Delhi High Court

Ram Janam Singh vs Union Of India & Ors on 28 October, 2014

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 1478/2014
       RAM JANAM SINGH                                    ..... Petitioner
                    Through            Dr. L. S. Chaudhary & Ms.
                                       Pratibha Gupta, Advocates

                          versus

       UNION OF INDIA & ORS                            ..... Respondents
                     Through           Mr. Nishant Gautam, Advocate for
                                       Mr. Ankur Chhibber, Advocate
                                       alongwith W/C Shital Vachhani &
                                       S/L Baljeet Singh

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

       %            28.10.2014

KAILASH GAMBHIR, J. (ORAL)

1. In this petition, the petitioner seeks to challenge the orders dated

12.04.2010 and 12.03.2013 passed by the learned Armed Forces

Tribunal, Principal Bench, New Delhi (hereinafter referred to as the

'learned AFT').

2. The grievance raised by the petitioner is that the Release Medical

Board (in short 'RMB') had assessed the permanent disability of the

petitioner as 60% based on which he was invalidated out of the service

but his disability was wrongly assessed as 40%.

3. The petitioner was enrolled in the Air Force as Airman

(Wpn/Tech.) on 12.04.1971 and at the time of induction into service he

was found medically fit and free of any kind of ailments whether

constitutional in nature or otherwise. The petitioner was again subjected

to thorough medical examination on 16.01.1981 to assess his medical

fitness to perform Flight Gunner duties and he was found medically fit

and accordingly was put under medical category A1G1. The petitioner

was promoted from time to time and was finally promoted to the rank of

Master Warrant Officer (in short 'MWO') as a Flight Gunner.

4. In the year 1997, the petitioner had developed some medical

complications, as a result of which, he was declared medically unfit for

Flight Gunner duties. The petitioner was examined by the RMB before he

was invalidated out of the service and as per the opinion of the RMB his

permanent disability was assessed as 60%. The petitioner was discharged

from service by order dated 06.04.1999 passed by the respondents. The

petitioner made a request for the grant of disability pension but the same

was rejected by the respondents vide order dated 17.03.2003 and

thereafter the trail of litigation came into being.

5. While disposing T.A. No.277/2010, the learned AFT took a view

that the petitioner is entitled to disability pension from the date of his

release @ 30% and based on this disability, a direction was given to the

respondents to calculate his disability pension and pay the same to the

petitioner. The learned AFT also directed the respondents to pay interest

@ 12% on the arrears of the pension.

6. Being aggrieved by the said order, the petitioner had filed a review

petition being R.A. No. 50/2012 and vide order dated 12.03.2013, the

learned AFT dismissed the said review petition finding no error apparent

on record in the order dated 12.04.2010. While disposing off the said

review petition, the learned AFT observed that 30% disability was

assessed, because it was attributable to the military service for IHD

(ASMI (PTCA done). However 20% for the ID (i) CVA (Lt MCA

Infarct) (old) was not said to be attributable to military service and

accordingly the petitioner was granted disability pension only to the

extent of 30% as the same was only attributable to the military service.

The said two orders passed by the learned AFT are under challenge in the

present Writ Petition.

7. Dr. L.S. Chaudhary, the learned counsel for the petitioner submits

that the legal position now has been settled by the Apex Court in a

judgment in the case of Dharamvir Singh v. Union of India and Ors.

(2013) 7 SCC 316 and as per the report of this judgment even the first

disability which was said to be neither attributable to nor aggravated by

the service conditions should also be taken into consideration to assess

the composite disability of the petitioner and if that disability is taken into

consideration, then the disability percentage would come to 60% and if

the same is combined then the petitioner would be entitled to disability

pension based on his permanent disablement assessed as 60% and to 75%

on being rounded off.

8. The learned counsel for the petitioner also submits that it is not in

dispute between the parties that the petitioner was found medically fit at

the time of entering into service of respondent No.2 and the said two

disabilities had occurred to the petitioner during the course of service and

that too after a period of 28 years of service. The learned counsel for the

petitioner thus submits that both the disabilities which were identified by

the RMB can be said to be attributable to his service conditions and the

same got aggravated during the course of his service, therefore, the

disability of the petitioner is required to be assessed @ 60% and not @

30% as illegally assessed by the RMB which has been upheld by the

learned AFT.

9. This petition is strongly opposed by the respondents. Mr. Nishant

Gautam, Advocate for Mr. Ankur Chhibber, the learned counsel for the

respondents, on instructions from W/C Shital Vachhani & S/L Baljeet

Singh, submits that as per the opinion of the RMB, the petitioner was

found to be suffering from two different medical conditions, i.e. i) CVA

(Lt. MCA infract) (old) and ii) IHD (ASMI) (PTCA done), and so far as

the first medical condition is concerned, the same was opined to be not

attributable to service conditions and it is only the second medical

condition which developed due to stress and strain in service that was

held to be attributable to the service conditions. The learned counsel for

the respondents thus submits that the disability pension of the petitioner

has to be assessed as per the second medical condition and his first

medical condition cannot be combined with the second medical

condition. The learned counsel for the respondents has also placed

reliance on Annexure-I of Chapter IV of the Guide to Medical Officers

(Military Pension), 2002 whereunder medical condition No.1 has not

been classified as one of the diseases attributable to the service

conditions. In so far as some changes shown in the RMB mentioning the

second disability @ 30% is concerned, the learned counsel for the

respondents submits that the same should be taken @ 40% as originally

indicated in the relevant column of the opinion of the RMB. The learned

counsel for the respondents also submits that so far as the first medical

condition i.e. CVA (Lt. MCA infract) (old) is concerned, it is on account

of the pre-disposition of the petitioner to have the said disease, which is

primarily constitutional in nature, hence it is not necessary for such kind

of diseases to be diagnosed at the time of entering into the service by a

person, but the same can occur at any stage of service without there being

any stress or strain due to the service conditions. The learned counsel for

the respondents thus submits that disability of the petitioner has been

rightly assessed @ 40% as per the opinion of the RMB and Guide to

Medical Officers (Military Pension), 2002.

10. We have heard the learned counsel for the parties at considerable

length and have given our thoughtful consideration to the arguments

advanced by them.

11. Indisputably, the petitioner was not suffering from either of the two

medical conditions at the time of entering into the service. In Dharamvir

Singh v. Union of India & Ors., (supra) the Apex Court clearly took a

view that if no note of disability or any disease was made at the time of

initial joining in military service, a disease which has led to an

individual's discharge or death will ordinarily be deemed to have arisen

in service. We may usefully refer to the following para of the judgment

for better appreciation of the controversy held:

"Referring to Rule 423(c) it was submitted that the cause of disability or death resulting from a disease will be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the Armed Forces determined and contributed to the onset of the disease. A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of individual's acceptance for service in the Armed Forces. However, if medical opinion holds, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service."

12. In the light of the said view taken by the Apex Court, there arises

no difficulty in taking a view that so far as the two medical conditions as

opined by the RMB is concerned, the same can be clearly held to be

attributable to the service conditions as the petitioner was neither

suffering from such kind of diseases at the time of entering into the

service nor was he when his second medical examination was carried out

in the year 1991. Therefore, 20% disability in the first medical condition

has to be counted alongwith his disability as assessed in the second

medical condition and if we combine the same, the disability of the

petitioner comes to 60% and if the same is rounded off as per the laid

down norms, the petitioner is entitled to a disability pension at 75%. In so

far as the contention raised by the learned counsel for the respondents that