Ex Jwo Kewal Krishan Vij v. Union of India and Ors

RAJIV SAHAI ENDLAW, J.

ASHA MENON, J. SEPTEMBER 08, 2020 "PP/gsr"..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 8th September, 2020 + W.P.(C) 6093/2020 EX JWO KEWAL KRISHAN VIJ .... Petitioner Through: Mr. Bharat Singh, Adv. Versus UNION OF INDIA & ORS. ...Respondents Through: Mr. Abhay Prakash Sahay, CGSC with Ms. Indira Goswami and Ms. Mannu Singh, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON'BLE MS. JUSTICE ASHA MENON [VIA VIDEO CONFERENCING] JUSTICE RAJIV SAHAI ENDLAW CM No.21897/2020 (for exemption). 1. Allowed, subject to just exceptions and as per extant rules. 2. The application is disposed of. W.P.(C) 6093/2020. 3. The petition impugns the order dated 17th March, 2020 of the Armed Forces Tribunal, Principal Bench, Delhi (AFT), of dismissal of OA No.1051/2018 filed by the petitioner (impugning the order dated 5th January, 2018, rejecting the claim of the petitioner for disability pension) and seeking mandamus to the respondents Indian Air Force (IAF) to award disability pension, from 1st April, 1979 onwards to the petitioner, along with interest at 12% per annum. 4. This petition under Article 226 of the Constitution of India has been preferred, relying on Balkrishna Ram Vs Union of India (2020) 2 SCC 442. 5. The AFT has dismissed the OA preferred by the petitioner solely on the ground that the challenge therein, made/filed in the year 2018, to the order dated 7th June, 1979, was belated and could not be considered. It was held that the petitioner was informed as far back as on 7th June, 1979, that the claim of the petitioner for disability pension, after having been invalidated out of the Air Force on 31st March, 1979 (owing to low medical category), had been rejected and the appellant was also informed of the remedy of appeal thereagainst but had not preferred any appeal and allowed the order to attain finality and could not be permitted to challenge the same after more than 38 years. 6. Though no error can be found in the reasoning given by the AFT in the impugned order and we do not consider this to be a fit case, also, for going into the question of maintainability of a writ petition in this Court owing to the provisions of Sections 30 and 31 of the Arms Forces Tribunal Act, 2007, but the counsel for the petitioner has based his claim before this Court solely on the order dated 13th May, 2019 of the AFT in OA No.721/2017 titled Ex-Gunner Vasant Mokashi Vs. Union of India whereby the claim of the petitioner therein, who had also been invalidated out on 28th August, 1978, for disability pension, made in the year 2017, was allowed, though with effect from three years prior to the institution of that petition in the AFT. The contention of the counsel for the petitioner is that though Ex-Gunner Vasant Mokashi supra, similarly placed as the petitioner herein, has been granted disability pension inspite of the same being highly belated but the case of the petitioner, who was a Junior Warrant Officer (JWO), has been rejected. 7. The claim of the petitioner before the AFT was, that (i) the petitioner was enrolled in the IAF in a medically and physically fit condition; (ii) a member of the IAF is to be presumed to be in sound physical and mental condition upon entering service, if there is no note or record to the contrary at the end of the entry and in the event of his subsequently being invalidated out from service on medical grounds, any deterioration in his health is to be presumed due to service conditions; (iii) the petitioner was under stress and strain due to the rigours of service conditions "which may have led to the occurrence of disability"; (iv) the action of the respondents IAF of denying disability pension to the petitioner is illegal; reliance is placed on Dharamvir Singh Vs. Union of India (2013) 7 SCC 316 and on Union of India Vs. Rajbir Singh (2015) 12 SCC 264; (v) for the purpose of determining attributability of disease to military service, what is material is whether the disability was detected at the time of enrolment and if no disability