Constable Kapil Dev vs Union Of India & Ors.
2008 Latest Caselaw 994 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                          WP (C) No.19178 of 2006


%                                      Date of decision: 10.07.2008


CONSTABLE KAPIL DEV                                 ...PETITIONER
                   Through:              Major K. Ramesh, Advocate.


                                   Versus


UNION OF INDIA & ORS.                               ...RESPONDENTS
                    Through:             Mr. Manoj Ohri, Advocate.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?             No

2.        To be referred to Reporter or not?              No

3.        Whether the judgment should be
          reported in the Digest?                         No

SANJAY KISHAN KAUL, J. (Oral)

1. Rule DB.

2. At the request of the learned counsel for the parties, the

petition is taken up for final disposal.

3. The petitioner was enrolled with the BSF on 11.1.1993

and was transferred to the 79th Battalion (BSF) in

Srinagar (Jammu & Kashmir) on 10.1.1994. The

petitioner was diagnosed with the problem of 'Anxiety

Neurosis with Reactive Depression' and was medically

boarded out of service on 20.12.2001.

4. The petitioner claims that with regular treatment and

psychiatric counselling his condition improved over a

period of time and in December 2006 he became fully fit.

The petitioner has prayed that he be redeployed in

service without back wages on parity with the case of

Sepoy Jawahar Singh where after a lapse of five (5) years

a person was so redeployed. In the alternative it is

prayed that in case the petitioner is still found medically

unfit in view of the disability of 60 per cent as prescribed

by the Medical Board at the stage of his discharge, he

should be paid extraordinary (disability) pension.

5. The facts of the present case show that the petitioner

was deployed with the Battalion in Jammu & Kashmir for

a period of seven (7) years, which itself is extraordinary

taking into consideration the fact that the conditions of

service are difficult in such areas. The stress and strain

of serving in an area with high degree of militancy itself

is capable of disturbing the mental balance and that is

why normally deployment in such areas is for a shorter

period of time. Another peculiar fact is that though in

1997 itself the petitioner was detected with the

beginning of such a problem he was continued to be

deployed only in Jammu & Kashmir though he was given

medical advice and treatment.

6. The opinion of the Medical Board which dealt with the

case of the petitioner before he was boarded out shows

that the petitioner had been under treatment for the said

disease of 'Anxiety Neurosis with Reactive Depression'.

The recommendation was to declare him unfit for further

service and be placed in category EEE. The percentage

of disability was assessed at 60 per cent and his disease

was held not to have been by irregular or intemperate

habit. In column No.4 of the proforma while answering

the question whether the disease was directly

attributable to condition of service it has been stated in

the negative as "No" but simultaneously column No.6

reads as under:

"6. If not directly attributable to service, was it aggravated there by and if so, by what specific conditions : Yes, due to stress & strain"

7. The aforesaid shows that there is certainly aggravation of

the medical problem due to stress and strain of service.

It is trite to say that if the disease is either attributable to

or aggravated by military service, the petitioner would be

entitled to extraordinary (disability) pension. The own

opinion of the doctors itself establishes the cause and

effect and thus, it is the stress and strain of service,

which has at least aggravated the problem. It can hardly

be said in such a case that the petitioner is not entitled to

the extraordinary (disability) pension.

8. The petitioner is held entitled to the extraordinary

(disability) pension and the arrears of the pension be

remitted to the petitioner restricted to a period of three

(3) years prior to the filing of the petition and the needful

be done within three (3) months from today.

9. The second aspect, or what is really the first relief

claimed by the petitioner is about his redeployment in

service. Learned counsel for the petitioner seeks to draw

strength from Regulation 143 of the Defence Service

Regulations, 1987, which reads as under:

"143. Re-enrolment of Ex-Servicemen Medically Boarded Out. - (a) Ex-Servicemen, who are in receipt of disability pension, will not be accepted for re-enrolment in the Army.

(b) Ex-Servicemen, medically boarded out without any disability pension or those whose disability pensions have been stopped because of their disability having been re-assessed below 20% by the Re-Survey Boards, will be eligible for re-enrolment, either in combatant or non-combatant (enrolled) capacity in the Army, provided they are re-medically boarded and declared fit by the medical authorities. If such an ex- serviceman applies for re-enrolment and claims that he is entirely free from the disability for which he was invalided, he will be medically examined by the Rtg MO and if he considers him fit, the applicant will be advised to apply to officer-in-charge, Records Office concerned, through the recruiting officer for getting himself re- medically boarded. The officer-in-charge, Records Office concerned, on receipt of the application, will arrange for his medical examination at a Military Hospital nearest to his place of residence. The individual concerned will have to pay all his expenses, including that on accommodation and journey to and from the place of medical examination.

If the individual is found fit and re-enrolled on regular engagement, he will be enlisted for the full period of combined colour and reserve service, subject to the following conditions:-

(i) If he had not previously completed the minimum period of colour service after which he could be transferred to the reserve, he will rejoin the colours and his previous colour service will count towards the minimum service required for transfer to the reserve.

(ii) If he had previously completed the minimum period of colour service required for transfer to the reserve and is fully trained and suitable in all other respects, he may be re-enrolled, provided a vacancy in the reserve exists, and be immediately transferred to the reserve."

10. It is no doubt true that the aforesaid Regulations are in

respect of the Army and would not ipso facto apply to the

BSF. It is for this reason that the illustration given by the

petitioner on Sepoy Jawahar Singh would not imply that

the petitioner has to be treated at parity in the absence

of such regulation. It is, of course, true that Sepoy

Jawahar Singh was also a case of psychiatric illness which

was cured and though he was invalidated out of service

on 22.6.1997 he was redeployed on 9.11.2002. The

question, however, begs consideration as it is in the

fitness of things that when the Army, which is the main

defence force, can have such Regulation should the BSF

also not examine the feasibility of having norms and

regulations for such redeployment.

11. We consider it appropriate to direct the BSF to examine

the adoption of such norms and regulations and take a

decision in this behalf within a period of three (3) months

from today. The object is obvious that persons who are

trained and who may be temporarily incapacitated but

subsequently recovered can have their services usefully

deployed by the Army/paramilitary forces.

12. We also consider it appropriate to direct that the

feasibility of such redeployment of the petitioner be

examined by the competent authority subject to the

petitioner being found medically fit by the Board to be

constituted by the BSF. The necessary action in this

behalf be taken within a period of six (6) months from

today.

13. The writ petition is allowed in the aforesaid terms leaving

the parties to bear their own costs.

14. Dasti.

SANJAY KISHAN KAUL, J.

JULY 10, 2008                              MOOL CHAND GARG, J.
b'nesh