S.K. Mastan B ee v. General Manager, South Central Railway) , submits that having regard & Anr.

Heard Mr. B. Chokraborty, learned counsel for the petitioner as well as Mr. N. Borah, learned CGC. By means of this writ petition filed on 09.03.2005 the petitioner, an Ex -Rifleman, Assam Rifles, has called in question his discharge from service way b ack in 1968 (16.12.1968). He was so discharged from service being found medicall y unfit. On being asked as to how the action in discharging the petitioner from s ervice on the ground of medically unfit way back in 1968 can be put to challenge after nearly 35 years, Mr. Chokraborty, learned counsel for the petitioner sub mits that although the petitioner was discharged from service on the aforesaid g round, but the discharge certificate was issued only in 1976. If we take the sai d date as the basis of the writ petition, then also there is delay of nearly 30 years. Mr. B. Chakraborty, learned counsel for the petitioner has also referred to the representation dated 12.08.1989 followed by further representations date d 06.11.1995 and 08.11.1995 allegedly made by the petitioner to the Assam Rifles authority claiming pension. He has also referred to Annexure -D reply dated 07. 08.2003 by which the petitioner was informed that he was not entitled to disabil ity pension. The above was followed by legal notice dated 06.01.2004 which was also r eplied to by the Assam Rifles authority by Annexure-F letter dated 22.01.2001 re iterating the same stand. The petitioner was also informed through his engaged c ounsel that he was not entitled to disability pension and that he had already be en granted service gratuity. The said reply was furnished on 26.02.2004. In the counter affidavit filed by the respondents apart from raising the plea of delay and latches on the part of the petitioner, they have also contend ed that after nearly 35 years, the records pertaining to the case of the petitio ner are not available. It has also been stated that since the petitioner suffere d from medical disability which is not attributable to service and since he was guided by CCS Pension Rules, he was not entitled to disability pension. Mr. B. Chokraborty, learned counsel for the petitioner by placing relian ce on the decision of the Apex court reported in (2003) 1 SCC 184 (S.K. Mastan B ee vs. General Manager, South Central Railway and another) , submits that having regard to the peculiar facts and circumstances involved in the case, the delay in filing the writ petition is required to be condoned. In S.K. Mastan Bee (Supra), the issue involved was family pension. The employee in question died while he was in service. However, his illiterate wife was not aware of the right to pension. It was in such circumstances, the delay for making the claim for family pension was ignored. It was held that denial of pension to the illiterate lady was violative of Article 21 of the Constitution of India. Needless to say that ratio of a case will have to be understood in the b ackground of fact situation involved in each case. Unlike the said case, in the instant case the petitioner after discharge from service on the ground of medica lly unfit, has approached this Court after about 35 years from the date of disch arge. The petitioner has claimed that his discharge from service on medical grou nd was illegal and that he is entitled to disability pension. Thus, the instant case unlike that case before the Apex Court, will require adjudication as to whe ther the petitioner was rightly discharged from service on medical ground or not . The question therefore before this Court is as to whether the impugned a ction of the respondents way back in 1968 can be adjudicated in the writ petitio n filed after 35 years. Although the petitioner has placed reliance on the certi ficate dated 19.07.1976 so as to contend that it was only through the said certi ficate the petitioner could come to know about his discharge from service in 196 8, but the fact of the matter is that the petitioner was discharged from service w.e.f. 16.12.1968. Merely because the petitioner was provided with a discharge certificate subsequently in the year 1976 that cannot give rise to any fresh cau se of action, more particularly when there is no explanation as to what the peti tioner did between 16.12.1968 and 19.07.1976. The respondents in their counter affidavit have categorically stated tha t the petitioner was discharged from service in 1968, the fact which the petitio ner himself has admitted. Even if we take the cause of action from the date of t he aforesaid certificate in 1976, then also there is delay of 30 years in prefer ring the writ petition. Although the petitioner has placed reliance on the respo nse shown by the respondents vide their letter dated 07.08.2003, 21.02.2004 and 26.02.2004, the same cannot give rise to any fresh cause of action to the petiti oner. By the said communications, the petitioner was only intimated regarding hi s claim for disability pension. Independent of the above, I have examined the case of the petitioner. Al together the petitioner had rendered service for 8 years, 6 months and 2 days. Further, disability of the petitioner was not attributed to the service conditio n. That being the situation, the petitioner is not entitled to any disability pe nsion. Before parting with the case records, I may refer to the decision of the Apex Court in Ratan Chandra Sammanta and ors. vs. Union of India and ors. repor ted in AIR 1993 SC 2276 . In the said case, the Apex court observed that delay i tself deprives a person of his remedy available in law. A writ is issued in fav our of a person who has some right and not for sake of roving enquiry leaving sc ope for manoeuvring. In that case the delay was of 15 years and the claim of th e petitioner was for similar treatment like that of other retrenched employees. However, the Apex Court noticing the delay in approaching the court, declined to grant the same relief to the petitioner. For all the aforesaid reasons, I do not find any merit in the writ petit ion and accordingly it is dismissed.