Si Suresh Kumar (Retd.) vs Uoi And Ors
2013 Latest Caselaw 2947 Del

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     12
     * IN THE HIGH COURT OF DELHI AT NEW DELHI

                     +      W.P.(C) No.797/2011

     %                          Date of decision: 12th July, 2013

      SI SURESH KUMAR (RETD.)               ..... Petitioner
                   Through : Ms. Rekha Palli,
                              Mr. Punam Singh and
                              Ms. Amrita Prakash, Advs.
                   versus

      UOI AND ORS                                 ..... Respondents
                         Through :    Mr. Ankur Chhibber and
                                      Ms. Aakriti Jain, Advs.
      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MS. JUSTICE DEEPA SHARMA

GITA MITTAL, J. (Oral)

1. The instant writ petition has been filed by the petitioner seeking award of disability pension in accordance with the CCS (Extraordinary Pension), Rules as well as the amount payable to him from the due date on account of his invalidation from service and on account of his having suffered 90% disability. It is further contended that as per the Office Memorandum dated 10 th December, 2010 issued by the Ministry of Personnel (Personal Grievance and Pension), this disability has to be reckoned as 100%.

WP(C) No.797/2011 page 1 of 31

2. The factual narration giving rise to the instant writ petition so far as the service record of the petitioner is concerned is not disputed and is briefly noticed hereinafter.

3. The petitioner was enrolled in the Central Industrial Security Force (CISF) on 7th November, 1986 as a Head Constable under the Sports quota. It is undisputed that the petitioner was a wrestler. Even after his enrolment, he successfully participated in several events and won laurels for the CISF. In view thereof, the petitioner was given accelerated promotions, firstly, to the rank of Assistant Sub-Inspector (ASI) on 1st June, 1989 and thereafter to the post of Sub-Inspector/Exe. (SI/Exe.) on the 23rd of September, 1993, both admittedly under the sports quota. It is an admitted position that the petitioner participated in the 17th All India CISF Wrestling/Judo Competition held at CISF Unit Bhopal and won a gold medal as well as a cash reward.

4. We now enter the area of dispute. The petitioner claims that he suffered a major fall while participating in the Bhopal games on account of which he started suffering from cervical spondylosis with brachalgia as well as restriction in his neck movements and he also started suffering from numbness of shoulder, hands and neck. Yet the petitioner continued to serve the CISF with dedication while on treatment from different doctors.

5. It is at this stage, on account of medical difficulties being faced by him, the petitioner claims to have been granted commuted leave between 20th December, 1996 to 31st December, 1996 on the

WP(C) No.797/2011 page 2 of 31 basis of the medical certificate which he submitted to the respondent. In this regard, the petitioner has placed before us the extract of his service book which clearly contains endorsement to this effect under the signature of the petitioner‟s Assistant Commandant. The respondents do not dispute this position.

6. The petitioner has submitted that he remained asymptomatic for a few years. However, on account of his injuries, he was unable to participate in any sport events after December, 1996. This non-participation of the petitioner is confirmed by the respondents.

7. On the 27th of March, 2004, the petitioner was examined in the CISF Hospital, Saket New Delhi where he was given treatment. On the OPD card, the doctor had noted that the petitioner‟s history as "injury back of neck during wrestling in the past old days." The medical treatment taken by the petitioner from the CISF Hospital reflects that he was being treated for such injuries and the problem had arisen as a result thereof.

8. Before us, the petitioner has placed reliance on medical examination conducted by the Medical Board held on 24th July, 2006 at the Northern Health Care Centre (NHCC), Saket, New Delhi. The Board was conducted by three specialists of the CISF. The relevant extract of the medical board proceedings conducted on 24th July, 2006 reads as follows:-

WP(C) No.797/2011                                     page 3 of 31
                 "Central Industrial Security Force
                   Medical Board Proceedings
      (1) to (11). xxx           xxx           xxx
      (12) Principal disabilities    CERVICAL
                                     SPONDYLOSIS WITH
                                     BRACHALGIA
      (13) Other disabilities        NIL
      (14) to (17). xxx             xxx         xxx

(18). Opinion of the Board : This 40 years old SI of CISF in an old case of Cervical Spondylosis with Brachalgia treatment at various hospitals since 2004. He was symptomatic much before 2004. Presently under treatment of Jeewan Hospital, New Delhi. He attended this hospital on 15.7.2006 and obtaining medicines accordingly, Kumar admitted of this hospital from 6.7.2006 to 10.7.2006. Presently complains of pain both shoulders, neck back and whole of the glad. Sometimes using cervical follow: O/E G.E. fair, TPs normal, TIS-NAD. J/E NAD. Being symptomatic he requires regular follow up by the specialist and certain employment restrictions. In view of above he is recommended to be placed (19) xxx xxx xxx (20) Is it strictly attributable to No condition of Service?

      (21) If not directly attributes to    Aggravated due
           service, was it Aggravated       to stress and
           thereby, if so by what           strain of service
           specific condition.              condition"




WP(C) No.797/2011                                      page 4 of 31

9. The Board recorded regular follow-up and timely review by the Service Medical Board (SMB). These findings of the board proceedings were duly approved by the Director (Medical) on the 5th of September, 2006. In its recommendations, the Medical Board opined that the petitioner was not fit for arms drill; PT & Parade; quarter guard duty; patrolling; climate below 00c; any restriction in duties involving vision/hearing and that he was fit only for sedentary duties.

10. It is also noteworthy that there is a categorical opinion that the petitioner‟s disability stood aggravated on account of stress and strain of the service condition.

11. So far as the petitioner‟s injuries are concerned, the same are also noted by the Pt. Deendayal Upadhyaya Institute for the Physically Handicapped where the petitioner had undergone treatment on the 20th June, 2008. The doctor has noted that the petitioner was suffering from "neurologic - U/E, head and Tx- region after impact neck injury during wrestling 20-22 years back."

12. In view of the above findings of the Medical Board, the petitioner was placed in low medical category with effect from 2006. The petitioner‟s batch mates as well as his juniors were promoted on the 19th of March, 2009. However, the petitioner was denied promotion because of his low medical category.

WP(C) No.797/2011 page 5 of 31

13. In these circumstances, the petitioner made an application dated 10th April, 2009 to the Director General of the CISF wherein he specifically stated that after his participation in the games at Bhopal in December, 1996 where he had won gold medal, he got severe injuries on his neck and shoulders and his career as a sports person had come to an unfortunate end.

14. In this representation, we find that the petitioner has mentioned that because of the injury, he had taken earned leave between 1st January, 1997 to 30th January, 1997 and taken treatment for the same at Delhi which treatment had continued from 31st January, 1997 to 10th April, 1997 for 70 days after expiry of the leave. The petitioner has categorically stated that it was on account of the injuries which he had suffered in December, 1996, that he was unable to participate in any sporting event thereafter.

15. It is undisputed that the sporting career of the petitioner ended in December, 1996. It is also not disputed before us that the petitioner had taken medical leave from 20th December, 1996 to 31st December, 1996. The respondents have however, disputed the reasons and circumstances in which the petitioner had taken leave from 1st January, 1997 to 30th January, 1997 as well as the reasons for his absence thereafter till 10th April, 1997.

16. It is submitted before us by the respondents that the petitioner had undertaken leave with effect from 1 st January, 1997 on the ground that his mother had expired. It is further claimed by the respondents that the petitioner therefore filed an application for

WP(C) No.797/2011 page 6 of 31 extension of leave for one month from 31st January, 1997 on the ground that during his leave period from 1st January, 1997, he had started constructing his house which had not been completed till 31st January, 1997 and therefore, compelled him to seek extension of one month leave. The respondents however also state that after joining, the petitioner made an undated representation stating that he had fallen sick with effect from 29th January, 1997 due to high fever/viral and had undertaken treatment and taken rest with effect from 29th January, 1997 to 9th April, 1997. It is therefore urged by Mr. Ankur Chhibber, learned counsel representing the respondents that there is no evidence that the petitioner was being treated on account of the injuries which he had suffered in the games and his leave is unrelated to the same.

17. The petitioner disputes making such applications. He also insists that irrespective of the stated reasons in the leave application, it was because of the problems relating to his injuries that he had taken leave. It is further submitted that after he joined back, the respondents took up the issue of regularization of 72 days leave availed by the petitioner. It is also contended that the documents submitted established that the petitioner was suffering from physical disability on account of the injuries and considering the same, the entire period of 72 days of absence of the petitioner was regularized by the CISF while sanctioning the same against leave due and admissible to the petitioner.

WP(C) No.797/2011 page 7 of 31

18. This court has noted these submissions in the proceedings recorded on 2nd May, 2011 and also the petitioner‟s submission that all supporting and relevant documents stood supplied to the Commandant of the petitioner‟s Unit and that the same would be available with the respondents. In view thereof, by the order dated 2nd May, 2011, the court had directed the respondents to produce the "relevant record in which decision was taken to regularize the 72 days leave which petitioner had overstayed after 30 days earned leave was sanctioned to him in the month of either December, 1996 or early January, 1997."

19. On the 20th of July, 2011, the next date of hearing, the respondents had informed the court that the relevant record had been weeded out inasmuch as it pertained to events of the year 1996. The court accordingly adjudicated on the issue as to whether the petitioner suffered a fall when he was representing CISF at the All India Police Games. Placing reliance on the petitioner‟s statement with regard to medical treatment and fault of the respondents for not preserving the medical record of the petitioner, the court held that the respondents had breached the duty of reasonable care. Inasmuch as he had been certified to be 90% disabled, the writ was disposed of with a direction to the respondents to sanction disability pension to the petitioner; compute arrears and make payment thereof.

WP(C) No.797/2011 page 8 of 31

20. The respondents thereafter filed a review petition being R.P. No.510/2011 on the plea that the respondents had laid their hands on the personal file of the petitioner which contained evidence recorded at an inquiry held pertaining to petitioner over-staying leave by 72 days and in respect of which inquiry proceedings, referring to various documents exhibited therein. It was urged that as against the pleaded reason in the writ petition with regard to the reasons for the petitioner‟s overstay leave, leave was regularized, not against any medical infirmity proved. It was urged that the reasons given by the petitioner to overstay leave was firstly his requirement to be present in the village to oversee repair of the house and secondly he having contacted viral fever i.e. a medical problem not relatable to any injury.

21. In the judgment dated 27th of July, 2012 on R.P.No.510/2012, this court had noted that the respondents had been given opportunity to file counter affidavit and produce the relevant record but they failed to do so. Even in the review petition, respondent no.3 relied only on an application purportedly made by the petitioner but had not produced relevant record with regard to regularization of leave by them. However, expressing an opinion that the matter required proper pleadings, consideration and hearing afresh, this court therefore allowed the Review Petition No.510/2011 recalling the judgment dated 20th July, 2011. The respondents were also permitted to file additional counter affidavit which has been brought on record before us.

WP(C) No.797/2011 page 9 of 31

22. While allowing the review petition on 11th November, 2011, this court had conditionally directed the respondents to pay an amount of Rs.50.000/- to the petitioner. This amount was paid by the respondents on 3rd February, 2012.

23. During the course of hearing on 21st November, 2012, our attention had been drawn to the aforenoticed representation dated 10th April, 2009 filed by the petitioner with the respondents. We had also directed the respondents to produce the record relating to the manner in which the petitioner‟s representation was dealt with and the order passed thereon. The respondents were also directed to place before us the record relating to the participation of the petitioner, if any, in any sporting event after 10 th December, 1996 before us.

24. The record relating to the processing of the application dated 10th April, 2009 placed by the respondents before us encloses a copy of the medical board proceedings conducted by the respondents on 25th July, 2009. The relevant extract thereof reads as follows:-

"an established case of Cervical Spondylosis with Brachalgia which is done due to follow on ground. It is since 1996 Dec. at present patient Diminished vision, restriction of neck movements, numbness of shoulder, hands and neck; pain in the chest, back and neck etc. as well cyanosis at fingers"

25. After noticing above, the medical board however submitted that the disability was not contracted in service; was not attributable to conditions of service and was not aggravated by

WP(C) No.797/2011 page 10 of 31 service. However, so far as retention in employment was concerned, the board recommended that the petitioner was unfit for further service.

26. In view of this representation, the respondents issued a show cause notice dated 9th February, 2010 informing the petitioner that the competent authority proposed to retire him from service. The petitioner‟s representation to the same was rejected by the respondents by their order dated 5th April, 2010 and he was retired on medical grounds.

27. The petitioner‟s representation dated 2nd May, 2010 and 30th July, 2010 for grant of disability pension received no reply. By a pension payment order dated 1st November, 2010, though the pension was issued however, no disability pension was sanctioned to the petitioner.

28. In these circumstances, the petitioner has been compelled to file the instant writ petition seeking the following relief:-

"(A) Issue a Writ of Certiorari quashing the findings of the Medical Board dated 25.7.2009 in so far as it has given a finding that petitioner‟s disability is neither contracted in service nor it is attributable or aggravated by service;

(B) Issue a Writ of Mandamus directing the Respondents to grant Disability Pension to the Petitioner as per CCS (Extraordinary Pension) Rules due to his invalidation from service on account of 90% disability; and

WP(C) No.797/2011 page 11 of 31 (C) Pass any other appropriate order/direction which this Hon‟ble Court deem fit and proper."

29. The above record would show that the petitioner was of low medical category. No medical records relating to the petitioner‟s medical examination after 1996 are available with the respondents. Only the medical board proceedings dated 24 th July, 2006 is available with the respondents.

30. The medical board proceedings dated 24th July, 2006 refer to the petitioner as a "old case of cervical spondylosis with brachalgia treatment at various hospitals since 2004". The Board proceedings also state that the petitioner was symptomatic and required regular follow up.

31. The respondents are unable to produce the service and medical records relating to the petitioner.

32. It cannot be disputed that given the nature of the petitioner‟s sickness, medical condition and the fact that he has been thereafter placed in low medical category, and discharged from the service on medical grounds, the respondents ought to have preserved the medical records of the petitioner. Furthermore, the respondents also have no knowledge of entitlement of persons who have suffered disability under the Extraordinary Pension Rules and that the disability pension has to be sanctioned even if the injury during service or is attributable to or aggravated by the service. Certainly, we find substance in the petitioner‟s contention that the respondents were negligent in not preserving the record of the

WP(C) No.797/2011 page 12 of 31 petitioner.

33. So far as case of the petitioner is concerned, the negligence is also apparent from the endorsement made by the doctors in the medical board proceedings on the 25th of July, 2009. The Medical Board had noted that the petitioner was suffering from cervical spondylosis with brachalgia on account of fall since 1996 and at the time of medical examination in 2009, he was suffering from diminished vision, restriction of neck movements, numbness of shoulder, hands and neck; pain in the chest, back and neck etc. as well cyanosis at fingers.

34. At this stage, we may advert to the statutory provisions of Central Civil Services (Extraordinary Pension) Rules which guides disability pension which reads as follows:-

"3. For the purpose of these rules unless there is anything repugnant in the subject or context-

(1) to 8 xxx xxx xxx

3-A.(1) (a) Disablement shall be accepted as due to Government service, provided that it is certified that it is due to wound, injury or disease which -

(i) Is attributable to Government service, or

(ii) Existed before or arose during Government service and has been and remains aggravated thereby."

35. Learned counsel for the petitioner has pressed that the petitioner had suffered disability on account of discharge of official duties as he was officially required to participate in the games in

WP(C) No.797/2011 page 13 of 31 December, 1996. An alternative argument has been laid that even if the injury was held to be not attributable to the games, certainly, his disability has got aggravated on account of performance of his duties with the CISF.

36. The respondents have produced such record as is available with them before us. A few circumstances which have been brought out of the record placed before us deserve to be set out before proceeding to examine the same.

37. As noted above, the petitioner was sanctioned 11 days commuted leave between 20th December, 1996 till 30th December, 1996 on account of ill health. This was back to back with the Bhopal Games and is a circumstance which supports the petitioner‟s contention that he had suffered some injuries during his participation in the games at Bhopal.

38. The leave from 1st January, 1997 and his overstaying thereof by 72 days was in continuation of this period of commuted leave. The respondents have urged that by way of his first application, the petitioner had sought grant of leave for the reason that his mother had expired.

We may note that no such leave application has been placed on record and only a leave certificate issued by the respondent which contains the petitioner‟s signature has been placed before us.

39. The petitioner on the other hand has placed before this court a copy of a death certificate with regard to death of Late Smt. Chalti Devi, the mother of the petitioner, on the 13 th of November,

WP(C) No.797/2011 page 14 of 31 1987. It is urged by Ms. Rekha Palli, learned counsel appearing for the petitioner that this unfortunate event occurred after the petitioner had joined service with the respondents. Learned counsel contends that the petitioner would have taken leave to attend her funeral rites and related ceremonies. Ms. Palli, learned counsel appearing for the petitioner submits that the records have deliberately not been produced by the respondents as they would have reflected the demise of the petitioner‟s mother as well as his having taken leave in 1987 for this reason.

40. The respondents have also filed with their counter affidavit an application purporting to have been made by the petitioner. This application is not in the handwriting of the petitioner. The reasons given in the application for leave between 1st January, 1997 to 30th January, 1997 is not demise of his mother but for the reason that the petitioner was constructing his house. Thus the circumstances alleged to have been given by the petitioner to the respondents are contradictory.

41. We have to take notice of yet another fact. Personnel serving with the CISF would be required to undergo yearly medical examinations. Fitness is a sine qua non for discharge of functions in the para military forces. This position is not disputed by Mr. Ankur Chhibber, learned counsel appearing for the respondents. Unfortunately, the respondents have not produced record of any annual medical examination which would show that the petitioner was in a fit medical condition after December, 1996.

WP(C) No.797/2011 page 15 of 31

42. In these circumstances, the reasons allegedly given by the petitioner for leave and extension of leave and for overstaying leave between 1st January, 1997 to 10th April, 1997 lose significance. We are deprived of the benefits of the application made by the petitioner. No record is available which would substantiate petitioner‟s fitness after December, 1996. Whereas the circumstances examined cumulatively lend support to the petitioner‟s contention before us.

43. We may also note that the respondents are unable to point out or even suggest any circumstance or occasion when the petitioner would have suffered such an injury. It is an admitted position that the petitioner was a wrestler of repute who had not only been given his initial recruitment on account of his expertise as a wrestler but was also given accelerated promotions at two stages. There is nothing which could explain as to why a sportsman of such ability would suddenly give up sports, other than the injury of the nature which the petitioner had suffered which was aggravated and led to the difficulties which have been noted in the board proceedings held on 25th July, 2009.

44. We find that there is no material challenge to the death certificate of the petitioner‟s mother who died in 1987. We are concerned with the petitioner‟s leave in January, 1997 coupled with the fact that the petitioner‟s mother died in 1987 and the inability of the respondents to produce the records in support of their pleas. We therefore find that circumstances brought on record support the

WP(C) No.797/2011 page 16 of 31 petitioner‟s plea of his having been compelled to stay away from duty on account of his ill health.

45. The petitioner‟s contentions coupled with the inability of the respondents to place the medical record relating to the petitioner for the period after December, 1996 including the record of the yearly examination persuades us to hold that the petitioner has been able to substantiate the claim that the injury had been suffered in the circumstances set out in the writ petition. We are not able to place credence on the two alleged leave applications relied upon by the respondents for the reason that the petitioner disputes that he made such application. One is only a service certificate while the other alleged application is not in the petitioner‟s writing. The Municipal records relating to the demise of the petitioner‟s mother cast doubt on the respondents plea that the petitioner sought leave on the ground of his mother‟s death in 1996/1997. The second application does not appear to have been made by the petitioner.

46. In any case, the respondents have been unable to produce the record relating to the processing of such application by them or the orders passed thereon. We are completely in dark as to the manner in which the leave was regularized by the respondents and have only the petitioner‟s unrebutted claim in this regard.

47. Even if, we were to disbelieve the petitioner‟s case that the injury was suffered in December, 1996, we have no manner of doubt that the petitioner‟s disability was certainly aggravated by the discharge of official functions. Duties which the CISF

WP(C) No.797/2011 page 17 of 31 personnel are required to discharge certainly entail physical exercise.

48. We find that medical opinions and records of the year 2006 and 2009 placed before us endorse the petitioner‟s claim that his medical difficulties had only increased over the years.

49. We may note the explanation given by the respondents for the failure to review the petitioner‟s condition after 24 th July, 2006 which is "exigency of service and other administrative service problems." To say the least, this is callous treatment of the petitioner who has suffered severe medical problems by the forces.

50. It is noteworthy that the Medical Board held on 24th July, 2006 had clearly opined that the injury of the petitioner stood aggravated on account of his service condition. This finding was accepted by the respondents. The Medical Board dated 25th July, 2009 opined to the contrary. It gave no reasons to support its finding.

51. In this regard, our attention has been drawn to the pronouncement of this court report at 150 (2008) DLT 697 (DB) Juthar Singh (Ex. NB. SUB.) v. Union of India & Ors., the relevant extract whereof is reproduced hereunder:-

"3. The respondents have, along with the counter affidavit, produced record relating to proceedings of the medical board. We find that Part III of the proceedings, which deals with 'Opinion of the Medical Board' against the column as to whether the disability, namely, 'Agitated Depression' was aggravated due to military service or not, initially, remarks noted were

WP(C) No.797/2011 page 18 of 31 'Yes', which is scored out subsequently and word 'No' is substituted. Similar consequential changes are made in other columns. In column 2(d) wherein the Board has to give its opinion when the disease is not connected with the military service, it is mentioned "Probably Genetic Factors", though earlier it was mentioned 'N.A.', which is scored out. It is clear from the reading of this part that in the first blush opinion of the medical board was that the disease is aggravated due to military service, which is changed subsequently and after deleting the earlier entries, they are substituted by the negative entries. It also appears that it is initialled by only one person, namely, President of the Medical Board. In these circumstances, learned counsel for the petitioner submits that such a change of mind of the Medical Board should not be accepted and in support of this submission, he refers to the judgment of a Division Bench of this Court passed in WP(C) No.4260/1993 entitled Ex. Hawaldar Shri Chand Yadav Vs. Union of India and Others decided on 27.4.2006 where the fact situation was almost identical and this Court had made following observations:-

"(6) The records of the proceedings of the medical board have been placed before us. We have gone through the said records very carefully. On perusal of the said records we find that at one stage the concerned officers who had signed the said records of the proceedings of the Medical Board has recorded their satisfaction that the disability of the petitioner was aggravated due to stress and strain of service. However, it appears that some one struck out the same and wrote 'Not Applicable'. Reasons why the same is not applicable are not spelt out in

WP(C) No.797/2011 page 19 of 31 the endorsement made. Similarly, as against the column whether disability existed before entering service, at one stage it was written as 'Yes', which was later on scored out and was made 'No' subsequently. There are number of over writings in the said form. It further appears that the aforesaid act of changing the entries made is also without the signatures of all the three members of the Board, and there is only one initial appearing thereon without indicating as to who has put in his initials.

(7) xxxxx

(8) The petitioner was working in the field area when he fell ill. It is an admitted fact that the petitioner was medically fit at the time of his enrolment in the Army. The scored out portion of the medical records reveal that the Release Medical Board was satisfied that the disability of the petitioner was aggravated due to stress and strain of military service. No explanation has been given by the respondents as to why the said portion was scored out. It is also clear from the impugned order dated 17th December, 1992 that the appellate medical authority has only perused the petitioner's medical service document and has not examined the petitioner physically to have primacy over the Release Medical Board's opinion."

WP(C) No.797/2011 page 20 of 31

4. It is clear from the above that in the said case when the Division Bench found that the petitioner therein was working in the field area when he fell ill and he was medically fit at the time of enrolment in the Army, it went by the initial opinion of the medical board, which was scored out and opined that the Release Medical Board was satisfied that the disability of the petitioner was aggravated due to stress and strain of military service and no explanation has been given by the respondents as to why the said portion was scored out.

5. In the present case also we find that in the counter affidavit, no explanation is given as to why the said portion is scored out and substituted by a contrary opinion. No doubt, it is signed by the President of the Medical Board, but the other members have not signed the same. That apart, the cause for changing the opinion as given, that too on giving a second thought, is "Probably Genetic Factors". Obviously, this shows that even after change of mind the Medical Board was not very categorical in its finding as to whether the cause of disease was genetic or it was aggravated due to military service. Without commenting much, it would be suffice to state that the very nature of the disease, namely, 'Agitated Depression' may suggest that it might have been aggravated by the military service, if not attributable, though it is possible that such a disease can even be attributable to the military service. However, having regard to the medical board's own opinion initially formed and no definite opinion expressed while changing the initial opinion, we are of the view that keeping in view the mandate of the aforesaid judgment in the case of Ex. Hawaldar Shri Chand Yadav Vs. Union of India and Others (supra), the petitioner be granted disability pension.

WP(C) No.797/2011 page 21 of 31

52. Learned counsel for the petitioner has placed reliance on 2008 VIII AD (Delhi) 702, B.B. Suresh Kumar (Ex. Nk.) v.

Union of India & Ors. wherein the court held as follows:-

"5. In the writ petition it is stated that the petitioner was diagnosed as a case of "Venticular Sclerosis" when a CT scan was carried out. The invaliding Medical Board is alleged not to have followed the Regulation of 423 referred to above as no reasons were given as to why the disease of the petitioner was not attributable to or aggravated by the Military Service since the petitioner has served for a period of 20 years and did not suffer from any disease on his entry in the service. The petitioner claims that in the year 1999 he was posted to a high altitude and snow bound area where he was exposed to snow and was not provided with the snow goggles. Thus the petitioner suffered from the reflection of snow and started having difficulty of loss of vision in both his eyes. No specialist treatment could be organized then and therefore given thus routine treatment was given to the petitioner. The aggravated problem came to light when the petitioner was transferred to the Base Hospital by when the damage to his eyes has already been done. Our attention has not been drawn to any rebuttal to this material averment which shows the claim of the petitioner as to why he suffered from this problem. No parawise counter affidavit has been filed nor these material aspect have been dealt with in the counter affidavit.

      6.     xxx                 xxx                     xxx

      7.    xxx                 xxx                      xxx

8. Be that as it may, nothing precludes us from perusing the judgment and seeing the ratio. We consider it appropriate to utilize some observation

WP(C) No.797/2011 page 22 of 31 made therein on the basis of what was stated by the medical specialist who appeared in court in pursuance to the direction passed in that case. It would be relevant to refer to para 15 which reads as under:-

"In furtherance to direction of the Court, medical specialists have appeared during the course of hearing of these petitions. In response to query by the Court, the medical specialists have expressed their opinion that „Constitutional disorder‟ or „Constitutional disease‟ would relate to a situation where the Medical Board is unable to find a cause for the disease which a person is suffering from. In those circumstances it is recorded that the disease is neither the attributable nor aggravated by army service. In other words, if the medical authorities failed to determine cause, onset or arrive at a definite diagnostic opinion in relation to disease of a member of the force, it is bound to adversely affect the interest of the member in relation to grant of disability pension. According to these experts, the constitutional disorder would normally result in recording the remark, not attributable to nor aggravated by military service‟ without any further or proper diagnosis. Butter- Worths Medical Dictionary, defines „Constitutional‟ as:-

"Relating to the state of constitution, inherent in the Constitution of mind or body, relating to the bodily system as a whole". The expression Constitutional Disorder or disease would thus have to be understood even in its common parlance

WP(C) No.797/2011 page 23 of 31 as something which is relatable to human mind and/or body. Its existence in either of them could be specifically diagnosed both in relation to cause, time of its existence as well as onset of the disease. This can hardly be termed as just and fair approach in consonance with rules and regulations. The disease like Schizophrehia, Nurosis and other Psychiatric related disease can be aggravated if not attributable to Army service. If they are constitutional diseases or disorders, then they must be relatable to human body and/or mind and can be detected by proper diagnose including the time i.e. pre or post joining the Army. It would be required of the authorities concerned to reasonably show on record that such diseases or their basic symptoms existed prior, though the disease manifested later or even co-relate the onset of the disease to a period prior to the joining of service by the petitioner. It is reasonably expected that the medical experts would be able to even trace the cause, origin of the disease as was done in the case of JC 264149-M Ex. Naib Sub. Marut Sharan Tiwari v. Union of India and others, being CWP No. 23320 of 2005 decided on 13.7.2006."

9. xxx xxx xxx

10. Our attention has also been drawn to the judgment in CWP No. 2221 of 2005, Ex. Sub. Major Ram Kishan v. UOI decided on 14.3.2006 where it is observed as under:-

WP(C) No.797/2011 page 24 of 31 "15.When an individual is found suffering from any disease or has sustained injury, he is examined by the medical experts who would not only examine him but also ascertain the nature of disease/injury and also record a decision as to where the said personnel is to be placed in a medical category which is lower than „AYE‟ (fit category) and whether temporarily or permanently. They also give a medical assessment and advice as to whether the individual is to be brought before the release/invaliding medical board. The said release/invaliding medical board generally consists of three doctors and they, keep in view the clinical profile, the date and place of onset of invaliding disease/disability and service conditions, draws a conclusion as to whether the disease/injury has a casual connection with military service or not. On the basis of the same they recommend (a) attributability, or (b) aggravation, or (c) whether connected with service. The second aspect which is also examined is the extent to which the functional capacity of the individual is impaired.

The same is adjudged and an assessment is made of the percentage of the disability suffered by the said personnel which is recorded so that the case of the personnel could be considered for grant of disability element of pension. Another aspect which is taken notice of at this stage is the duration for which the disability is

WP(C) No.797/2011 page 25 of 31 likely to continue. The same assessed/recommended in view of the disease being capable of being improved.

All the aforesaid aspects are recorded and recommended in the form AFMSF-16.

The Invaliding Medical Board forms is opinion/recommendation on the basis of the medical report, injury report, Court of inquiry proceedings, if any, charter of duties relating to peace or filed area and of course, the physical examination of the individual.

xxx xxx xxx

It was also held that the opinion given by the doctors of the Medical Board shall be given due weightage and primacy in the matter of ascertaining as to whether or not the injury/illness sustained was due to or was aggravated by the military service which contributed to invalidation from the military service. At this stage we may also take up the plea raised by the petitioner that the disease from which the petitioner had suffered cannot be said to be constitutional in nature. This submission is sought to be supported by this Court in Satpal Singh v. Union of India and others (supra) is now stood impliedly repealed by the decision of the Supreme Court in the case of Controller of Defence Accounts (Pension) and others v. S. Balachandran Nair, reported as 2005 IX AD (S.C) 53 = 2005 (4) SCT 607 (SC) : AIR 2005 SC 4391.

In the said decision the Supreme Court

WP(C) No.797/2011 page 26 of 31 after considering the various provisions and the decisions on the subject including the case of Union of India and another v. Baljit Singh, reported as 1996(1) SCC 315 held that Medical Board‟s opinion to the effect that illness and disability suffered by the respondent therein was not attributable to military service cannot be substituted by the Court in order to arrive at a contrary finding. It was also held that where a medical board found that there was absence of proof of the injury/illness having been sustained due to military service or being attributable thereto, the High Court‟s direction to the Government to pay disability pension was not correct. The Supreme Court also dealt with the contention that the fact that the employee was posted at sensitive border area and, therefore, his illness is fully attributable to military service was negative by the Supreme Court in the said decision. We may also refer to the decision of the Division Bench of this Court in Md. Tanwir Alam v. Union of India and others (supra). In the said case also the petitioner was enrolled as Nursing Assistant and while undergoing training he developed the said disease within a short period when the aforesaid disease was diagnosed. Despite the said fact the Division bench has held that the decision of the appropriate medical authority coming to the conclusion that the disease of the employee was not related to the military service cannot be interfered with. We may also refer to the

WP(C) No.797/2011 page 27 of 31 decision of Shri Bhagwan (supra). In paragraph 185,186,187 reference was made to other decisions of the Single Judges of this Court. The Division Bench of this Court overruled the Single Judge‟s decision holding that when the medical board has given a categorical opinion that the petitioner‟s ailment was constitutional and even the CCDA had opined that the petitioner was not suffering from any ailment which could be attributed to or aggravated by military service and that it did not exist before or during military service, such opinion could not be set aside merely because it was felt that the word "constitutional" is not an adequate reason for denying disability pension. In our considered opinion, the law is, therefore, crystal clear on the subject needs no further reiteration.

In the backdrop of the aforesaid legal position which is made clear by several decisions of this Court as also by the Supreme Court the facts of the present case are required to be considered. Here is also a case where the Release Medical Board has given its definite opinion that the disease from which the petitioner is suffering is constitutional in nature and that the said disease and disability is neither attributable to nor aggravated by the military service. The said report of the medical board will have definite primacy, but in the facts of the present case we also find that there was a medical board earlier constituted which examined

WP(C) No.797/2011 page 28 of 31 the petitioner medically and found that there was Hypertension from which the petitioner was suffering. It was held by the said Medical Board that the disease was aggravated by military service.

Therefore, there is a conflict of opinion between the two medical boards, one gave its opinion in 1974 whereas the other medical board has given its opinion in 1983. It is true that the despite the opinion given by the medical board in 1974 the petitioner worked with the respondents for 10 more years and he stood discharged from service after completing his tenure. But it is apparent on the records of the case that the petitioner was still suffering in 1983 from the same disease i.e. Hypertension and there was an additional disease, namely, Achalasia Cardia (Optd) from which he was found to be suffering from."

11. The facts of the present case are glaring. The petitioner served the respondents for 20 years. There was no eye problem detected either at the stage of the petitioner joining of the service or for a period of 17 years thereafter. The first detection was three years prior to his being invalidated out of the service. This coupled with the averments made in the writ petition about the petitioner serving at a high altitude and snow bound area without the snow goggles aggravated the problem are unrebutted."

53. The principles laid down in the judicial precedents squarely apply to the facts and circumstances of the instant case. In this background, the contradictory findings of the medical board dated

WP(C) No.797/2011 page 29 of 31 25th July, 2009 bereft of any explanation or reasoning cannot be relied upon. The findings in the Medical Board dated 24th July, 2006 clearly bind the respondents.

54. We therefore, have no hesitation in holding that the petitioner would be entitled to disability pension under Rule 3- A.(1) (a) of Central Civil Services (Extraordinary Pension) Rules.

55. The petitioner has been certified to be 90% disabled and has been retired from service for this reason.

We accordingly direct as follows:-

(i) the respondents shall pass appropriate orders sanctioning disability pension to the petitioner within eight weeks from the date of this order.

(ii) the orders which are passed and the computation carried out shall be communicated to the petitioner.

(iii) the payment in terms of the above shall be paid to the petitioner within a period of four weeks thereafter failing which the amount payable to the petitioner would carry interest @ 9% per annum till the payment is made.

(iv) in case of non-compliance, the petitioner shall be at liberty to take appropriate action as would be available under the Contempt of Court Act, apart from any other remedy.

(v) The petitioner would be entitled to cost of the writ petition which are assessed at Rs.25,000/-. The respondents will be entitled to adjust this amount from the amount of Rs.50,000/- which has been paid to the petitioner pursuant to the order dated 11 th

WP(C) No.797/2011 page 30 of 31 November, 2011 and 3rd February, 2012. The remaining amount of Rs.25,000/- shall be adjusted by the respondents against the arrears of the disability pension payable to the petitioner in terms of this judgment.

This writ petition is allowed in the above terms.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE

JULY 12, 2013 mk

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