Ex. Gnr. B.V. Rao, No. 14349037 vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 68 Del

JUDGMENT

Swatanter Kumar, J.

1. The petitioner was enrolled in the Army as a combatant Soldier on 5.6.1981. The petitioner was thoroughly examined and subjected to various medical and physical tests. Having found him fit in all respects he was inducted into service. The petitioner after having completed his basic military service was posted as a trained soldier with 28, Air defense Regiment. The regiment of the petitioner was placed at outstations, however, in July 1984 the petitioner started having health problems and he reported to medical authorities of the Army for treatment. The petitioner was admitted to military hospital, Jamnagar, but he could not be cured and was subsequently diagnosed as a case of 'Neurosis'. The Invalidating Medical Board determined the disability of the petitioner to be 40% and recommended that the petitioner should be invalided out from service. The Commanding Officer of the petitioner was not able to provide any alternative or sheltered appointment to the petitioner and on 18.8.1985, it has been recorded that the petitioner was discharged, having been invalided out of the service by the Medical Board. According to the petitioner, he would be entitled to receive disability pension as the disability suffered by the petitioner during service was 40% and was attributable to and/or aggravated by the military service. The Specialist has noticed that no history of childhood illness except for an attack of fit when he was 7 years old. It was also recorded that there is no family history of mental illness. In fact, it is noticed that he and one of his friend ran from home and got themselves enrolled in the Army and their families were not very happy with their joining the same.

2. The claim of the petitioner has been opposed by the respondents on the ground that though the disability claim of the petitioner was forwarded to PCDA (Pension) Allahabad, but the said Authority in consultation with Medical Advisor (Pension) attached to their Office rejected the claim as the Invaliding disability of the petition i.e. 'NEUROSIS CONVERSION REACTION' was neither attributable to nor aggravated by the service conditions. The learned Counsel appearing for the petitioner while relying upon the judgment in the case of Ex. Cfn. Sugna Ram Ranoliya v. Union of India and Ors. 132 (2006) DLT 544 (DB) argued that the disability would be deemed to be attributable to and/or aggravated by the military service.

3. No doubt the proceedings of the Invalidating Medical Board as placed on record shows the disability of the petitioner as 30% for 2 years as on 28.4.2005. The Medical Board further described the disability of the petitioner as 'Constitutional' and 'not attributable to and/or aggravated by the Military Service'. The opinion of the expert classified Specialist (Psychiatry) while referring to the history of the petitioner observed as under:

Personal History :- No history of childhood illness, except for attacks of fits twice when he was seven years old. Neurotic traits like bedwetting and nail biting till 10 yrs of age. Education Intermediate fail. Soon after that he was working with an Artist for about a year. He met one of his friend and both of them decided to join service and got enrolled in Army impulsively without the knowledge of his parents. He has been not happy in service since beginning and he tried to runaway on several occasions. Somehow managed to continue till now. Whenever he goes on leave, his parents keeps pressuring him to come out of Army and settle down in the home to lookafter them in their old age. He is not at all keen for further service. Punishment once for his AWOL with 42 days in Mil custody (for AWOL 3 months) in Jan 84. Non smoker/Non- drinker. No other habits.

Not married. No sexual problems.

4. It is evident from the above narrated pleadings that the competent authority had recommended the case of the petitioner and had forwarded the case but the PCDA did not sanction the pension. It is now a settled principle of law that the PCDA has no jurisdiction to reject the disability pension to an individual. Its authority is to prepare the payment order and implement the disbursement of the pension as granted by the Sanctioning Authority in accordance with the Rules. Reference in this regard can be made to a judgment of this Court in JC 264149 M Ex. Naib Sub Marut Sharan Tiwari v. Union of India and Ors. 2006 (7) AD (Delhi) 410.

5. As far as the basic ingredients of Regulation 173 of the Pension Regulations for the Army, 1961 are concerned, it is clear from the record that the disability was suffered by the petitioner during service and after he had put in more than 4 years of service. He had no problems in terms of his health in the first three years of his service and had performed his duties to the satisfaction of all concerned. In terms of the various judgments of this Court, 'Neurosis' is a disease which could be attributable to or at least be aggravated by the military service. In the medical opinion of the Expert it had been specifically noticed that the petitioner did not suffer from any such ailment prior to his joining the service nor was the disease hereditary. Merely describing the disease as 'Constitutional' because they are unable to pinpoint the cause of the disease, cannot be permitted to work against or to the prejudice of the petitioner. The presumption is in favor of the petitioner and no reasons have been stated in the Medical Report, so as to disentitle the petitioner from the claimed relief. The concept of 'Constitutional disease/disorder' was discussed by this Court in the case of Sh. Navin Chandra v. Union of India and Ors. 2006 (7) AD 709 after taking into consideration the opinion of different experts from the Armed Forces. The Regulations being a Welfare Law, has to be liberally construed so as to achieve its object of granting pension liberally to the members of the Force.

6. In view of the above settled position of law, we allow this petition and direct the authorities to consider and grant to the petitioner, disability pension for 30% disability. However, payment of arrears would be restricted to three years immediately preceding the filing of this writ petition. We further clarify that the respondents, if they so chose, would be at liberty to subject the petitioner to a Re-Survey Medical Board.

7. The writ petition is thus allowed in the above terms while leaving the parties to bear their own costs.