from the commission and the said letter asking him to resign from the commission is void and illegal having not been signed by the Chief of Army Staff. In his service book the cause of discharge was incorrectly mentioned as voluntary resignation. War injury pension was also claimed but the same was not paid to him. Hence the present petition has been filed on 16 th May, 2011 i.e. after about 43 years claiming various reliefs.

2 -2-2. Along with the petition, the petitioner has filed application for condonation of delay in filing the petition. 3. On notice, the respondents have filed objections to the application for condonation of delay as well as their written statement raising preliminary objections and disputing the claim of the petitioner on merits also. In the written statement they have come out wih the case that the present petition is barred by time as it has not been filed within 6 months from the date on which final order was passed hence the petition is liable to be dismissed as per section 22 of the Armed Forces Tribunal Act. Further by means of the petition, the petitioner has sought setting aside of the termination order dated 9 th February, 1968 without placing a copy of the said order on record thus, the petition itself is not maintainable. The petitioner having voluntarily resigned is not entitled to any kind of pension despite declared battle causality. The petitioner has failed to give the exact reasons for his release on disciplinary grounds. He remembers everything beneficial to him but has conveniently forgotten to pin point this cause. The petitioner has not come to the Court with clean hands therefore, is not entitled to get any relief. He has tried to mislead the Court to gain sympathy by concealing the material facts from the Court. He has not given any reason as to why he was called upon to resign. The averments made in the petition clearly show that some act of indiscipline etc. was attributed to the petitioner for which a Court of Inquiry was held and he was issued show cause notice. The service and medical documents of the petitioner have already been destroyed by burning after completion of specified period retention i.e. 15 years from the date of release in terms of Para 619(c) of the Defence Service Regulation, Only important personal information itself are held in veteran register maintained at Army Head Quarters. In para 6 of the written statement, the respondents have maintained as per records available with AG/MP- 5 (d), the injury sustained by the officer during Indo-Pak War-1965 on 22 nd September, 1965 has been declared as battle casualty and a certificate was issued to him on 13 th September, 2010 on demand. The petitioner resigned from service on 9 th February, 1968 and has filed the present petition after about 44 years and as such is not entitled to any relief.

3 -3-4. By a separate objection to the application for condonation of delay, the respondents have come out that no case of condonation of delay of 44 years has been made out as admittedly, the petitioner s service was terminated in the year 1968 and the petitioner has sought legal remedy now which is clearly barred by time. 5. When the matter was heard earlier, the Tribunal opined that there is no record of Release Medical Board being held or the percentage of the disability having been decided. Therefore, vide order dated 17 th May, 2013 directed the respondents to get the Re-Survey Medical Board of the petitioner conducted within three months. Re-Survey Medical Board has been conducted and the report of the said Board is on record on pages No.241 to 253 of the paper book. The Board has opined that there is no other medical document available. The Board examined the petitioner in pursuance of the order of the Tribunal and assessed the petitioner s disability as 40% combined of two injuries- (i) gun fire injury on right knee front-20% (ii) injury over right eye-20%, both for life. The said document has been taken on record and there appears to be no ispute with regard to the correctness or otherwise of the said Board proceedings by either party nor any such objection was put forward before us by either of them during the course of hearing. We, therefore, proceed to take the said record as acceptable to both the parties. We find that the petitioner, after close of the arguments when the judgment was reserved, without any leave has filed the written arguments enclosing certain decisions which have been taken into account. But at the same time we do not appreciate such course of action as the copy of the same was not given to the learned counsel for the respondents and it was not got signed by the petitioner by his counsel. 6. Heard the learned counsel for the parties and perused the record. 7. Earlier the petitioner was appearing in person but before us, now he has engaged a lawyer. 8. In the petition, the petitioner has claimed for the following reliefs:- (a) Issuance of an order quashing the impugned orders of respondents (i) calling upon the petitioner to resign his commission w.e.f , UNDER DO Part II/AHQ/Madras/58/68, illegally and unconstitutionally (ii) order dated Annexure A-7 (iii) order dated , Annexure A12, (iv) order dated Annexure A-18 and Annexure A-20 dated (v) order dated Annexure A-34, repeated in Annexure A-41 by virtue of which

4 -4- the petitioner has been denied further service in the Army and the deprived benefits of the War injury/disability pension, service element pension; (b) For the issuance of an order, in the nature of mandamus or any other order or direction, to the respondents to treat the petitioner on duty till the age of superannuation in the rank his Juniors were given with all consequential relief of pay, promotion, pension and war injury/disability/service elements/pension with an interest of 12% on the arrears, till their payments; (c) for issuance of an order to respondents to pay a token compensation of Rs.25 Lakhs to the petitioner, for causing irreparable loss to his reputation, in eyes of his family, friends, colleagues, by illegally calling upon him to resign, using the youth of petitioner, in War and then throwing him out war wounded and disabled; (d) for issuance of an order to respondents to pay a token sum of Rs.1 Lakh, spent by petitioner on his Indo-Pak 65 war injury and another war like operation forehead fracture injury treatment at hands of Civil doctors from Feb, 1968 till date, when such treatment was denied to petitioner by respondents and Military Hospitals, so visited and approached. (e) for issuance of an order to respondents to provide petitioner all entitlements, benefits as applicable to Ex-servicemen like CSD Canteen services/benefits as per law; (f) for issuance of an order to respondents to pay a sum of Rs.1 Lakh or amended to higher as Ex-Gratia package notably pa id to cases like war injury with an interest of 12% w.e.f. cause of war injury to petitioner and (g) for the issuance of any other order or direction which this Tribunal may deem fit and proper in the facts and circumstances of the case. 9. From the above, it is clear that the petitioner has questioned the legality and constitutionality of his resignation from commission on 9 th February, 1968, the order dated 14 th November, 1996, the order dated 6th December, 2007 and order dated 4 th June, Not only that, the petitioner has sought order in the nature of mandamus directing the respondents to treat the petitioner on duty till the age of superannuation and to pay him total compensation of Rs.25 Lakhs for causing irreparable loss to his reputation etc. He has also claimed certain other amounts as damages, detailed in the relief clause. 10. On hearing the learned counsel for the petitioner and the petitioner as well at some length, it was pointed out by us as to how the relief against the order dated can be granted to the petitioner at this distance of time? The learned counsel for the petitioner on getting instructions from the petitioner as recorded in the order dated 9 th July, 2014, stated that the petitioner is confining his petition to the extent of

5 -5- his claim with regard to war injury pension. However, the petitioner was directed to file his own affidavit in this regard and the matter was adjourned. In pursuance of our order, the petitioner has filed his own affidavit confining his claim in the petition for grant of war injury pension. The affidavit has been placed at page No.279 of the paper book. In the affidavit the petitioner has stated that he restricts the relief for war injury pension and for grant of status of ESM with consequential benefits like issue ESM Card, amended service record, ECHS and CSD facilities etc. But at the time of arguments except for pressing the petition for war injury pension, no argument was advanced in respect of other things. The relevant Orders, Rules etc. dealing with grant of benefits as applicable to Ex-servicemen with regard to CSD Canteen etc. were not placed before us nor referred to or argued. 11. Although the petitioner has given up the case with regard to legality or validity of his voluntary resignation but at the same time we may note that the petitioner himself is not clear in his mind as to whether it is a case of voluntary resignation or he was asked to resign. It appears that the petitioner has been taking shifting stand and the respondents have pleaded that service records of the petitioner have been destroyed as burnt in the month of February, The petitioner himself has filed a copy of his first service book as Annexure A-14 wherein in column 8 it is mentioned that it is a case of resignation-9 th February, In column 9 reason for release has been assigned as resignation. Strangely enough that in para 4.12 the petitioner has made a reference to some order calling him to resign and termed as illegal as not signed by Chief of the Army Staff and also not constitutionally procedured. He has not filed copy of the said order along with the petition. The petition reveals that the petitioner is quite aware of his rights and he has obtained various documents by filing successive applications under RTI Act. But he has not annexed either a copy of his resignation letter or the copy of order asking him to resign. In para 4.13 of the petition, the petitioner has stated that he was given railway warrant as token of order and was pushed out of Army on 9 th February, He was asked to sign on various blank papers purported to be essential for his speedy discharge and further to be used for his war injury. The petitioner has signed those documents under duress and dire consequences. He never voluntarily resigned nor applied for resignation or premature retirement. The

6 -6- petitioner is raising all these disputed questions of facts by means of present petition and there is apparently no explanation as to why the petitioner could not have approached the Court earlier for redressal of his grievances. 12. In State of Punjab & others Versus Gurdev Singh, Ashok Kumar, AIR 1991 SC 2219 similar controversy was up for consideration before the Apex Court. With considerable delay order of dismissal was challenged before the Punjab & Haryana High Court on the ground that the order of dismissal was illegal, ultra vires, unconstitutional, against the principle of natural justice, thus, the petitioner therein continue in service. The said plea was found favour with the High Court but the said judgment has not been approved in appeal by the Apex Court. The Apex Court has found that even if the dismissal order is illegal, the employee should have come to the Court within the period of limitation as prescribed in such cases. The relevant portion of the judgment is reproduced below : In the instant cases, the respondents were dismissed from service. May be illegally. The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal. They have not been paid their salary from that date. They came forward to the Court with a grievance that their dismissal from service was no dismissal in law. According to them the order of dismissal was illegal, inoperative and not binding on them. They wanted the Court to declare that their dismissal was void and inoperative and not binding on them and they continue to be in service. For the purpose of these cases, we may assume that the order of dismissal was void inoperative and ultra vires and not voidable. If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. If need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does no quash so as to produce a new state of affairs. But nonetheless the impugned dismissal order has at least a de facto operation unless it is declared to be void or nullity by a competent body or Court. In Smith V. East Elloe Rural District Council, (1956) AC 736 at 769 Lord Redcliffe observed : An order even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its fore-head. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. Apropos to this principle, Prof. Wade States: the principle must be equally true even where the brand of invalidity is plainly visible; for their also the order can effectively be resisted in law only by obtaining the decision of the Court. Prof. Wade sums up these principles : The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff s lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the void order remains effective and is, in reality, valid. It follows that an order may be void for one

7 -7- purpose and valid for another, and that it may be void against one person but valid against another. It will be clear that these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires, the Court cannot give the declaration sought for. 13. In view of the above, the petitioner s petition questioning the legality and validity of the voluntary resignation dated 9 th February, 1968 is concerned, is clearly barred by time. In the above case the argument that a person continues to be in service being release order bad and is therefore, entitled for all other consequential benefits has been negated by the Apex Court expressly. Consequently, the claims of the petitioner that he shall be deemed to be continue in army service till his age of superannuation and is entitled for consequential benefits like promotion, salary etc. are liable to be rejected. As a collary, the claim for damages etc. has the same fate. 14. Now we take up the second issue which as a matter of fact is vital issue with regard to the entitlement of the petitioner to get war injury pension. The petitioner participated in the Indo Pak war and got his front right knee injured and subsequently in another incident got injury over right eye. Both these injuries have been examined by the Re- Survey Medical Board in pursuance of the order dated 17 th May, 2013 passed by the Tribunal. The Re-Survey Medical Board has found compound disability of the two injuries to the extent of 40% for life. There appears no issue between the parties with regard to the fact that the petitioner suffered first disability during Indo Pak war. It is almost admitted case of the respondents as would be apparent from para 6 of the written statement. Further, the respondents have also admitted that the injury suffered by the officer (petitioner) during Indo Pak war on 22 nd September, 1965 as a battle casualty and a certificate was issued to him on 13 th September, Alongwith the petition, the petitioner has filed a copy of the battle casualty certificate as Annexure A-27 which is at page 132 of the paper book. It reads as follows :- BATTLE CASUALTY CERTIFICATE Ec Capt (Then 2/Lt Vijay Shankar Sharma was War wounded Casualty during Indo-Pak War As per record maintained by this HQ the officer is Battle Casualty w.e.f. 22 Sep,1965. Place New Delhi Dated :13 Sep 2010.

8 -8- Evidently, thus it is crystal clear that the petitioner has suffered war wound casualty during Indo-Pak war The second aspect is whether the petitioner is entitled to get war injury pension on these facts. 16. We find that Government of India, Ministry of Defence by its letter No /Pen-C/71 dated 24 th February, 1972 has introduced for the first time liberalised pensionary awards for war widows and war disabled servicemen. reproduced below :- For the sake of convenience the same is To The Chief of the Army Staff, The Chief of the Naval Staff The Chief of the Air Staff Subject :- Liberalised pensionary awards for war widows and war disabled servicemen. Sir, In partial modification of the existing rules and orders relating to the grant of special family pensionary awards and disability pension, I am directed to convey the sanction of the President to payments being made, as indicated in Annexures I and II to this letter, in the case of officers and personnel, as well as NCsE of the armed forces (including the Army Postal Service and the embodied units of the Territorial Army ) and officers and personnel of the Defence Security Corps, killed in action or disabled on account of injuries sustained in the recent operations against Pakistan commencing from 3 rd December, The awards sanctioned by this letter will be admissible also in the case of the above categories of personnel killed in action or disabled on account of injuries sustained (i) In the international wars of 1965 (including Kutch and Kargil operations)... (ii) (a) as a result of fighting in war like operations or border... (b) while fighting against armed hostiles, like Nagas and Mizos, (c) during fighting in service with peace-keeping Missions abroad, after 15 th August, 1947 ( as per Ministry letter No /Pen-C, dated the 16 th September, 1966) (iii) During laying or clearance The benefits will be admissible with effect from 1 st February, 1972, or the date of death or disablement of the serviceman, as the case may be, whichever is later. 3. Payments already made The awards sanctioned in this letter are in the nature of a special dispensation and will not be subject to alteration, as a result of any revision of the pay and pension structure as may be sanctioned in future. Temporary and/ ad-hoc increases in addition to these special awards. However where and for so long as awards admissible under the existing rules and orders happen to be more favourable than those sanctioned hereunder, the higher entitlements will be payable and the difference will be allowed as ad-hoc grant. 5. This issues with the concurrence of the Ministry of Finance (Def) vide their u.o. No.565/Addl.A.(D) of Yours faithfully ; Sd/ (N.S.S. RAJAN0 Deputy Secretary to the Govt. of India, UP SACHIVA Copy to :- X X X X X X X

9 The learned counsel for the petitioner submits that officers and personnel as well as NCsE of the armed forces (including the Army Postal Service and the embodied units of the Territorial Army and officers and personnel of the Defence Security Corps, killed in action or disabled on account of injuries sustained in the operations against Pakistan commencing from 3 rd December, 1971 are entitled to get liberalised pensionary awards admissible to war widows and war disabled servicemen. The said order further provides that the benefits will be admissible with effect from 1 st February, 1972, or the date of death or disablement of the serviceman, as the case may be, whichever is later. The submission is that in view of the above the petitioner is entitled to get war injury pension from the date of disablement and in alternaive from the date of discharge. 18. In contra, the learned counsel for the respondents submits that in view of Regulation 16 contained in Chapter 2 of the Pension Regulations for the Army, 1961 the petitioner is not entitled to get war injury pension. Submission is that in view of sub Rule (3) of Regulation 16 as according to own saying of the petitioner he was called upon to resign and he having resigned, is not entitled to get pensionary benefits. 19. On careful consideration of the matter we are unable to agree that the learned counsel for the respondents for two reasons. Firstly Army order dated 24 th February, 1972 reproduced above has been issued- partial modification of the existing Rules and orders relating to the grant of special pensionary awards, special family pension and disability pension. Further the narration in the said order is indicative of the fact that the Government of India decided to grant special family pension and disability pension in addition to the then existing pensionary benefits. To put it simply, by means of above army order the Government of India conferred new/ additional benefits to certain class of army personnel who died or survived with the injuries under the circumstances mentioned in the said order, with regard to the entitlement of such army personnel or to his legal representatives and kins. The Government of India has come forward to extend helping hands to the soldiers who lost their lives or got injuries in the Indo Pak war or the like as mentioned in the said order. To put it differently, war injury pension award which was not earlier included in pensionary awards has been

10 -10- included for the first time through the said army order, therefore, it shall be governed and controlled by the terms and conditions of the said AO order, without any external aid. The AO leaves no manner of doubt as to what we have said above. It particularly modifies the existing rules and orders relating to family pensionary awards and disability pension. Para 4 of the above AO army order further strengthens our above opinion which says that the awards sanctioned through this letter are in the nature of additional financial benefits to a class of army personnel. Reliance has been placed on the Government of India, Ministry of Defence letter dated 9 th Regulation 16 & 113 of para 3 reads as follows :- June, 1999 having subject Amendment to Pension Regulations for the Army,1961. Its An individual who is compulsorily retired or removed on grounds other than misconduct or discharged under the provisions of Army Act, 1950 and the rules made there under, remains eligible for pension/and/or gratuity as admissible on the date of discharge. This will suo-moto apply to cases of dismissal/removal converted into discharge subsequently. The aforesaid quoted portion further clarifies the position that such an individual who is compulsorily retired or removed on the ground other than misconduct remains entitled for pension. But the petitioner omits to read its para 7 which says that the provisions of this letter shall come into effect w.e.f and the case decided between till date of this letter will not be reopened. 20. Learned counsel for the respondents submits that the petitioner was asked to resign which implies that there was something wrong and therefore, according to him the petitioner cannot drive any benefit in view of the above quoted portion by the petitioner. It is true that the petitioner has stated in the petition that he was asked to resign but from his discharge book, the cause of discharge is resignation. The matter being old one and the record having been weeded out, we feel no difficulty to take into account the discharge book of the petitioner for the present limited purpose, and proceed accordingly. 21. The learned counsel for the petitioner has relied upon the decision given by the Apex Court in Union of India and others Versus Lt.Col. PS Bhargava AIR 1997 SC 565. In this the Supreme Court was called upon to interpret Regulation 16 of the Pension Regulations for the Army, It has been laid down that Regulation 16 does not cover a case of voluntary resignation. The pension if earned will be payable to such an

11 -11- officer who has submitted voluntary resignation and such officer cannot be deprived of pensionary benefits. Without going into the question under what circumstances, the petitioner submitted his resignation, it is evident that he had earned the war injury pension and on the principle as laid down by the Apex Court in the above case, he cannot be automatically deprived of the same in the absence of any such rule. 22. Thus we are of the opinion that Regulation 16 of the Pension Regulations for the Army, 1961 is not applicable on war injury pension as it is controlled by the army order dated 24 th February, 1972 and secondly there being no rule depriving an army personnel who has earned pensionary benefits including war injury pension, the petitioner cannot be deprived of the same. 23. In short the case of the petitioner for grant of 20% war injury pension is on terra firma and he is entitled for the same but from what date, is another question. Learned counsel for the petitioner submits that the war injury pension is payable to the petitioner from the date of discharge i.e. 9 th February, 1968 which is disputed by the learned counsel for the respondents who submits that such a belated claim is liable to be rejected on the ground of limitation. 24. The learned counsel for the petitioner has placed strong reliance upon the judgment of the Apex Court given in S.K.Mastan Bee Versus The General Manager, South Central Railway & another, decided on in Appeal (Civil) 8089 of We find that the said judgment was rendered on the particular facts of that case. There the petitioner was an illiterate lady at the time of death of her husband she did not know of her legal rights and had no access to any information as legal assistance to her right to family pension and to enforce such rights. But the facts of the present case are quite different and distinct. The petitioner is a literate person and being a commissioned officer was fully aware about the factual and legal position but he created mess by questioning his discharge from army after about years. We may also note one judgment of the Apex Court in Union of India Versus SPS Wans 2008(9) SCC 125 wherein the arrears were restricted to three years preceding the date of filing of the writ petition. 25. We can also refer the judgment of the Apex Court in the case of Union of India Versus Tarseem Singh (2008) 8 SCC 648 wherein the Apex Court held that in service matters, pension matters in particular, a

12 -12- person has continuing cause of action and granted the relief by restricting it to three years preceding the date of petition. 26. Viewed as above the application for condonation of delay filed by the petitioner in filing the petition being MA 210 of 2011 stands disposed of by holding that the petitioner is entitled for war injury pension from the date of his discharge but in view of delay he is actually entitled to get the arrears of the same preceding three years from the date of petition. It will not be out of place to mention here that in the application for condonation of delay the petitioner has harped that the respondents never heard his grievance who is now senior citizen and he continued to visit in person from time to time and ultimately received letter dated 24 th January, 2011 rejecting his claim for war injury pension. It is an acknowledged position that by mere filing successive representatives, the period of limitation does not got extended. 27. Now we take up the next question with regard to claim of disability pension set up by the petitioner. The petitioner submits that he is entitled for disability element of pension at 20% due to the injury suffered by him over his right eye at the time he was posed at Wellington. As stated herein above, no release medical board of the petitioner was held at the time of discharge but in pursuance of the order passed by the Tribunal, the petitioner was medically examined by the Re-Survey Medical Board. The Board has found that in addition to gun fire injury on right front knee, the petitioner has suffered injury over his right eye 20% for life. Elaborating the argument, the learned counsel for the petitioner submits that the disability pension should be granted at 50% as per para 7.2 of army order No. 1(2)/97/D (Pen-C) dated 31 st January, 2001 of the Ministry of Defence. In reply, the learned counsel for the respondents submits that the petitioner has not completed minimum qualifying service to earn pension and secondly, he voluntarily resigned as is evident from his service book, is not entitled to get disability element of pension in view of Regulation 48 of the Pension Regulations for the Army, In para 11 of the judgment, it has been held that as per entries in the service book, it is a case of voluntary resignation submitted by the petitioner. 28. We find that the issue raised by the petitioner with regard to disability element of pension is not res-integra and has been set at rest by the Apex Court in Civil Appeal No.1002 of 2006 Union of India

13 -13- Versus Ajay Wahi, decided on reported in (2010) INSC 455 wherein it has been held as follows : Para 18- We are of the opinion that an army officer is entitled for disability pension only when he is invalided out of service on account of disability attributable to military service or aggravated thereby and shall not be entitled for disability pension in case of voluntary retirement, unless it is found and held that the officer deserves to be invalided out of service on account of disability attributable to military service but the same shall not be granted to him for unjustified reasons and forcible voluntary retirement. 29. Reverting to the facts of the present case, it has been noticed in the earlier part of the judgment and is also the case of the petitioner that no Release Medical Board of the petitioner was held at the time of his discharge and he was discharged unceremonialy. There is nothing before us to show except the statement of the petitioner that he suffered disability on his right eye. The fact that the petitioner never asked for any medical board since the date of his release i.e 9 th February, 1968 for the last about years is also indicative of the fact that the said injury is neither attributable to nor aggravated by military service. Except the statement of the petitioner, there is no medical record to show that the said injury is attributable to or aggravated by military service. Noticeably, the Re Survey Medical Board held in pursuance of the order of the Tribunal has noted that there is no pre medical board of the petitioner. In the absence of any material, it cannot be held that the injury on the right eye of the petitioner either is attributable to or aggravated by military service. The attending facts and circumstances of the case also support our above opinion. 30. In view of the above, it is held that the petitioner is not entitled for disability element of pension. 31. Lastly, we find that the petitioner has claimed that he should be given status of Ex- serviceman and benefits of CSD Canteen facility and ECHS facility etc. Necessary pleadings in this regard are lacking nor any argument was advanced with regard to the above. However, we find that along with the petition, the petitioner has enclosed a copy of the order dated (Annexure A-7) denying above facilities on the ground that he is not getting any pension from the army. In view of the changed scerio, it is desirable that the above issue so raised by the petitioner may be revisited and re-looked by the concerned authorities. Without recording any finding on merits of the claim, we provide that if the petitioner files any such representation with regard to these benefits

14 -14- before the competent authority, the competent authority shall pass an appropriate order taking into consideration the changed circumstances of the case. It will also keep in mind that the petitioner is war wounded army personnel and he is getting war injury pension as indicated herein above. We add as advice to the petitioner that he should restrict his claim to the preceding items only and in the representation he will not narrate unnecessary facts. 32. In nutshell, we record the findings as follows : (1) The petitioner is not entitled to challenge his release order dated 9 th February, The petitioner resigned from the commission and the said order has attained finality. The order dated 9 th February,1968 is hereby confirmed. (2) The petitioner is not entitled to get Rs.25 Lacs as compensation or any other amount as compensation and all these reliefs are hereby denied. (3) The petitioner is entitled to get war injury pension at the rate of 20% with effect from three years preceding the date of filing of the present petition. (4) The petitioner is not entitled for disability element of pension. (5) The petitioner is permitted to approach the authorities concerned for the grant of CSD Canteen facility, ECH facility etc. and if such representation is filed within a period of one month, the competent authority shall take decision in the light of the judgment within three months from the date of receipt of the copy of the judgment. (6) All the pending applications stand disposed of in the terms of the judgment. In the result the petition succeeds and is allowed to the extent stated above. The respondents are directed to make necessary calculations, make payment to the petitioner, within a period of three months from the date of receipt of certified copy of this order by learned counsel for the respondents failing which the amount shall carry interest at the rate of 10% per annum from the date of order. (Justice Prakash Krishna) (Air Marshal (Retd) Naresh Verma) tyagi Whether the judgment for reference to be put on internet-yes/no.