Ex-Sub. Maj. Balbir Singh And Ors. vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 1476 Del

JUDGMENT

Mukundakam Sharma, J.

1. The facts and issues arising for consideration in these writ petitions being similar, we are disposing of all these writ petitions by this common judgment.

2. In all these writ petitions the principal prayer is for issuance of directions to the respondents to pay disability pension to all the petitioners. All the petitioners herein were invalidated out of service on medical grounds.

3. According to the petitioners, when the petitioners were enrolled in service they had undergone a detailed medical check up and examination. In the said detailed and extensive medical check up the petitioners were found medically fit and they were thereafter enrolled in the military service. During the course of their service they had suffered a diseases for the reason of which they have been declared to be medically unfit to be retained in military service and, therefore, the natural presumption and conclusion is that the petitioners suffered from the disability which is attributable to and aggravated by military service. It was submitted that the petitioners in their service career had to go through stress and strain connected with the service; that the nature of duties was difficult and they also had to render their services in difficult terrains and areas and that the said factors were primarily responsible for the diseases or aggravation thereof resulting in the invalidating diseases Therefore, the petitioners should be considered to be suffering from disability which is attributable to or aggravated by military service.

4. According to the respondents, the diseases for which the petitioners have been boarded out were neither attributable nor aggravated by military service. Counsel appearing for the respondents have submitted that all the petitioners herein were boarded but on the basis of the reports of the Invaliding Medical Board which found that the diseases from which the petitioners have been found suffering are responsible for their disabilities but the disabilities are not attributable to or aggravated by military service. Therefore, the petitioners are not entitled to the benefit of grant of disability pension. In the light of the aforesaid submissions we have considered the records and the various decisions to which our attention was drawn during the course of the arguments by the counsel appearing for the parties.

5. Criteria and the conditions for grant of disability pension, so far army personnel are concerned, have been dealt with under Rule 173 of the Pension Regulations which provides as follows:-

"(a) Individual should have been invalided out of Army on account of disability, (b) Disability must have been attributable to or aggravated by military service, and (c) Disability should have been assessed at 20% or more."

6. The question of attributability or aggravation is determined under Appendix-II of Pension Regulations. In 1982, a set of rules called `Entitlement Rules for Casualty Pensionary Awards 1982' were brought into force and after promulgation of the said rules the question of attributability would have to be decided and determined in accordance with the provisions of the said Rules. A guideline is also framed which lays down the mode and manner as also the guiding principles for determining such cases have been set out. The aforesaid Entitlement Rules have been made effective w.e.f. January 1, 1982, and the aforesaid set of rules is required to be read in conjunction with the Guide to Medical Officers (Military Pensions) 1980. It is provided in the aforesaid Entitlement Rules read with the guidelines that invalidation from service is a necessary pre-condition for grant of disability pension. In paragraph 5 thereof a presumption is to be drawn for determining the question of entitlement to such disability pension when it provides as follows:-

"5. The approach to the question of entitlement to casualty pensionary awards and evaluation of disabilities shall be on the following presumptions:-

Prior to and during service (a) A member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance.

(b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due to service."

Paragraph 6, on the other hand, provides that disablement or death shall be accepted as due to military service provided it is certified by appropriate medical authority that (a) the disablement is due to a wound, injury or disease which is attributable to military service, or existed before or arose during military service and has been and remains aggravated thereby, or (b) the death of the personnel was due to or hastened by a wound, injury or disease which was attributable to military service, or the aggravation by military service of a wound, injury or disease which existed before or arose during military service. Paragraph 8 provides that attributability/ aggravation would be considered if causal connection between death/disablement and military service is certified by an appropriate medical authority. Paragraph 11 deals with cases where an individual in receipt of disability pension dies at home. This paragraph provides as under:-

''11. In cases where an individual in receipt of a disability pension dies at home and it cannot from a strictly medial point of view, be definitely established that the death was due to the disablement in respect of which the disability pension was granted:-

(a) the benefit of doubt in determining attributability should go to the family of the deceased, if death occurred within 10 years from the date of his invalidment from service unless there are other factors adversely affecting them claim and

(b) if death takes place more than 10 years after the date of man's invalidment from service, the benefit of doubt will go to the State."

Paragraph 12 on the other hand provides the conditions which would be considered as on duty in the following manner:-

"12. A person subject to the disciplinary code of the Armed Forces is on duty :-

(a) when performing an official task or a task, failure to which would constitute an offence friable under the disciplinary code applicable to him.

(b) when moving from one place of duty to another place of duty irrespective of the mode of movement.

(c) during the period of participation in recreation and other unit activities organized or permitted by Service Authorities and during the period of traveling in a body or singly by a prescribed or organized route.''

6. All the aforesaid provisions including that of the guidelines called the Guide to Medical Officers (Military Pensions) 1980 and also the source of power, i.e., the provision of section 173 of the Pension Regulations including other relevant provisions Thereof came to be considered by the Supreme Court and this court in various decisions. A conjoint reading of the aforesaid provisions along with the decisions rendered by this Court makes it amply clear that the said provisions and the decisions lay down the entire procedure , guidelines and principles as to under what circumstances a person could be said to be medially unfit and disabled and is to be boarded out from service and its attributability. The decisions have also dealt with the manner and circumstances under which the said person would be entitled to receive the disability pension.

7. When an individual is found suffering from any disease or has sustained injury, he is examined by the medical experts who would not only examine him but also ascertain the nature of disease/injury and also record a decision as to whether the said personnel is to be placed in a medical category which is lower than `AYE' (fit category) and whether temporarily or permanently. They also give a medical assessment and advice as to whether the individual is to be brought before the release/invaliding medical board. The said release/invaliding medical board generally consists of three doctors and they, keeping in view the clinical profile, the date and place of onset of invaliding disease/disability and service conditions, draws a conclusion as to whather the disease/injury has a causal connection with military service or not. On the basis of the same they recommend (a) attributability, or (b) aggravation, or (c) whether connected with service. The second aspect which is also examined is the extant to which the functional capacity of the individual is impaired. The same is adjudged and an assessment is made of the percentage of the disability suffered by the said personnel which is recorded so that the case of the personnel could be considered for grant of disability element of pension. Another aspect which is taken notice of at this stage is the duration for which the disability is likely to continue. The same is assessed/recommended in view of the disease being capable of being improved. All the aforesaid aspects are recorded and recommended in the form AFMSF-16. The Invaliding Medical Board forms its opinion/recommendation on the basis of the medical report, injury report, court of enquiry proceedings, if any, charter of duties relating to peace or field area and of course, the physical examination of the individual.

8. During the course of their submissions, counsel appearing for the respondents also raised a preliminary objection regarding the maintainability of some of these writ petitions on the ground of inordinate delay and laches. It was submitted that there is unexplained delay of long years in approaching this court by some of the petitioners and, therefore, those petitions are liable to be dismissed on the ground of inordinate delay and laches. In support of the said contention, counsel appearing for the respondents relied upon the ratio of the decision of the Division Bench of this Court in Hans Ram v. Union of India, reported in 1995 (34) DRJ (DB). In paragraph 5 of the said judgment the Division Bench observed on the question of delay and laches in the following manner:-

"5. It is true that ordinarily in matters relating to pension the writ courts do not deny the relief on account of delay merely. A sympathetic and liberal view is always taken. Indulgence is invariably shown. In the case of Bachan Kaur v. Union of India (WP 621/89) decided on 13.4.85, a Division Bench of this Court has taken the view that a writ petition claiming pension, if the claim be otherwise just and legal, may be entertained and allowed limiting the same to a period of three years before the date of filing of the petition. In the present case, the petitioner has on account of culpable delay and laches extending over a period of 25 years himself created a situation which disentitles him to any relief. The service record of the petioioner is not available. It is not known as to why and in what circumstances the petitioner was paid merely the gratuity and yet felt satisfied therewith though no pension was allowed. If only the petitioner would have approached the Court within a reasonable time, the respondents could have been directed to search and produce the relevant service record of the petitioner enabling a just decision of the petitioner's claim, which is not possible in the present case. The entire fault is of the petitoner. Howsoever sympathetic we may be with the petitioner, sitting as a writ court, we cannot grant relief of pension to the petitioner merely as a charity or bounty in the absence of relevant facts being determinable and relevant documents available."

9. The aforesaid issue was also dealt with in the subsequent decisions, particularly in the decision of Ex-Signalman Shri Bhagwan v. Union of India and others reported at 103 (2003) Delhi Law Times 269 (DB). In the aforesaid decision it was laid downy the Division Bench of this Court in the following manner:-

"208. Having heard submissions on the facts of many such cases, we are of the view that as a thumb rule it may be appropriate if the law of limitation as it applies to civil suits is applied in such situations. Therefore, claims for grant of disability pension may be entertained despite a great delay, but the delayed claim should not be granted for a period exceeding three years prior to the date of filing the writ petition unless the individual has been diligently pursuing the matter with the respondents or has made a representation which has not been disposed of by the learned Single Judges. This will, of course, depend on the facts of each case and no binding rule can be laid down in this regard."

10. We respectfully agree with the ratio laid down by this court in the aforesaid decisions. Ordinarily in matters relating to pension the writ court do not deny relief on account of delay merely if it is found that the claim made is otherwise just, legal and bonafide. In that event, a liberal and sympathetic view is to be taken. In two decisions, namely, in the decision of Shri Bhagwan (supra) and Bachan Kaur v. Union of India (W.P. 621/89) decided on April 13, 1985, the Division Benches of this Court have taken a view that the writ petition claiming pension, if the claim is otherwise just and legal, may be entertained and allowed limiting the same to a period of three years before the date of filing of the writ petition. However, if on account of culpable delay and laches on the part of a petitioner extending over a period of 25 years, a situation is created whereby the service record of the petitioner is not available, or is lost, or is destroyed, the same may disentitle the petitioner from getting any relief. Due to laches and negligence of the petitioner a situation is created under which the service records stand destroyed or lost and consequently there is no scope of knowing as to how the petitioner suffered the disease and how far his service was responsible for causing the said disease. In such event it would also not be known as to why and in what circumstances the petitioner was paid merely the gratuity and yet felt satisfied therewith though no pension was allowed. Unless the petitioner approaches the court within a reasonable time, the respondents could destroy the records and in that event there is no possibility of issuing any direction to search and produce the relevant service record of the petitioner enabling a just decision of the petitioner's claim. In such a case the fault is entirely that of the petitioner and due to the aforesaid fault the service records are lost and/or destroyed which makes it impossible for the court to decide effectively as to whether or not isability suffered by the petitioner was attributable to or aggravated by military service or not. We also agree with the observations made in the decision of Hans Ram (supra) to the effect that ''howsoever sympathetic we may be with the petitioner, setting as a writ court, we cannot grant relief of pension to the petitioner merely as a charity or bounty in the absence of relevant facts being determinable and relevant documents available.''

11. But where such records are available and the question raised is determinable, in that event it would be the responsibility of the court to decide the dispute and the claim in order to ascertain whether the claim is just and legal and bonafide. It is found that such claim is bonafide and just and legal, the same would be allowed limiting the same to a period of three years from the date of filing of the petition.

12. The aforesaid view taken by this Court also finds favor with us. We respectfully agree with the decisions of this Court in that regard in Bachan Kaur (supra) and Shri Bhagwan (supra) and hold that in writ petitions raising delayed claims of disability pension, delayed claim shall not be granted for a period exceeding three years prior to the date of filing of the writ petition. The only exception to this shall be the case of an individual who has been diligently following his/her matter with the respondents or has made representations to the respondents which have not been dealt with or disposed of. Here the respondents would have been put to notice and cannot be permitted to defeat legitimate claims by their non-action.

13. The principle issues which arise for consideration in these petitions are more or less the same as advanced in the earlier cases which were decided by this Court. In Shri Bhagwan's case (supra), the Division Bench dealt with some of the issues raised in these proceedings also in depth and thereafter held as follows:-

"104. Rule 17 is a new provision and, if faithfully implemented, it would have reduced much litigation. The rule as it was originally promulgated in 1982 has since been completely amended by a corrigendum dated 21st June, 1996 issued by the Ministry of defense, Government of India. This corrigendum is effective from the date of promulgation of the 1982 Entitlement Rules and reads as follows:-

"Medical Opinion and Competent Medical Authorities

17(a) For the purpose of these rules, the following authorities shall be the Appropriate/Competent Medical Authorities for giving medical opinion on the aspects of assessment of disability and acceptance of death/disablement due to causes attributable to / aggravated by military service:

(i) In respect of initial claims of Commissioned officers. Medical Advisor (Pension)/Jt.Dir.AFMS(Pension) in the Office of the Dir.General, Armed Forces Medical Services (DGAFMS)

(ii) In respect of initial claims of personnel below Officer rank Medical Advisor (Pension/Jt.Dir.) AFMS (Pension) attached to the Office of Chief CDA (Pensions).

(iii) At the First Appeal stage Dy.DGAFMS (Pension) in the office of DGAFMS

(iv) At the Second Appeal stage Dir.General Armed Forces Medical Services (DGAFMS)

(b) At the time of invalidment / release of a service personnel medical views on attributability / aggravation and degree of disability shall be given by the Invaliding Medical Board (IMB) Release Medical Board (RMB). The findings of the IMB/RMB/RSMB which are recommendatory in nature shall be reviewed by the Competent Medical Authority at the time of consideration of initial claim / appeal for grant of disability pension. The Competent Medical Authority may for reasons to be recorded in writing, after or modify the recommendations of IMB / RMB /RSMB/ Lower Medical Authorities

(c)The competent Medical Authorities after review of the IMB/RMB/RSMB proceedings/ findings of the lowr Medical Authorities, study of related medical / service documents, the clinical profile recorded and keeping in mind the aetiology and nature of disease, shall evaluate the role played by service factors in the onset/ progress of the disability. The recommendations of the Competent Medical Authority as accepted by the Pension Sanctioning Authorities i.e, Chief CDA (Pension) / Ministry of defense shall be final with regard to the entitlement and assessment of disability for the purpose of grant of disability pension.''

105. Rule 18 deals with a pre-disposition or inherent constitutional tendency, which is not a disease, but if there is a precipitating or causative factor in service which produces the disease then it would be attributable to service notwithstanding the inherent disposition.

106. Rule 18 reads as follows:

''18. Predisposition- ''Predisposition'' of inherent constitutional tendency'' in itself is not a disease. And if there is a precipitating or causative factor in service which produces the disease, then it is attributable to service, notwithstanding the inherent disposition".

109. Rule 22 is a rather lengthy rule relating to assessment of the degree of disability. However, what is of importance is the first part of Rule 22, which provides as follows:

"Assessment of degree of disability is entirely a matter of medical judgment and is the responsibility of medical authorities."

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110. As already mentioned hereinabove, Rules 23 to 25 deal with appeals against the rejection of a disability claim. These are completely new provisions and their promulgation was necessary, but was apparently not brought to the notice of any Court, a  yet.

 

  111. These Rules provide as under:

"23. Right of Appeal- Where entitlement is denied by the Pension Sanctioning Authority on initial consideration of the claim, the claimant has a right of appeal against decision on entitlement and assessment. Whereas for decisions on entitlement all concerned authorities have to give opinions, assessment of degree of disablement is entitely a matter of medical judgment and is the responsibility of appropriate medical authority.

24. Detailed procedure to be followed for appeals shall be issued by Ministry of defense from time to time. However, to avoid inordinate delay in taking final decisions on the disability / family pensionary claims suitable time limits at each stages of the claim shall be laid down.

25(a) defense Minister's Appellate Committee on Pensions - DMAGP shall deal with second or the final appeal on claim for casualty pensionary awards. This Committee consists of:-

Chairman RM / RRM Members URM Chiefs of Staff (Army, Navy and Air Force) defense Secretary Financial Adviser (DS) DGAFMS JAG (Three services)

(b) Appellate Committee for First Appeals

ACFA shall deal with claims for casualty pensionary awards on first appeals. This Committee consists of:

Chairman DS(Pensions), Ministry of defense dealing with pension cases. Members Director Personal Services, Army HQ and his counterparts in Naval and Air HQ dealing with pension cases. Deputy Director General (Pensions) of Office of DGAFMS, Deputy Financial Adviser (Pensions).

193. It was submitted before us by learned Counsel for the petitioners that the pension sanctioning authority is the Commanding Officer of the individual concerned and not the CDA or the CCDA. This does not seem to be correct in view of Regulation 21 of Part II of the Pension Regulations read with Table V thereof which clearly specifies that the CDA is the authority to sanction the grant of pension. In any event, this issue is not of vital importance so far as the decision of these cases is concerned in view of the decision of the Supreme Court in Mohinder Singh.

"199. xxx xxx xxx

Generally:

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

(a) On account of disability.

(b) The disability is attributable to or aggravated 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).

(2) Before invaliding an individual from service, an effort should first be made to adjust him against a sheltered appointment. If it is not possible to adjust him against a sheltered appointment only then can he be boarded out from service (Regulation 13-A).

(3) Disability pension may be granted for life if the disability is incapable of improvement. Otherwise, it may be granted for a lesser period. (Regulation 185).

(4)The quantum of disability pension may increase or decrease depending upon the increase or decrease of the disability (Regulation 187 and 188).

(5)When an individual is being recruited, he apparently goes through a medical examination. In the medical examination:

(a) he may be found suffering from a disability which disentitles him from being recruited , in which event he may not be recruited;

(b) he may be found suffering from a disability which does not disentitle him from being recruited and he is then recruited. In such a case, note must be made of the disability in the documents of enrolment;

(c) he may be found not suffering from any disability.

(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 enrolment or if it arose during military service. {Rule2}. If it existed before his enrolment, 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 enrolment) {Rule 2(a)}.

(8)There must be a causal connection between the disability and military service, 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 the decision in Jarnail Singh's case}. All relevant evidence has to be taken into consideration by the Medical Board for 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.

(10) The decisions contained in the letter dated 7th February, 2001 and subsequent clarifications are administrative in character. The respondents, for their own decision making process, will be bound by him. The contents of the letter dated 7th February, 2001, however, do not and cannot, alter the basic law laid down by the Supreme Court in Mohinder Singh giving primacy to the opinion of the authority that physically examines an individual.

(11) In the event an individual disputes the correctness of the opinion of the Medical Board, the burden will be on him to establish, as a fact, that the disability was attributable to or aggravated by military service. {Baljit Singh, K.K.Jose and Om Prakash)"

14. This Court in the case of Md. Tanwir Alam v. Union of India and others reported at 2002 VIII AD (DELHI) 496 has also dealt with the provisions of Entitlement Rules to the Pension Regulations and the various army orders. In paragraph 12 of the said judgment the Division Bench has laid down in the following manner:-

"12. It may be true that Rule 7(b) of Appendix (II) (Entitlement Rules) raises a presumption to the effect that in the event no note of it has been made at the time of his acceptance of military service, the same had arisen during such service. According to the respondents, however, Schizophrenia is not one of such diseases of which any note could be made at the time of his entry into service. Presumption so raised is a rebuttable one. In the aforementioned backdrop, we may consider the decision cited at the bar."

In paragraph 15, it was held by this Court after considering the provisions of Rule 173 and the provisions of the Entitlement Rules that the condition precedent for getting the disability pension pension must, therefore, have a direct nexus that the disease or disability is directly attributable to or aggravated by the military service. The question as to whether the attributability and/or aggravation is strictly relatable to the military service or not must be considered in terms of the provisions of entitlement Rules for Casualty Awards, 1982. It was also held that in terms of Rule 8 of the said Rules, attributability and/or aggravation shall be conceded, if casual connection between death and/or disablement and military service is certified by the appropriate medical authority, and after referring to the provisions of the Entitlement Rules and in the facts of the said case it was held by the Division Bench that the appropriate medical authority considered the petitioner's case and came to the conclusion that the disease of Schizophrenia from which the petitioner suffered was not related to his military service. A remedy by way of appeal is also provided for as laid down in Rule 23 of the Entitlement Rules.

The Division Bench thereafter referred to the decision in Union of India and another v. Baljit Singh, Civil Appeal No. 13272 of 1996 arising out of SLP(C) No. 9366 of 1996 decided on October 11, 1996, wherein it was held as follows:-

" He further contends that asper the medical report the injury was sustained by him while he was in service and that, therefore, it has been presumed that it was during service and accordingly must be attributable to military service. On a consideration of the rules, we think that the contention of Shri Malhotra merits acceptance. It is seen that various criteria have been prescribed in the guidelines under the Rules as to when the disease or injury is attributable to the military service. It is see that under Rule 13 disability pension would be computed only when disability has occurred due to a wound, injury or disease, which is attributable to military service or existed before or arose during the military service and has been and remains aggravated during the military service. If these conditions are satisfied, necessarily the incumbent is entitled to the disability pension. This is made amply clear from clauses (a) to (d) of paragraph 7, which contemplates that in respect of a disease the rules enumerated there under require to be observed. Cl. (c) provides that if a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed the onset of the disease and that the conditions were due to the circumstances of duty in military service. Unless these conditions are satisfied, it cannot be said that the sustenance of injury per se is on account of military service. In view of the report of the Medical Board of Doctors, it is not due to military service. The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service. In each case, when a disability pension is sought for and made a claim, 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. Accordingly, we are of the view that the High Court was not totally correct in reaching that conclusion. However, having regard to the facts and circumstances of this case, we do not think that it is an appropriate case for interference."

15. There is yet another decision of this Court rendered in the case of Ex. Captain Randhir Singh Gurra v. Union of India and others, being CWP No.2420/1994 decided on 11th July, 1997 wherein the Pension Regulations for Air Force, particularly the provisions of para 153 and Rule 7 of the Entitlement Rules, came up for consideration. There was also a presumption which could be drawn under the said Entitlement Rules as that of the Entitlement Rules applicable to the army personnel. In the said decision reference was also made to the case of Ex. Sapper Mohinder Singh v. Union of India, (Civil Appeal No. 164 of 1993, decided on January 14, 1993 by the Supreme Court) which laid down the law that assessment of disability pension at a particular rate by the medical board must be respected by the Chief Controller of defense Accounts (Pension) until a fresh medical board examines an individual again and comes to a different conclusion.

16. All the aforesaid decisions were noticed in the decision of this Court in Shri Bhagwan's case (supra) and after careful consideration of the same it had laid down the principles derived from the provisions of the Pension Regulations and the Entitlement Rules read with the Guide to Medical Officers (Military Pensions) the various circulars of the Government and the authorities and also the ratio of the various decisions.

17. The learned Bench also considered the parameters of judicial review in matters involving the opinion of the experts in the field and upheld that the opinion of the medical experts is final and binding and judicial intervention holding to the contrary would not be permissible. The Bench had disagreed with the decision of a learned Single Judge, overruling medical opinion, and held as under:

"187. A learned Single Judge of this Court set aside the view of the Medical Board because it had not given any reason why the ailment was not attributable to military service. It was said that the word ''constitutional'' is general in nature and that the description of the disease as ''constitutional'' by the Medical Board is not final. The learned Single Judge set aside the decision of the CCDA, which agreed with the Medical Board."

188. We are of the view that this decision requires to be overruled. When the Medical Board had given a categorical opinion that the petitioner's ailment was constitutional and even the CCDA had opined that the petitioner was not suffering from any ailment which could be attributed to or aggravated by military service and that it did not exist before or during military service, the learned Single Judge could not have set aside the concurring opinions merely because it was felt that the word ''constitutional'' is not an adequate reason for denying disability pension. The learned Single Judge clearly fell in error in substituting his views for that of the IMB as well as the CCDA.

18. We also fully agree with the view consistently taken by this Court that the opinion of the Invaliding Medical Board consisting of three doctors would have primacy over the opinion given by any other medical authority (including the opinion of next higher medical authority or even Medical Adviser attached to the office of CDA or CCDA) unless that authority has the medical expertise as the Board and examined the individual.

19. No appeal was preferred from the decision rendered in Sri Bhagwan's case and, therefore, the said decision has become final and binding. We are also in respectful agreement with the conclusions reached and mentioned therein. The respondents are required to comply with and meticulously follow the principles and conclusions laid down by this court while deciding a case of disability pension. The Review Medical Board, before whom a case of disability is brought, must assess and determine and given their opinions and decisions being aware of the observations and directions given in the said judgment in Shri Bhagwan's case (supra).

20. Following the decisions rendered by the Apex Court in Baljit Singh's case (supra) and this court in the case of Md.Tanwar Alam and Sri Bhagwan, we also hold that unless the conditions set out in Rule 173 read with clauses (a) to (d) of paragraph 7 are satisfied, it cannot be said that the sustenance of injury per se is on account of military service, particularly when there is a report of the doctors of the invalidating Medical Board that it is not attributable to or aggravated by the military service. The opinion given by the doctors of the Medical Board shall be given due weightage and primacy in the matter for ascertaining as to whether or not the injury sustained was due to or was aggravated by the military service which contributed to invalidation from the military service.

21. Before parting with the case, we are constrained to observe that the respondents have shown utter apathy to follow the law laid down by the Apex Court and this court as also in complying with the several directions given to them. We find that the court is inundated with petitions making claims of disability pension despite authoritative pronouncements only on account of the failure of the authorities to follow the law or the prescribed procedure. The learned Bench in Shri Bhagwan's case (supra) had observed thus:-

''77. During the earlier part of the hearing of these cases, no one brought the 1982 Entitlement Rules to our notice. Later, we chanced upon them in a recently published book. When this was mentioned to learned Counsel for the respondents, we were handed over the 1982 Entitlement Rules, along with the amendments, corrigenda etc. Incidentally, these amendments, corrigenda etc. find no mention in the book we chanced upon. We are mentioning this only to highlight the fact that the failure of the respondents to make available relevant decisions taken by them about the grant of disability pension helps no one. On the contrary, it only adds to the confusion, as has happened in this batch of cases. Disabled Army personnel have had to approach the Courts spend energy and money to agitate for their disability pension. The respondents have also had to spend huge amounts of money in defending such cases. The Courts have been bogged down with avoidable litigation. And all this, without anyone knowing thelatest rules and regulations or whether the 1961 Entitlement Rules or the 1982 Entitlement Rules are applicable to him. We are of the view that the respondents lack of transparency on so minor a matter is solely to be blamed for this colossal waste or everybody's time and energy.

78. We may point out that it was the frequency and unending stream of disability pension cases that compelled us to take up this batch of cases and settle some outstanding issues once and for all. Hopefully, our efforts will go some distance in making the respondents realize and appreciate their duties and responsibilities to disabled personnel.

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112. Rule 27 lays down the functions and responsibilities of various authorities such as the Services Headquarters, the Judge Advocate General and the Medical Authorities. Responsibility is fixed on each of these authorities and we hope and expect that while deciding the claims for disability pension, these three authorities will co-ordinate with each other to arrive at a correct decision.

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126. Learned counsel cited a large number of cases before us. The list appears to be inexhaustible. This is a pity because it suggests that despite the legal position having been explained more than a dozen times by various Courts, the respondents continue to act contrary to the law. This is a disease that should be immediately treated by the concerned authorities so that they may continue to be governed by the rule of law.

xxxx xxxx xxxx

194. Even otherwise, learned counsel directed their ire at the "arbitrary" decisions taken by the CDA or the CCDA from time to time while denying disability pension. Their grievance was that despite categorical statements of the law, the CDA or the CCD continues to ignore it, compelling disabled persons to approach the Courts for justice. They submit that the respondents are doing nothing to rein in the CDA or the CCDA.

195. We are of the opinion that learned counsel for the petitioners are fully justified in being agitated in this regard. Despite the law having been laid down by the Supreme Court and followed in several decisions by various High Courts, our analysis of the decisions given above unmistakably suggests that the CDA or the CCDA continues to act as it pleases. It must be clearly understood by the law implementing authorities that when the law is declared by the Supreme Court, it is of universal application and is not confined to the facts of a particular case only. Therefore, when the Supreme Court declares the law, as for example in Mohinder Singh, it does so in respect of all such cases, and not only in the case of the individual. Consequently, then the CDA or the CCDA deals with a case, it has to keep in mind the decision of the Supreme Court and apply the legal principles laid down therein to all similar cases. The large number of cases that we have considered above seen to indicate is that the CDA or the CCDA believes (erroneously) that the law has to be laid down or repeated in each and every case; or, it adopts an "I don't care " sort of attitude. If it is the latter, then the attitude of the CDA or the CCDA suggests that if its decision is wrong or contrary to a decision of a court, then some Court of competent jurisdiction will correct it. This is neither the right approach to have not is it a legally acceptable course of action. The sooner it is correct, the better it is fore all armed forces personnel, serving or retired, otherwise they may one day find themselves the victims of the vagaries of the CDA or the CCDA.

196. In this context, we may only recall what was said by a learned Single Judge of this Court in similar circumstances in cases pertaining to disability pension in Ex.LNK Gordhan v.Union of India and Ors., CW No.2010/2000, decided on 19th October 2001. It was said:

"A copy of this judgment should be placed before the Chief of Army Staff as well as the Chief of the Air Staff for their perusal since the policy adopted by the CDA / CCDA is not only deleterious and demoralizing for the Armed Forces but is contrary to repeated pronouncements of different High Courts as well as the Hon'ble Supreme Court"

The numbers of cases still pending adjudication is a reflection of the manner in which the authorities have conducted themselves despite the aforestated observations.

22. In sub-para (4) of paragraph 214 of the judgment in Sri Bhagwan's case (supra) it was specifically held and provided as follows:-

"One of the grievances made before us was that a claimant is not given all the relevant material to enable him to file an effective appeal. We, therefore, direct that on a demand being made by a claimant for any specific particulars regarding his medical condition, the same should be supplied to him (unless there is a violation of medical ethics or the information is confidential under the applicable medical rules) to enable him to make an effective appeal for grant of disability pension. The material should be supplied to the claimant within a period of sixty days from the date of receipt of the request."

23. Unless and until such records and reports are received by the concerned person he is unable to file an effective appeal before the competent authority although he/she may be aggrieved by the opinion of the Medical Board. Thus, the remedy of appeal provided to him under the law becomes meaningless to the said personnel. It is in this context that this Court had observed that as and when an aggrieved personnel seeks the records, the same should be provided so as to enable the said aggrieved person to take recourse to the appropriate remedy provided for under the Rules.

24. In the present case, all the petitioners have stated that they had asked for those records but they were not provided with the records of the Medical Board. At one stage of hearing of the present petitions, a stand was taken by the respondents that the documents are confidential in nature as set out in the document itself which records the opinion and the recommendation of the Medical Board. We are, however, unable to consider the said records as confidential. The records pertain to the individual and he/she has a right to know his/her medical status.

25. Keeping in view the conduct of the respondents as is evident from the several cases before us, we direct the respondents to furnish to the individual the records relating to his examination, opinion on his condition of the Medical Board and the Revie Medical Boards (as the case may be) unless there is violation of medical ethics or the information is confidential under the applicable rules, without waiting for a request from the individual immediately after such Board is held.

26. Unless and until the petitioner is made aware of the nature of disease that he is suffering from and the percentage of his disability and also the reasons on the basis of which the Medical Board has come to an opinion that it is neither connected or attributable to nor aggravated by the military service, he cannot file an effective appeal enabling him to exhaust his statutory remedy provided for under the statute. In order to make the provision effective and meaningful, he must be allowed to files a comprehensive appeal which could be filed only when he is given all the documents.

27. Such appeal when filed is also required to be disposed of expeditiously in accordance with law by passing a speaking order so that an aggrieved person is made aware of the reasons which weighed with the authority in arriving at its decision. Furthermore, in case litigation is initiated, the court would be able to ascertain the views of the appellate authority before deciding as to whether or not the petitioner is entitled to any relief.

28. We find that aged and disabled personnel or their illiterate and poor dependants are being made to run from pillar to post as the respondents fail to discharge their legal duties. We direct the registry to forthwith send a copy of this judgment to the Chief of the Army Staff, PCDA, the Judge Advocate General and the respondents who shall circulate it to all concerned medical authorities and pension establishments. Failure to abide by the law shall be severally dealt with.

29. Having held and concluded thus, we are of the considered opinion that since in the instant cases a plea is raised, which goes unrebutted, that the records of the Medical Board were not furnished to the petitioners so as to enable them to file an effective and meaningful appeals, we allow these writ petitions to the aforesaid extent directing the respondents to furnish to the petitioners the relevant documents connected with the medical examination(s) conducted by the Invalidating Medical Board and/or the Review Medical Board(s).

The documents shall be furnished within three weeks from today on receipt of which the petitioners may file their appeals before the appropriate authority within another three weeks thereafter. In the event of filing such appeals, the same shall be considered in accordance with law and shall be disposed of by speaking and reasoned orders within three months from the date of receipt of such appeals. On disposal of the said appeals, if any of the petitioners are still aggrieved, it shall be open to the said petitioners to approach this Court on the fresh cause of action.

30. In terms of the aforesaid order, these writ petitions stand disposed of.