Nafa Singh vs Union Of India (Uoi)
2004 Latest Caselaw 748 Del

JUDGMENT

Gita Mittal, J.

1. By this writ petition the petitioner has claimed entitlement to disability pension on the ground of his having been invalidated out of military service in low medical category. The facts giving rise to the present writ petition under Article 226 of the Constitution of India lie in a narrow compass. The petitioner was enrolled in Rajputana Rifles of the Indian Army on 16th December, 1962. It is claimed that finding difficulty with his vision he was medically examined and was invalidated from the Indian Army on 1st March, 1969. It is further claimed that the petitioner is entitled to disability pension in terms of Army Pension Regulations Part-I, 1961 (Appendix-II) which has been illegally denied to him. The petitioner claims to have served a legal notice dated 22nd November, 1999 claiming entitlement to the disability pension which has not been granted. Hence the present writ petition.

2. In their reply, the respondents have not disputed the factual matrix. However while denying entitlement to the disability pension it has been urged that the petitioner was admitted in the Military Hospital, Dehradun on 16th April, 1968 and remained admitted therein till 8th June, 1968. A Medical Board was held at the Military Hospital, Dehradun which opined that the petitioner was suffering from "ATROPHIC BULBI(RT)" and he was down graded to low medical category CEE(permanent). His further retention in the Army service was not recommended by the Commanding Officer and the petitioner was also unwilling to continue to serve the Indian Army. The unwillingness certificate executed by the petitioner on 30th August, 1968 has been placed on record. As a result, a discharge order dated 11th September, 1968 was issued in respect of the services of the petitioner.

3. Our attention has been drawn to the proceedings of Release Medical Board which was conducted at the Military Hospital in Dehradun from 9th October, 1968 to 11th November, 1968. The proceedings and findings of the Medical Board have been placed on record by the respondents. The petitioner has given a statement about diminution of his vision since 7 to 8 years preceding the Medical Board. The relevant portion of the proceedings(opinion of the Board being italicised) which is necessary for adjudication of the present matter is set out as hereunder:-

2. In the opinion of the Medical Board and with reference to the emergency rules(Min.of Def letter No.A/1927/AG/PS(a)/8848/Pen-C dated 26 Dec 1962) is the disability due to :-

(a) Disease attributable to service during the emergency wef 8-9-62 or No

(b) Disease which has been and remain aggravated by such service during the emergency No

4. If the answer to (a) and (b) of question (2) are in the negative, do the board consider -

(a) (i) That the disease existed during service before the emergency and or yes in a latent form prior to enrollment.

(ii) That the individual at the time of commencement of emergency was not fit the service demanded of him in the Med.Cat.

He was apparently fit after prescribing glasses.

(iii) What are the reasons and evidence on which the answer to (i) and (ii) above are based. The disability is of gradual on set and the patient had diminished vision of Rt. Eye prior to enrollment.

(b) That there was both a deterioration in the man's condition during service during the emergency? If so, on what evidence do the board base their opinion that it is not due to service during the emergency No such deterioration.

(c) That, to their satisfaction; no deterioration has resulted from neglect, delay, fault technique or lack of reasonable skill in service Medical treatment or the exigencies of service before during or after that treatment. No such deterioration."

These proceedings of the Medical Board are signed by the petitioner.

5. Based on its detailed examination, the Medical Board had categorically opined as under:-

2(a) In respect of each disability the Medical Board on the evidence before it will express its views as to whether :-

(i) it is attributable to service during peace or under field service conditions ; or

(ii) it has been aggravated thereby and remains so ; or

(iii) it is not connected with service.

The board should state fully the reasons in regard to each disability on which its opinion is based.

Disability

A

B

C

ATROPHIC BULBIRT (295)

Yes

Yes

Yes

(d) In the case of a disability under C, the board should state what exactly in their opinion is the cause thereof. A constitutional disease unconnected with service.

6. What is present degree of disablement as compared with a healthy person of the same age and sex? (Percentage will be expressed as Nil or as follows :-

-5%, 6-10%, 11-14%, 15-19% and thereafter in multiples of ten from 20% to 100%.)

Disability (as numbered in question-I part II)

Percentage of disablement

Probable duration of this degree of disablement

Composite assessment(all disabilities)

ATROPHIC BULBIRT

Thirty percent

Permanent

7. It was in these circumstances that the petitioner was discharged from military service. The respondents contend that in the instant case the disability of the petitioner was declared by a competent Medical Board as being neither attributable to nor aggravated by his military service. The disability was assessed at 30% permanently. It is, therefore, contended that the petitioner is not eligible for grant of disability pension in accordance with Regulations 173 of Pension Regulations for the Army Part-I (REV 1961).

8. The respondents have also raised an objection that the writ petition is filed after gross delay and that the claim of the petitioner is barred by delay and laches. It is contended that the petitioner's claim for disability pension was forwarded to the office of the PCDA(P) Allahabad on 24th March, 1969 and was rejected by the authorities vide their letter dated 3rd June, 1969. The petitioner took no steps thereafter till he submitted a petition on 1st May, 1979 after a lapse of more than ten years rejection of his claim. This claim was again rejected by the PCDA(P) Allahabad vide their letter dated 6th August, 1979 on the ground that the disability of the petitioner was neither attributable to nor aggravated by military service. The decision of the PCDA(P) Allahabad was communicated to the petitioner vide letter dated 31st August, 1979 by the respondents. The present writ petition having filed after a gap of 20 years thereafter is being objected to on the ground of delay and laches on the part of the petitioner dis-entitling him to any relief under Article 226 of the Constitution of India.

9. We have given our considered thought to the rival contentions on the part of the counsel for the parties and perused the available record. Regulation 173 relied upon by the parties reads as under:-

"173.Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 per cent or over.

The question whether a disability is attributable to or aggravated by military service shall be determined under the rules in Appendix-II."

10. The extract of Appendix II relied upon by the respondent and placed on record is hereafter:-

"DISEASES 14(b). A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service, if no note of it was made at the time of the individual's acceptance for military service. However, if medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service."

11. These regulations and the various matters regarding entitlement and award of disability pension have engaged the attention of the Supreme Court of India and this Court on several occasions. Authoritative judicial pronouncements of several Division Benches of this Court are available on all aspects urged before us. The petitioner has placed reliance on an unreported decision of the Hon'ble Supreme Court in Civil Appeal No.164/93 entitled Ex. Sepoy Mohinder Singh Vs. Union of India dated 14th January, 1993. The objection raised by the respondents and the ground for rejection of the disability pension as in the present case did not arise in the matter agitated before the Supreme Court in this case. However, he Supreme Court was of the considered view that the opinion of the Medical Board which had examined the appellant should be respected until a fresh Medical Board examines the appellant again and came to a different conclusion.

12. Similarly the decision of this Court dated 5th November, 1999 in CW 1469/98 entitled Raghunath Singh Vs. Union of India and others and the judgment reported at 104(203) DLT 5 entitled Ex. Ct. Jasbir Singh and others vs. Union of India and others relied upon by the petitioner are of no assistance to the case of the petitioner for the same reason. In both the judgments, the primacy of the views and opinion of the Medical Board as being the expert and competent body were upheld. It was further held that the medical opinion with regard to the disability is to be adhered to.

13. The primary conditions for grant of disability pension are dealt with under Regulation 173 of the Pension Regulations, 1961 of the respondents. The same regulations mandate that unless otherwise specifically provided, the disability pension may be granted to an individual who is invalidated from service on account of disability which is attributable to or aggravated by military service and is assessed at 20% or over.

14. This Court in the judgment dated 15th December, 2000 passed in CW 2053/94 entitled Ex. L/Nk Om Prakash vs. Union of India and others has held that the examination and opinion by the Medical Board cannot be termed to be an empty formality. After examination of the applicable regulations it was held as under:-

"In our view, the following position emerges on examination of the issues:-

(a)The burden will be on the claimant to establish that the injury or the disease was on account of the military service or aggravated on account of it.

(b)The onus in this regard is of a rebuttable nature

(c)The Medical Board is required to elaborately deal with the matter and record reasons as contemplated in R 7(b) to Appendix II and also to take note of various aspects highlighted in Appendix II itself.

(d)Unless the requisite formalities which are to be observed have been so done, the High Court while exercising powers under Article 226 of the Constitution can examine the matter. But the scope of judicial review in such matter is rather limited as the High Court does not act as the appellate authority. Only when the conclusions are perverse, without any materials to support it or where irrelevant materials have been taken into consideration for arriving at a conclusion, the High Court can interfere while adjudicating the petition under Article 226 of the Constitution(Mohan Amba Prasad Agnihotri & Ors. v. Bhaskar Balwant Alter(d) through LRs. 2000 (2) SCALE 186)."

15. The composition of the Medical Board is enjoined under the Regulations. It is constituted by experts in the field whose opinion cannot be doubted.

16. Our view is fortified by the pronouncement of the Supreme Court in the judgment entitled Union of India and another vs. Baljit Singh wherein the court held that the conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service but in each case when a disability pension is sought for and a claim made it must be affirmatively established, as a fact, as to whether the injury sustained was due to military service or was aggravated which contributed to invalidation for the military service.

17. All issues relating to grant of disability pension to Army personnel below the officer rank have been extensively considered by Division Bench of this Court in CW 3868/93 entitled Ex. Signalman Shri Bhagwan vs. Union of India and others decided on 15th November, 2002. It would be useful to set out the relevant portion of the conclusion arrived at by the Bench in the aforesaid judgment:-

"Generally :

(1)Disability pension is granted to an individual who is boarded out from service :

(a) On account of a disability.

(b) The disability is attributable to or aggravate by military service.

(c) The disability is assessed at 20% or above. The determination of attributability or aggravation is as per the 1961 Entitlement Rules or the 1982 Entitlement Rules as the case may be. (Regulation 173).

(6)The medical Board examining an individual for boarding him out from service is required to determine whether the disability which has necessitated the boarding out of the individual, existed before his enrollment or if it arose during military service. (Rule 2). If it existed before his enrollment,it has to be stated whether a note was made of it or not.(Rule 7(b)).

(7)The Medical Board is also required to certify if the disability which has necessitated the boarding out of an individual is attributable to military service(if it has arisen during service) or if the disability is and remains aggravated due to military service(if it existed before his enrollment).(Rule 2(a).

(8) There must be a causal connection between the disability and military service, both for it to be attributable to military service or being aggravated thereby. Otherwise, it cannot be accepted that the disability was attributable to or aggravated by military service. (rule 3 read with Jarnail Singh). All relevant evidence has to be taken into consideration by the Medical Board or deciding whether or not a disability is attributable to or aggravated by military service. An individual will, however, be entitled to the benefit of reasonable doubt.(Rule 4).

(9) The opinion of Medical Board that examines an individual will have primacy over the opinion of any other medical authority(including the opinion of a "next higher medical authority" or even the Medical Adviser (P) attached to the office of the CDA or the CCDA) unless that other medical authority has also examined the individual. (Mohinder Singh). Alternatively, the Medical Board may reconsider its opinion after a fresh examination of the individual.(Raghubir Singh). The exception to this will be in cases where the "next higher medical authority" or the Medical Adviser (P) takes a view which favors the individual.

Disease cases under the 1961 Entitlement Rules (3)If an individual suffered from a disease prior to his enrollment, and the Medical Board so determines, then it is also required to decide whether the disease could or could not have been detected at the time of enrollment.(Rule 7(b)(4) If medical opinion decides, for reasons to be stated, that the disease could not have been detected at the time of enrollment, it will be deemed not to have arisen during military service. (Rule 7(b).

18. Two later judgments have been pronounced relying on the ratio of the judgment in Shri Bhagwan's case being decision dated 15th November, 2002 in CW 3868/1993 entitled Ex. Signalman Shri Bhagwan Singh vs. Union of India and the judgment dated 6th March, 2003 in CW 5166/2000 entitled Ex. Ct. Jasbir Singh vs. Union of India & others.

19. We are bound by the authoritative judicial precedents as aforestated and have no hesitation in holding that the views of the Medical Board are binding on the respondents. In the case before us there is no challenge whatsoever to the findings or opinion of the Medical Board. On the contrary the petitioner is placing reliance on the findings of the Medical Board on the aspect of extent of the petitioner's disability being 30%.

20. While opining that the petitioner had suffered a permanent disablement of 30% on the date of the medical examination, it was specifically opined that the petitioner was suffering from a constitutional disease unconnected with the military service. Therefore, the Medical Board was of the opinion that the disease of the petitioner was neither attributable to nor aggravated by military service.

21. The findings and opinion of the Medical Board are questions of fact authoritatively decided by experts on the subject. There is no material before us to dis-believe or over-rule the findings of the Medical Board in the instant case. There is no challenge by the petitioner to the same either. In this view of the matter there is no reason for dis-believing the opinion of the Medical Board or setting aside the impugned orders. We have therefore no hesitation in holding that the disease of the petitioner was not attributable to or aggravated on account of military service.

22. As a result of the foregoing, the decision of the respondents holding that the petitioner was dis-entitled to disabled pension was wholly justified and cannot be faulted on any legal grounds.

23. In view of our finding on the first question raised before us it is not necessary to deal with the objection on the part of the respondents with regard to the delay and laches in filing the present petition.

24. We find that there is no merit in the submissions made on behalf of the petitioner. The writ petition is accordingly dismissed.

25. In the facts and circumstances of the case, however, there is no order as to costs.