Ex. Hav. Harduwari Lal vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1483 Del

JUDGMENT

Swatanter Kumar, J.

1. The petitioner was enrolled as a member of the army in the year 1972 and was promoted to the rank of Havaldar. After serving the army for more than 22 years, the petitioner was invalided out of service with effect from 1.7.1994. The Medical Board described his disease as HIGH HYPERMETROPIA WITH AMBLYOPIA. The case of the petitioner was recommended by the sanctioning authority. According to the petitioner, the petitioner was entitled to grant of disability pension because the disease was contracted to him during his long service and the same was attributable to and aggravated by military service. However, vide letter dated 5th August, 1995, Annexure P-3 to the writ petition, the claim of the petitioner for grant of disability pension was rejected by CCDA(P) Allahabad by saying that the same is not attributable to the military service. Aggrieved by this order, the petitioner preferred an appeal to the Ministry of defense, which was also rejected and a communication thereof was sent to the petitioner vide letter dated 27th February, 1997, which reads as under:

To

Ex. Hav. Hardwari Lal Yadav

Vill. Raipur, P.O. Nangal,

the. : Bawal, Distt. : Rewari,

Haryana.

Subject:- Appeal against rejection of disability pension in respect of Ex.Hav.H.L. Yadav (No. 13923827) of AMC.

Sir,

I am directed to refer to your appeal dated 25.8.95 on the above subject and to inform you that the same has been carefully considered by the First Appeal Committee.

2. You were released from service on account of Invaliding disease High Hypermetropia with Amblyopia.

3.The disability on account of which you were released from service is a constitutional disorder. On perusal of your service/medical documents, the Appellate Medical Authority has found that the onset of IE was in July, 91 in peace area. There was no field service in close time relationship to onset of ID. There was no delay in disgnosis and treatment. There is no history of injury to eyes or redness of eyes. There is no evidence of any service aggravating factor.

4. It is, therefore, regretted that your request cannot be acceded to.

Yours faithfully,

Sd/-

(Dhuri Singh)

for Under Secretary to the Government of India.

2. From a bare reading of above, it is clear that claim of the petitioner was rejected on the ground that disability of the petitioner though admittedly 40% was not attributable to or aggravated by army service. Aggrieved by this, the petitioner has approached this Court by filing the present writ petition. The respondent has filed the counter affidavit wherein it has been stated that the petitioner had joined the army on 29th January, 1971 and he was invalided out of service on 1st July, 1994 on account of High Hyper Metropia with Amblyopia. It is the stand of the respondents that mere manifestation of a disability during military service does not make a person eligible for disability pension unless the conditions laid down in para 173 of the Pension Regulations for the Army 1961 Part-I are fulfillled. According to the respondents, the orders passed by CCDA (P) Allahabad as well as the appellate authority are in accordance with law and keeping in view the judgment of this Court in case of Ex-Signalman Shri Bhagwan v. Union of India and Ors. wherein it was held that the opinion of the Medical Board has to have precedence, the writ petition should be dismissed.

3. The respondents have placed on record the proceedings of the Invaliding Medical Board as Annexure R-1. It has been recorded therein that disability of the petitioner was 40% initially for a period of 2 years. Even composite disability of the petitioner was stated to be 40%. He was advised to use glasses for distance and near. Of course while indicating that the disability was not attributable to or aggravated by military service, it was stated that the disability is a constitutional disorder.

4. In the medical report itself, in unambiguous terms, it has been stated that this 41 years old NCO has noticed gradual pain less progressive dimness of vision in both eyes for past 3 years. In other words, onset of the disease was stated to be 3 years prior to examination of the petitioner by the Medical Board, which was held on 11th April, 1994. In other words, the petitioner had developed this problem of weak vision only in the year 1991 while the petitioner was admittedly in army service since 1971. In this long 20 years' of service, the petitioner had been posted at different places including the places of high altitude and had stood to rigours of conditions of service. It is admitted before us that he was subjected to strict medical examination, particularly his eye sight at the time of his entry into military service as well as on periodical medical check up. In this long period nothing was noticed to say that the petitioner had the disease or any symptom of said disease. We have already said in various judgments that the respondents' understanding of the expression 'constitutional disorder' is where the concerned persons are not able to say the cause and time of onset of the disease. Once the Medical Board has not expressed specific opinion or is unable to express such opinion, it will be unfair to subject the petitioner, who has put in number of years of service, adverse consequences thereof. A Division Bench of this Court while deciding similar matters i.e. Navin Chandra v. Union of India and Ors. WP(C) No. 5720/2006 decided on 27th July,2006 had the occasion to discuss the expressions `Constitutional' and `Constitutional Disorder'. The Court held as under:

15. In furtherance to direction of the Court, medical specialists have appeared during the course of hearing of these petitions. In response to querry by the Court, the medical specialists have expressed their opinion that 'Constitutional disorder' or 'Constitutional disease' would relate to a situation where the Medical Board is unable to find a cause for the disease which a person is suffering from. In those circumstances, it is recorded that the disease is neither attributable nor aggravated by army service. In other words, if the medical authorities failed to determine cause, onset or arrive at a definite diagonistic opinion in relation to disease of a member of the force, it is bound to adversely affect the interest of the member in relation to grant of disability pension. According to these experts, the constitutional disorder would normally result in recording of remark 'not attributable to nor aggravated by military service' without any further or proper diagnosis. Butterworths Medical Dictionary defines 'Constitutional' as:-Relating to the state of constitution, inherent in the Constitution of mind or body, relating to the bodily system as a whole. The expression Constitutional Disorder or disease would thus have to be understood even in its common parlance as something which is relatable to human mind and/or body. Its existence in either of them could be specifically diagnosed both in relation to cause, time of its existence as well as onset of the disease. This can hardly be termed as just and fair approach in consonance with rules and regulations. The diseases like Schizophrenia, Neurosis and other Psychiatric related diseases can be aggravated if not attributable to Army service. If they are constitutional diseases or disorders, then they must be relatable to human body and/or mind and can be detected by proper diagnose including the time i.e pre or post joining the Army. It would be required of the authorities concerned to reasonably show on record that such diseases or their basic symptoms existed prior, though the disease manifested later or even co- relate the onset of the diseases to a period prior to the joining of service by the petitioner. It is reasonably expected that the medical experts would be able to even trace the cause, origin of the disease as was done in the case of JC 264149M Ex. Naib Sub Marut Sharan Tiwari v. Union of India and Ors. being CWP NO. 23320/2005 decided on 13.7.06

5. Learned Counsel appearing for the petitioner has rightly relied upon the judgment in the case of Ex. Constable Jasbir Singh the Ors. v. Union of India and Ors. in support of his contentions. The present case is one where the person was found to be suffering from the above disease after having rendered flawless service without any physical inability for a long period of 20 years. For taking advantage of the judgment of the Supreme Court in the case of Controller of defense Accounts (Pension) and Ors. v. S. Balachandran Nair the medical report has to be totally in conformity with the Rules and defense regulations meant for medical examination.

6. The efforts of the petitioner to get benefit, which was due to him in law, have failed to yield any result. In fact in terms of the earlier judgment of this Court in the case of Ex. Constable Jasbir Singh (supra), the Court had directed grant of relief and issued certain directions to the respondents. The respondents were expected to pass proper orders and not to dispose of the appeal of the petitioner in a mechanical manner.

7. For the reasons aforestated, we would quash the decision dated 6th July, 1995, which was communicated to the petitioner vide letter dated 5th August, 1995 and communications dated 27th February, 1997 and 24th January, 2005 rejecting the first and second appeal of the petitioner against rejection of disability pension and would direct the respondents to consider the case of the petitioner for grant of disability pension in accordance with law. The appropriate action should be taken within 3 months from the date of pronouncement of this judgment.

8. The petition is accordingly disposed of, while leaving the parties to bear their own costs.