Abhai Singh vs Boder Security Force
2014 Latest Caselaw 3438 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of Decision: 31. 07.2014

                + WP (C) No.2059 of 2007, CM No.11506/2013

       ABHAI SINGH                                         ..... Petitioner
                Through:Ms. Amita Gupta, Adv.

                                   Versus

       BODER SECURITY FORCE                     ..... Respondent
                Through:Mr. Prashant Sivarajan, Adv.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE NAJMI WAZIRI

KAILASH GAMBHIR, J. (Oral)

1. By this petition filed under Article 226 of the Constitution of India,

the petitioner seeks to direct the respondent to grant disability pension to

the petitioner in terms of Rule 3-A(1)(a) CCS (EOP) Rules. The petitioner

herein was recruited as Constable in Border Security Force on 21.2.1994.

One day, during the course of his duty, while he was learning to walk on

ropes he fell down from a height and hurt himself, which led to causing of

pain in L2-L5 region of his spine. He was admitted in Ahmedabad

Hospital. Later, he was examined by the Chief Medical Officer of

Safdarjung Hospital, New Delhi on 2nd February, 2001. The medical

certificate issued by Safdarjung Hospital, records that the petitioner had

fallen from height leading to pain in L2-L5 region since October, 1994.

Counsel submits that one day in the year 1995 while running the petitioner

became unconscious and was hospitalized. The petitioner was also

examined by the Medical Board of 21st Battalion, BSF and the Board

categorically recorded that the petitioner was apparently alright in January,

1995. Therefore, it is admitted that at least till this date the petitioner did

not suffer from any medical affliction. Hence if he became medically

disabled then such disadvantage would be clearly attributable to the

service. However in January, 1995 he suffered acute lower backache and

was diagnosed as a case of Pott's spine with PSOAS abscess at Safdarjung

Hospital, New Delhi. As per the opinion of the Board, the disability of the

petitioner was assessed to the extent of 20%. Based on his medical

examination by the 21st Battalion, BSF, the petitioner was informed that he

had been declared medically invalidated with 20% disability, therefore he

shall be retired from service on this count with effect from 30 th June, 2002.

2. The petitioner also contends that on 13th May, 2003 he was asked to

proceed to his parent unit for further duties and he was again examined by

the Medical Board on 11.9.2004 when he was declared medically

invalidated with 56% disability. Vide order dated 25.12.2004, the 21 st

Battalion, BSF declared the petitioner completely and permanently

incapacitated for further service in the BSF. Accordingly he was

invalidated out from service with effect from 28 th February, 2005 with

pensionary benefits in terms of relevant pension rules. In a nutshell, the

case of the petitioner is that he is entitled to disability pension under

Category 'B', since he had suffered the disability during the course of his

employment and therefore the disability is clearly attributable to and got

further aggravated during the later tenure of his service. It is also the case

of the petitioner, that on the date of his recruitment he was not suffering

from any such problem and therefore he could not be denied the disability

pension, which was assessed by Medical Board of the BSF. Learned

counsel for the petitioner relies upon para 30 of the judgment of the

Supreme Court in Dharamvir Singh vs. Union of India & Ors., JT 2013

(12) SC 44, which reads as under:

"In the present case it is undisputed that no note of any disease has been recorded at the time of appellant's acceptance for military service. The respondents have failed to bring on record any document to suggest that the appellant was under treatment for such a disease or by hereditary he is suffering from such disease. In absence of any note in the service record at the time of acceptance of joining of appellant it was incumbent on the part of the Medical Board

to call for records and look into the same before coming to an opinion that the disease could not have been detected on medical examination prior to the acceptance for military service, but nothing is on the record to suggest that any such record was called for by the Medical Board or looked into it and no reasons have been recorded in writing to come to the conclusion that the disability is not due to military service......"

3. In the counter affidavit filed by the respondents, they have admitted

that the petitioner was awarded medical category S1 H1 A1 P5 E1 with

20% disability with effect from 5.2.2002. The respondents have also

admitted this fact on 15.1.1995 that after completion of his basic training,

the petitioner had suffered from acute lower backache and was diagnosed

as a case of Pott's spine L3 L4 with PSOAS abscess at Safdarjung

Hospital, New Delhi and he was awarded medical category CEE(T) with

effect from 5.2.2002 to the extent of 20% medical disability. While admitting

this fact, the respondents had taken a contradictory stand, by stating that the

cause of his disability due to falling from the rope was denied for want of

documents. This is a case of gross injustice caused to the petitioner at the hands

of the respondents by denying him the disability pension, when his case was

squarely covered under Category 'B' of the office memorandum dated 12th

February, 2000. We cannot be oblivious of the fact that disability of the

petitioner was assessed to the extent of 20% by the Medical Board of the

BSF and he was not suffering from any such disabilities at the time of his

recruitment. Had it been so, the respondent would have placed on record

to show that the petitioner had such kind of problems on the date of

recruitment. The said disability is clearly attributable and was aggravated

during the period of his service as a Constable and the petitioner had been

clearly denied disability pension. However, he was invalidated on account

of medical ground by order dated 22.11.2002.

4. In the above circumstances, we allow the present petition. Let the

respondent grant the disability pension in terms of Rule 3-A(1)(a) CCS

(EOP) Rules and the entire arrears shall be paid to the petitioner by the

respondent within a period of four weeks from today along with the

interest @ 9% per annum. On the failure of the respondent to release the

said amount, adverse consequences shall ensue against the respondents.

5. The petition is disposed off in the above terms.

KAILASH GAMBHIR, J.

NAJMI WAZIRI, J.

JULY 31, 2014/ak