Delhi High Court
Union Of India & Ors. vs Col. Amita Jain Retd on 24 February, 2025
Author: Navin Chawla
Bench: Navin Chawla
$~57
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 24.02.2025
+ W.P.(C) 2355/2025
UNION OF INDIA & ORS. .....Petitioners
Through: Ms. Avshreya Pratap Singh
Rudy, SPC with Ms. Usha
Jamnal, Ms. Harshita
Chaturvedi & Mr. Siddhant
Nagar, Advs.
Major Anish Muralidhar, Army.
versus
COL. AMITA JAIN RETD .....Respondent
Through: Mr. SS Pandey and Mr. Roshan
Kumar, Advocates.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE SHALINDER KAUR
NAVIN CHAWLA, J (ORAL)
1. Allowed, subject to all just exceptions.
2. Application stands disposed of.
W.P.(C) 2355/2025 & CM APPL.11199/2025
3. The present petition has been filed by the petitioners,
challenging the Order dated 27.09.2024 passed by the learned Armed
Forces Tribunal, Principal Bench, New Delhi (Tribunal), in Original
Application (OA) No.1008/2023, titled Col. Amita Jain (Retd.) vs.
Union of India & Ors., allowing the original application filed by the
respondent herein with the following directions: -
"17. In view of the aforesaid judicial
pronouncements and the parameters referred
to above, O.A. No. 1008 of 2023 is allowed to
the extent that the applicant is entitled for the
disability element of pension in respect of the
two disabilities i.e. Bronchial Asthma @ 20%
and Primary Hypertension @ 30% and the
composite assessment of same is being
calculated as per MoD letter No.
16036/RMB/IMB/DGAFMS/MA (Pens) dated
14.12.2009 as under:
Disability-Primary Hypertension = 30%
(disability with maximum
percentage)
Disability-Bronchial Asthma (100-30) = 70 x
20/100 = l4%
Composite Assessment = 30+14 = 44%
18. The respondents are directed to grant
the disability element of pension to the
applicant @ 44% for life which is directed to
be rounded off to 50% for life, with effect from
the date of retirement in terms of the judicial
pronouncement of the Hon'ble Supreme Court
in the case of Union of India vs. Ram Avtar
(Civil Appeal No.418/2012) decided on
10.12.2014.
19. Accordingly, the respondents are
directed to calculate, sanction and issue
necessary PPO to the applicant within three
months from the date of receipt of copy of this
order, failing which, the applicant shall be
entitled to interest @ 6% per annum till the
date of payment."
4. It is the case of the petitioners that the learned Tribunal has
erred in finding that the disabilities suffered by the respondent, that is,
Bronchial Asthma and Primary Hypertension are attributable to or
aggravated by service. It is submitted that the Release Medical Board,
though had found the disability of Bronchial Asthma to be aggravated
by service, for Primary Hypertension, the consistent finding was that it
is neither aggravated nor attributable by service. The Competent
Authority, however, disagreed with the opinion of the Release
Medical Board as far as Bronchial Asthma being aggravated by
service is concerned. The disability pension for the two disabilities
was therefore, rejected. The respondent, being aggrieved of the same,
preferred the first appeal, which stood rejected by an Order dated
13.05.2022. The second appeal thereagainst was also rejected vide
Order dated 28.12.2022.
5. The learned counsel for the petitioners submits that, therefore,
the learned Tribunal has erred in finding that the above disabilities
were aggravated by service, by merely placing reliance on the
Judgment of the Supreme Court in Dharamvir Singh vs. Union of
India and Ors., 2013 (7) SCC 316.
6. On the other hand, the learned counsel for the respondent, who
appears on advance notice of this petition, submits that the respondent
only for the sake of bringing about the finality to the dispute, is not
pressing the disability element of pension for the disability of Primary
Hypertension. The respondent confines his claim only against the
rejection of the disability element of the pension for Bronchial
Asthma.
7. He submits that as far as Bronhial Asthma is concerned, the
opinion of the Medical Board of it being aggravated by service, was
disagreed with by the Secretarial Department of the respondent, whih
had no authority to do so, not being expert in the medical field.
8. He submits that the petitioners have already accepted that the
third disability, that is, "Fracture at the base of the 5th Metatarsal
(LT)" is attributable to service and has been assessed as 10%. He
submits that the Release Medical Board had computed the composite
net assessment qualifying for disability pension as 28%-30% for life
for the disability of Bronchial Asthma and Fracture at the base of the
5th Metatarsal (LT). Therefore, the petitioner, is entitled to grant of
disability pension even ignoring the disability of Primary
Hypertension.
9. We have considered the submissions made by the learned
counsels for the parties.
10. It is not disputed that the Release Medical Board in its report
dated 09.02.2021, as confirmed by the "Confirming Authority", had
opined that the Bronchial Asthma and Fracture Base of 5th Metatarsal,
suffered by the respondent, to be aggravated by service condition. We
quote the findings of the Medical Board as follows:
"PART VII
OPINION OF THE MEDICAL BOARD
1. Please endorse diseases/dis in chronological order of occurrence:
Disabilities Attributable Aggravated Detailed Justification
to service by service
(Y/N) (Y/N)
(a) BRONCHIAL No Yes Onset of ID in Apr 2016
ASTHMA (J45.901) while serving in MH
Meerut (UP) peace area.
ID is conceded as
aggravated due to stress
and strain of mil service
as per para 5, Chapter
VI of GMO (Mil
Pensions) 2008.
(b) PRIMARY No No Onset of ID in Aug 2018,
HYPERTENSION while serving in Base
(110) Hosp Delhi Cantt (Peace
Area). ID is conceded as
neither attributable nor
aggravated by mil
service as per Para 43 of
Chapter VI of GMO's
(Mil Pension), 2008.
(c) FRACTURE Yes No Injury sustained by indl
BASE OF 5TH on 20 Nov 2020 while
METATARSAL (LT) serving in Base Hosp
(S92,352A) Delhi Cantt (Peace
Area). ID is conceded as
attributable to service as
epr injury report (IAFY-
2006) dt 11 Jan 2021.
(Emphasis supplied)
11. As noted hereinabove, the said report was even accepted by the
Confirming Authority, however, "the Competent Authority" which is
only an administrative body, rejected the opinion of the Medical
Board. Aggrieved thereof, the respondent preferred a first appeal,
which was also stood rejected by an Order dated 13.05.2022, wherein
as far as the disability of Bronchial Asthma is concerned, it was
opined as under:
"As per the documents perused, the officer
presented with complaints of breathlessness
for the first time in Apr 2016. She was posted
at MH Meerut at that time. Officer was
evaluated and diagnosed as a case of
Bronchial Asthma and started on medication.
She was placed in LMC and followed up
thereafter. There was no evidence of residual
lung damage. The officer was stable on
medication. Bronchial Asthma is essentially
an allergic condition. Asthmatics are very
sensitive to both climate and locality but the
effects are so variable in patients that no
general rule can be laid down. Sudden
exposure to cold or occupations involving
inhalation of vapours e.g. drivers, cooks,
bakers, rubber workers may bring on an
attack. While increased susceptibility to
allergens and exciting factors may result from
exacerbations of asthma occasioned by service
factors, such manifestations in service would
not automatically be regarded as necessary
amounting to permanent or persistent
aggravation. Each case must be considered
on its own merits and the question of
persistence of aggravation can only be
determined by previous history, nature and
length of exposure to service factors, the effect
of treatment, subsequent employment and
progress of disease. However, presence of
residual lung signs such as (rhonchi,
prolonged expiration) hyper inflated
emphysematous lungs, pigeon chest deformity
and impaired lung function tests are useful
guides to chronicity of the disease. In the ibid
case, the officer was provided medical
assistance at the earliest and was given
sheltered appointment as per the disability.
There was no evidence aggravation in the
form of residual lung damage and pulmonary
function tests were satisfactory with
medication. The disability was well controlled
with medication. Hence, disability is conceded
as neither attributable nor aggravated by
military service as per Para 5 Chap VI, GMO
2002/2008."
12. Therefore, though it was conceded in the order rejecting the
first appeal, that "increased susceptibility to allergens and exciting
factors may result from exacerbations of asthma occasioned by
service factors", in the present case, only because there was no
evidence of aggravation in form of residual lung damage and the
pulmonary function test of the respondent was found satisfactory
"with medication", the claim of disability pension was denied to the
respondent. The petitioner, therefore, placed a negative burden on the
respondent and rejected his claim of disability pension by drawing an
assumption against him rather than in his favour, which is
impermissible under the extant rules.
13. The second appeal there against was also dismissed by giving
the following reasons:
"The disability Bronchial Asthma is held as
neither attributable to nor aggravated by
military service as it does not fulfil the
conditions laid down as per Para 5, Chap VI,
GMO 2002/2008."
14. The learned Tribunal, has rightly placing reliance on the
Judgment of the Supreme Court in Ex. Sapper Mohinder Singh vs.
Union of India & Ors. in (Civil Appeal No.164/1993), decided on
14.01.1993, has held that the administrative authority/higher
formation cannot sit over the opinion of the Medical Board. In the
present case, since the Medical Board had already opined that the
disability of Bronchial Asthma was aggravated by service condition, it
was not for the Competent Authority to overrule this opinion only on
the basis of certain presumptions and deny the disability element of
pension for the same to the respondent. We quote from the finding of
the learned Tribunal as follows:
"12. It is an undisputed fact that the RMB has
opined the applicant's disabilities 'Bronchial
Asthma' as 'aggravated by military service'
and 'Fracture Base of 5th Metatarsal (Lt)' as
'attributable to military service' due to stress
and strain of service as is evident from the
RMB proceedings i.e. Part-VII Opinion of the
Medical Board. However, the said opinion of
the RMB has been overruled by the competent
authority of the respondents and denied the
disability pension to the applicant. The issue in
question is no more res integra. The same is
squarely covered by the decision of the
Hon'ble Supreme Court in the case of Ex
Sapper Mohinder Singh vs. Union of India &
Ors.{Civil Appeal No.104 of 1993} decided on
14.01.1993, wherein the Hon'ble Apex Court
has observed that without physical medical
examination of the patient, the administrative
authority/higher formation cannot sit over the
opinion of a medical board. The observations
made in the judgment in the case of Ex Sapper
Mohinder Singh (supra) being relevant is
quoted below:
"From the above narrated facts and the
stand taken by the parties before us, the
controversy that falls for determination
by us is in a very narrow compass viz.
whether the Chief Controller of Defence
Accounts (Pension) has any jurisdiction
to sit over the opinion of the experts
(Medical Board) while dealing with the
case of grant of disability pension, in
regard to the percentage of the disability
pension or not. In the present case, it is
nowhere stated that the petitioner was
subjected to any higher medical Board
before the Chief Controller of Defence
Accounts (Pension) decided to decline
the disability pension to the petitioner.
We are unable to see as to how the
accounts branch dealing with the
pension can sit over the judgment of the
experts in the medical line without
making any reference to a detailed or
higher Medical Board which can be
constituted under the relevant
instructions and rules by the Director
General of Army Medical Core."
15. In view of the above, the finding of the learned Tribunal,
insofar as it grants the disability element of the pension to the
respondent for Bronchial Asthma, assessed at 20%, is not interfered
with. However, as far as the finding and direction regarding the grant
of disability element of the pension to the respondent for Primary
Hypertension is concerned, the same having already been conceded by
the learned counsel for the respondent is, therefore, set aside.
16. The petitioners shall now release the disability element of
pension to the respondent in accordance with the opinion of the
Release Medical Board, which we have mentioned and quoted
hereinabove.
17. The percentage at which the disability element of the pension is
to be released to the respondent, shall be calculated by the Competent
Authority of the petitioners, and the necessary Pension Payment Order
shall be issued within a period of four weeks from today. It is clarified
that in case the respondent is entitled to the claim of broad banding of
the percentage in terms of the Judgment of Union of India vs. Ram
Avtar (Civil Appeal No.418/2012), the same shall also be extended to
the respondent.
18. The payment of arrears upon the issuance of the revised pension
payment order shall be released to the respondent within a period of
four weeks thereafter. In case of delay in release of the arrears beyond
the period granted, the petitioner shall pay to the respondent, interest
at the rate of 6% per annum.
19. The petition, as well as the pending application, stands disposed
of in the above terms.
NAVIN CHAWLA, J
SHALINDER KAUR, J
FEBRUARY 24, 2025/ab/sk/DG
Click here to check corrigendum, if any
