Ex. Pnr. Hoshiar Singh vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 2058 Del

JUDGMENT

Swatanter Kumar, J.

1. The petitioner was enrolled as a Combatant Soldier in the Indian Army on 9th November, 1977. At the time of his entry and even subsequent thereto, he was subjected to strict medical and physical standards of the Force and was always found fit. At no point of time, any adverse entry was recorded in his service record. After completing his basic military training, he was posted to a field unit. He served in different places - in field as well as in peace areas. However, the petitioner started having some health problems and was brought before the Medical Board. The Medical Board found the petitioner ailing from the disease called 'Tonic Colic Epilepsy' for which he was treated but could not be cured. The petitioner then was subjected to an Invaliding Medical Board where it was recommended that the petitioner be invalided out of service and his disability was stated to be 20 per cent in low medical category 'EEE'. Resultantly, the petitioner was discharged from service on 29th June, 1981.

2. Having been released from the Army, the petitioner's claim for disability pension, which was submitted to the CDA (P), Allahabad was also declined on the ground that the disease from which the petitioner was suffering and was invalided out of service was neither attributable to nor aggravated by military service. This was informed by the respondents vide their letter dated 31st July, 1981. The petitioner being dissatisfied with the said Order preferred an appeal on 12th January, 1982 to the Appellate Committee. His appeal was also rejected by the Ministry of defense vide their letter dated 6th February, 1984. The petitioner waited for a while and again preferred second appeal which met the same fate resulting in the filing of the present Writ Petition.

3. According to the petitioner, the disease suffered by the petitioner was attributable to and aggravated by military service and his disability being more than 20 per cent, he satisfied all ingredients of disability pension and as such, was entitled to grant of disability pension. The petitioner further claims that he has been writing various letters to the Army Authorities praying for grant of the said benefit but of no consequence. Some of these letters dated 16th December 1985, 15th June 1985, 11th November, 1986, 21st August, 1987, 11th January, 1988 etc., have been mentioned by the petitioner, as contained in paragraph 11 of the writ petition.

4. The respondents filed a detailed counter-affidavit completely disputing the claim of the petitioner, however, there is no controversy with regard to the facts of the case. They have also disputed the receipt of the letters stated to have been written by the petitioner to various Authorities of the respondents. According to the respondents, the petitioner was found by the Medical Board suffering from 'Adult Onset Generalized Tonic Colic Epilepsy ( 345)' under Item No. III (iii) of the table annexed to Rule 13 of Army Rule, 1954 and his disability, of course, was assessed at 20 per cent for two years. The claim of the petitioner submitted to the PCDA (P), Allahabad on 8.5.1981 was rejected and even the appeal preferred by the petitioner was rejected by the concerned Authorities including the defense Minister Appellate Committee on the ground that the disease of the petitioner was neither aggravated by nor attributable to military service. With that disease, he was hospitalized and treated right from 2nd November, 1980 onwards at different times for different periods and at different hospitals. After prolonged treatment, the petitioner could not recover and then was subjected to Invaliding Medical Board which invalided the petitioner from military service.

5. Along with the counter-affidavit, the respondents have also filed the proceedings of the Invaliding Medical Board. As per the proceedings dated 30.3.1981, the petitioner had three years of service when he was subjected to Invaliding Medical Board. In the history it has been noticed that since November, 1980 the petitioner was having episodes of seizures. His seizures were seen by the specialist as well as the Medical experts and it was noticed that the description of the seizures suggests a 'Generalized Tonic Colic Epilepsy'. Though the family history was negative still the Medical Board in its opinion came to the conclusion that the disease was neither attributable to nor aggravated by military service. The Medical Board also held that the investigations failed to reveal any symptomatic cause and points towards an Ideopathic Reteology. The petitioner was examined by a Specialist. The Medical Board opinion has recorded that the disability was constitutional in its origin and was not connected with service. Though the disability of the petitioner was stated to be 20 per cent for 2 years, it was specifically said that the same is neither attributable to nor aggravated by military service.

6. Reference to attendant circumstances may be useful to say that the petitioner had joined the service in November, 1977 and in the beginning of the year 1980, he started having attacks, i.e., immediately after his training concluded. The petitioner at the relevant time chose not to question the correctness of the Medical Board. Out of the total service of 3 years, 7 months and 22 days, the petitioner remained sick nearly more than a year. In these circumstances, it is difficult for any Court to conclude that the medical opinion given is not reasonable. In fact, in terms of the decision of the Supreme Court in the case of Controller of defense Accounts (Pension) and Ors. v. S. Balachandran Nair , it was stated that such report has to be given precedence and is normally to be accepted by the Court. Reference can also be made to a recent judgment of this Court in the case of Ex. Spr. Bhim Singh v. UoI and Ors. WP(C) No. 21671/2005, decided on 31st August, 2006, wherein the court held as under:

38. The learned Counsel appearing for different petitioners in these writ petitions have relied upon judgments of this Court in the cases of Ex.Ct.Jasbir Singh and Ors. v. Union of India and Ors. , Deepak Kumar Singh v. Union of India ,and Satpal Singh v. Union of India 1999 IV AD (Del.) 321. In addition to the above mentioned judgments, they have also relied upon the judgment of this Court in the case of Ex.Cfn.Sugna Ram Ranoliya v. Union of India and Ors. being CWP No. 3699/2004 decided on 27.7.06 , in support of their contention that all such diseases like Schizophrenia, mental disorder or Generalized Seizure would be attributable and/or aggravated by military service. They would, according to them, be entitled to receive disability pension in law. There is no doubt that in these judgments, various such diseases have been held to be attributable to and/or aggravated by military service but they have not been held as a proposition of law. It relates to the cases which have been referred to in those judgments. In those cases, there was no definite opinion of the Invaliding Medical Board or that of the Classified and/or Specialists to substantiate the plea of the respondents that the disease is neither attributable to nor aggravated by military service. The principles enunciated by the Benches in those judgments are to be applied to the facts of each case. Unless the material (opinion of the Medical Board) produced before the Court is ex facie unbelievable, absurd and is not in accordance with rules, regulations and instructions issued by the department, would have precedence. In the present cases, the medical experts have clearly indicated the diseases of the petitioners relatable to a period much prior to their joining the Army though it surfaced with gravity after their joining the Army. A person who was suffering from Generalized Seizure at the age of 10 or 12 years and had joined the Army and the disease manifested with greater gravity within few months or initial years of service, the Court cannot be expected to hold that such disease was attributable to or aggravated by military service particularly when the Medical Board in specific terms have recorded their findings against such attributability or aggravation. In the case of Controller of defense Accounts (Pension) and Ors. v. S. Balachandran Nair reported as the Supreme Court has held that precedence has to be given to the findings recorded by the Medical Board. In the present cases, the findings of the Medical Board are in conformity with the rules, regulations and guidelines meant for medical officers as the patients have been subjected to examination by a Specialist or a Classified Specialist prior to their being examined by the Medical Board. Due investigations have been conducted and the history given by the petitioners themselves relate such diseases much prior to a period of their joining the Indian Army.

7. Besides referring to the above principles, the court has also to keep in mind that the petitioner was invalided from service on the basis of an opinion of the medical board, correctness of which he never questioned. Furthermore, the burden lies upon the petitioner to show that the medical board proceedings were in violation of the rules, regulations or were otherwise perverse. No medical evidence whatsoever has been placed on record by the petitioner which could even remotely suggest that the findings recorded by the specialist are contrary to the actual state of health of the petitioner. According to the opinion of the medical board, it was a constitutional disorder and it pointed towards an Idiopathic Reteology. The petitioner has certainly failed to discharge the onus placed upon him and this Court cannot sit as an appellate authority over the opinion of the medical board. Keeping in view the short duration of service of the petitioner, it is also difficult for the court to give him advantage of the relevant Regulations that normally a disease would be attributable to military service. Stage of his sickness is another factor which the court would be compelled to construe against the petitioner as he could not be so severely sick within such a short duration without any specific aggravation by conditions of service.

8. The present report is not perverse and is based upon investigation and after due examination by the specialists who have concluded that the disease of the petitioner was neither attributable to nor aggravated by military service. The petitioner cannot take undue advantage of Regulation 383 of the Regulation for Medical Service and for that matter even Regulation 423 stating that when the petitioner was subjected to Medical Board at the time of entry into service, he was found as not suffering from any disease and that will vest an indefeasible right in the petitioner to say that the disease was attributable to military service. It is a matter of common knowledge that such a disease may not be detected at that instance when the petitioner is given entry into service. But the petitioner started ailing within a very short period which does not suggest that the disease could be attributable to Service or conditions of Service. There is no averment even in the Writ Petition that the petitioner prior to his joining Service never suffered from this disease and the onset of the disease was not prior to any point of time of his joining Army and has manifested during the course of service.

9. In view of the above discussion, this Writ Petition is dismissed while leaving the parties to bear their own costs.