Ex. Naik Shinderpal Singh v. The Union of India & Ors.

Present : Mr. S.K. Sharma, Advocate for the petitioner. **** VINOD K. SHARMA, J. (ORAL) The petitioner has approached this Court by invoking the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India to claim benefit under the Army Group Insurance Fund. The petitioner was enrolled in Indian Army on 20.3.1986, and during his service, on account of accident, which occurred on

20.12.1994, he was boarded out of service, being Low Medical Category. The petitioner was discharged on 30.9.1999. His claim for benefit under the Army Group Insurance Fund was declined on

10.9.2001. The order declining the relief claimed by the petitioner reads as under :- “1. Refer to your petition dated 27 Jul 2001 and this office letter No. 4466590 / AGIF/ NE dated 29 Aug 2001 addressed to AGI Fund with a copy to you. CWP No. 12991 of 2010 -2- *****

2. It is to inform you that disability benefit claim in your respect has been examined by Army Group Insurance Fund. The same has been rejected by AGI Fund because you were discharged from service on discipline / indifferent attitude to work. Your case has been closed by AHI Fund.” Thereafter the case of the petitioner for grant of disability pension was considered, and it was held by the authorities, that the petitioner has suffered disability by the falling during his service, therefore, the disability was result of the duties performed in the Army. Accordingly vide Annexure P-40 the petitioner was granted disability pension, which was subsequently revised. The revised order of disability pension reads as under :- “1. Please refer the followings:- (a) Your office PPO No. D/RA/11702/2004 (b) This office letter No. 4466590/D/Pen dated 03 Oct 2009 and verbal instr to our courier dated 23 Oct 2009.

2. It has been observed from your above mentioned PPOs that No. 4466590 Ex. Nk Shinderpal Singh was discharged from service under Army Rule 13(3) item III(v) read in conjunction with Army Rule 13(2A) being LMC CEE (P) w.e.f. 01 Oct 1999 with disability 'Fracture Pelvis N 808, E 825”, before completion of terms of engagement. As per initial RMB proceedings, the disability of the indl was regarded as attributable to military service and assessed as 30%. The disability extent on reevaluation was made for life vide RSMB proceedings dated 16 Jul 1999. CWP No. 12991 of 2010 -3- *****

3. As the indl is already in receipt of Disability Element vide your office PPO mentioned in Para 1 above for 30% disablement but as per Para 7.2 of Govt. of India, Min of Def letter No. 1(2)/97/D (Pen- C) dated 31 Jan 2001, he deserves for rounding off provision. As per the said policy he is eligible to get Disability Element @ 50% disablement.

3. In view of the above, the following documents in respect of ibid individual are enclosed herewith:- (a) AFMSF-17 (RSMB) dated 05 Apr 2004. (b) Sheet Roll

4. You are requested to issue Corr PPO duly notifying 50% of disability element at the earliest.” The contention of the learned counsel for the petitioner was, that the claim of the petitioner was wrongly rejected, as in the impugned order it was mentioned, that he was not entitled to benefit, as he was discharged from service on discipline / indifferent attitude to work, whereas the order granting disability pension shows, that the petitioner was in fact thrown out of service due to injuries suffered by him while in service, which was attributable to army service. This Court can not go into the merits, as the writ suffers from delay and latches, as the petitioner is seeking quashing of the order, which was passed on 10.9.2001. The amount payable under the Army Fund was lump sum, which was liable to be paid at the time of discharge, and is not a recurring loss which could entitle the petitioner to file a writ petition after 9 years of passing of order. The learned counsel for the petitioner contended, that the petitioner only came to know, that the reason for rejection was based on non-existence reason, when he received the disability pension in CWP No. 12991 of 2010 -4- ***** November, 2009 and thereafter he had issued legal notice, which was also rejected by directing the petitioner to approach AGI, Fund, New Delhi. It may also be noticed here, that even in the year 2002 the claim of the petitioner by the AGI, Fund was rejected on

28.11.2002. The petitioner was informed, that his claim for benefit under AGI, Fund already stood rejected on 10.9.2001. The copy of the order has been attached as Annexure P-32 with the writ petition. Again on 16.1.2003 vide Annexure P-35, the petitioner was informed, that his claim under AGI, Fund could not be entertained as it already stood rejected on 10.9.2001. The copy of the order is attached as Annexure P-35. In response to the legal notice issued by the petitioner, the petitioner was again informed on 11.7.2009, that his claim for benefit under the AGI, Fund stood rejected on 10.9.2001. The learned counsel for the petitioner contended, that once the petitioner has been making representation, and communication regarding his representation gave him fresh cause of action, therefore, the writ petition can not be treated to be belated or suffering from delay and latches. The learned counsel for the petitioner in support of the contention, that writ does not suffer from delay and latches relied upon the judgment of this Court in the case of Paramjit Singh Vs. Union of India through Secretary, Ministry of Defence, New Delhi and others 2008(2) S.C.T. 210. The reliance on the judgment is misconceived, as this Court was not considering the question of CWP No. 12991 of 2010 -5- ***** delay and latches, but as to whether the authority was justified in denying the benefit under the AGI, Fund scheme. It is now settled law, that mere representation does not give a fresh cause of action. Once the cause of action accrued to the petitioner on 10.9.2001 when his claim was rejected, it was for the petitioner to approach the Court for redressal of his grievance immediately thereafter, in any case when his first representation was rejected in the year 2002. The petitioner instead of approaching the Court kept on filing repeated representations, in spite of the fact, that the respondents conveyed him repeatedly that his claim stood rejected on 10.9.2001 by the AGI, Fund Directorate. This writ petition is dismissed on the ground of delay and latches.

11.08.2010 'sp' (VINOD K. SHARMA) JUDGE