Ex. Sep. Mahavir Prasad vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1498 Del

JUDGMENT

Swatanter Kumar, J.

1. The petitioner was recruited and enrolled in the army by the Army Recruiting Centre on 23.10.1984. He was subjected to recruiting medical check up. He was not suffering from any disease or infirmity at the time of his enrollment in the Army as a Sepoy. He was put to rigorous physical training and was examined at some intervals by the medical authorities. Because of the stress and strain and hard conditions, the petitioner became the patient of 'Neurosis' which was aggravated while in service. On 18.11.1988, the petitioner was subjected to medical board which recommended and observed that the petitioner be put to medical category 'BEE(T)' for 6/12 years. However, he was again subjected to a fresh medical board vide which the petitioner was placed in low medical category 'BEE (Psychological)(Permanent)'. He was invalided out of army service on the medical grounds on 1.1.1991. The disability of the petitioner was accepted as more than 20% and was also attributable to military service. The authorities forwarded the case of the petitioner for grant of disability pension to the competent authority i.e. CDPA(P) Allahabad but the same was rejected by that authority without proper application of mind and in an arbitrary manner. The petitioner was informed vide letter dated 31.1.1993 that his claim for disability pension has been rejected by the CCDA(P), Allahabad. The petitioner, aggrieved from the said action of the respondents, first submitted a notice-cum- appeal which was rejected by the respondents vide letter dated 11.12.1998. Whereafter, he made a representation to the higher authorities on 31.1.2004 which was also rejected by the respondents vide order dated 2.4.2004, thus, resulting in filing of the present petition.

2. The petitioner while relying upon Regulation 173 of the Pension Regulations, para 423 of the defense Regulation for the AF (Pension) and Rule 7(b) of the appendix II (Entitlement Rules) contended that the disability of the petitioner was attributable to and/or, in any case, was aggravated by military service, as such the petitioner was entitled to the grant of disability pension.

3. In terms of the counter affidavit filed on behalf of the respondents, it is stated that the disability claim of the petitioner was rejected and the same was communicated to the petitioner vide letter dated 31.1.1993. Other facts are not in dispute. The basic case of the respondents is that the petitioner was discharged from Army because of 'Neurosis (Psycho-Sexual Inadequacy)' with low medical category 'BEE (Permanent)' and various benefits and dues were given to the petitioner at the time of his release from army. The disability was stated to be 20% for two years by the medical board and in view of the view taken by the CDPA(P) Allahabad, the disability was not attributable to military service, as such the petitioner was not entitled to get the said relief.

4. It is clear from the record that the CDPA(P) Allahabad as well as the appellate authority had rejected the claim of the petitioner for grant of disability pension primarily on the ground that it was not attributable to or aggravated by military service. According to the respondents, there was not even casual connection between the disablement and military service so as to concede attributability or aggravation. The military records have been produced in court. No doubt the petitioner had put in at the time of his release more than seven years of service, however, his disease was diagnosed in the year 1988 itself. The averment of the petitioner that the medical board had assessed 20% disability attributable to military service is without any basis. In fact, it is not supported by the findings recorded by the medical board. The petitioner was also examined by a classified specialist (Psychiatry) and he had made observations in his report which would hardly show any attributability to military service and the said specialist had recommended that the petitioner be placed before the invaliding medical board. As per the opinion of the specialist, the petitioner had no aptitude for further service. The medical board while stating the disability to be 20% for two years, specifically noticed as under:

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

Disease is of constitutional nature unrelated to service.

5. In view of the unambiguous medical opinion, there is no occasion for the court to take a view different than the one taken by the medical experts. Furthermore, it may be noticed that the petitioner never applied for an appellate medical board despite the fact that even his appeal was rejected in the year 1998 and he has approached the court in the year 2005. The findings recorded by the medical board in terms of the judgment of the Supreme Court in the case of Controller of defense Accounts (Pension) and Ors. v. S. Balachandran Nair AIR 2005 SC 4391 are to be accepted unless they were contrary to the Rules, Regulations and were ex facie perverse. In the present case, the opinion of the medical board does not fall in that category and, thus, we do not find any merit in this writ petition besides the fact that it also suffers from the defect of delay and latches.

6. For the reasons afore-stated, the writ petition is dismissed while leaving the parties to bear their own costs.