Jc 215200X Ex. Subedar Major Nafe ... vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 67 Del

JUDGMENT

Swatanter Kumar, J.

1. The petitioner, who had completed meritorious service of 32 years 144 days, was discharged from military service on completion of the term of engagement on 31st August, 2003. His name was struck off the strength of the force with effect from 1st November, 2003 in permanent low medical category with invaliding disease `NIDDM'. The petitioner on the strength of Regulation 173 of the Pension Regulations for Army, 1961 claims disability pension as the disability, which was more than 20%, has been suffered by the petitioner during the course of his employment with military. The petitioner relies upon Appendix II, which deals with Entitlement Rules for the Casualty Pensionary Awards, 1982, and particularly on Rule 4 relating to Junior Commissioned Officers and other ranks, who whenever are discharged from military service in permanent low medical category either on completion of the term or otherwise, are entitled to receive disability pension. The disease of the petitioner was attributable to or in any case aggravated by military service. The claim of the petitioner, however, was rejected vide communication dated 26th April, 2006 wherein it was stated that sanctioning authority/respondent No. 4 vide letter dated 25th March, 2004 copy of which the petitioner claims has not been given to him had declined the request of the petitioner as the disease was constitutional in nature and was neither attributable to nor aggravated by military service. Aggrieved from this, the petitioner filed an appeal before the competent authority on 19th August, 2004 i.e. within the stipulated time, praying therein for grant of disability pension. The same was not responded to, which resulted in issuance of notice by the petitioner through counsel on 1st May, 2006. The said notice was also not replied to by the respondents. It is also the case of the petitioner that medical authorities have recommended the case of the petitioner for grant of pension. However, the PCDA(P) Allahabad, which has no jurisdiction, had rejected the claim of the petitioner for grant of this benefit. Reliance was placed upon the judgment of this Court in the case of Marut Sharan Tiwari v. Union of India [WP (C) No. 23320/2005 decided on 13th July, 2006]. The order dated 26th April, 2004, which is annexed to the writ petition, has been questioned by the petitioner in this petition. Despite opportunities having been granted, no counter affidavit has been filed.

2. However, original record of the petitioner was produced in Court.

3. The petitioner had admittedly joined the military service on 10th April, 1971 and had served the rigours of service without any kind of complaint for long period of 31 years and it was only in the year 2002 when he detected to be a case of NIDDM and was put in low medical category permanently by duly constituted Medical Board. He had completed 32 years 144 days of service. The Release Medical Board had found the disability of the petitioner to be 20% initially for 2 years. The petitioner was no subjected to any Resurvey Medical Board. As per the proceedings of the Medical Board, the disease was detected in 2002 when he was admitted and the proceedings of the Medical Board have clearly recorded that the disability was not attributable to the individual's own negligence or misconduct. In reply to Column 2(c) under the head `OPINION OF THE MEDICAL BOARD', the medical authorities have recorded as under:

2(c) In respect of each disability shown as aggravated under B, the Board should state fully:

i) The Specific Condition and period in service which aggravated the disability. YES, due to Dietary compulsion vide AFMSF 15 dated 08 NOV 02.

ii) Whether the effects of such aggravation still persist. YES.

Iii) If the answer (iv) is the affirmative, whether effect of aggravation will persist for a material period. 02 Yrs.

4. In light of the above opinion of the expert body, we fail to understand as to how, PCDA(P) Allahabad could hold that disease of the petitioner was not attributable to military service. The entire medical record produced before us does not show that disease of the petitioner existed in any form prior to or even for subsequent 31 years of his service. The petitioner undertook the stress and strain of the service. The provisions of Regulation 179 are explicit and do not have any ambiguity on its plain reading. It contemplates that an individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or on attaining the age of 50 years (irrespective of their period of engagement), if found suffering from disability attributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalided out of service and shall be granted disability pension from the date of retirement, if the accepted degree of disability is 20 per cent or more and service element if the degree of disability is less than 20 per cent. In the present case, the disability of the petitioner is 20% for two years and is as a result of compulsive dietary habit. Therefore, we have no hesitation in quashing the order dated 26th April, 2004 and allowing the present writ petition. The respondents are directed to grant to the petitioner disability pension as per relevant regulations within a period of 3 months from today. The respondents would be at liberty to subject the petitioner to Resurvey Medical Board, if they so desire, in accordance with Rules.

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