Uoi And Ors vs V. K. Rampal
2021 Latest Caselaw 1761 j&K

                                                                  Sr. No. 09

          HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT JAMMU

                                              LPASW No. 89/2010
                                              IA No. 127/2010


UOI and Ors.                                       .....Appellant(s)/Petitioner(s)


                       Through: Mr. Vishal Sharma, ASGI.

                 Vs

V. K. Rampal                                                  ..... Respondent(s)


                       Through: Mr. U. K. Jalali, Sr. Advocate with
                                Ms. Shivani Jalali, Advocate.

Coram:    HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
          HON'BLE MR. JUSTICE MOHAN LAL, JUDGE

                                    ORDER

28.12.2021

(Open Court)

(Per:- Thakur-J)

1. The present Letters Patent Appeal has been preferred against the

judgment and order dated 14.11.2008, passed by the Writ Court, wherein,

the petitioner (respondent herein) has been held entitled to War Injury

Pension at the rate of 70% disability.

Briefly stated the material facts are as under: -

2. The petitioner retired as a Lieutenant Colonel from the Indian Army

on 28.02.1997. As per the procedure prescribed under rules, he was

subjected to a medical examination by Resurvey Medical Board and was

found to be suffering from the following disabilities:-

i. Post burn contracture Rt Hand - 0% attributable to military

service.

ii. Primary hypertension and simply obesity- 30% aggravated by

military service.

iii. Bronchial Asthma - 20% attributable to nor aggravated by

military service.

iv. Old injury knee Rt. Effect of - 20% attributable to military

service.

v. Old dislocation elbow left - 20% neither attributable to nor

aggravated by military service.

vi. Old fracture scaphoid Rt effect of - 20% neither attributable to

nor aggravated by military service.

The Medical Board assessed the disability at 70% for two years in

regard to six diseases / injuries suffered by the petitioner.

3. It appears that, subsequently, the petitioner was subjected to a

Release Medical Board, which was of the opinion that the petitioner had

suffered only 20% disability, which could be attributable to or aggravated by

the military service and accordingly, the petitioner was awarded War Injury

Pension w.e.f. 01.03.1997 to 28.01.2002 at the rate of 20%.

4. In an earlier round of litigation, the petitioner filed SWP bearing No.

644/98, challenging the finding of the Release Medical Board, which had

slashed the disability from 70% to 20%. The above petition came to be

decided by virtue of judgment and order dated 05.03.2001 in which, the

prayer of the petitioner that his disability should be assessed at 50% was

accepted and a direction was issued that the pensionary claims of the

petitioner would be settled by taking his disability at 50%.

5. Persuant to the decision by the Writ Court in SWP No. 644/98, the

Government of India / Ministry of Defence, vide communication dated

20.08.2001 directed payment of disability pension in favour of the petitioner

at the rate of 70% instead of 20% w.e.f. 01.03.1997 onward. The

communication also envisaged that the petitioner would be subjected to

Resurvey Medical Board to assess the percentage of disability. The said

communication also reiterated that the disabilities have been accepted as

either attributable to or aggravated by military service.

6. It appears that the petitioner was subjected to re-assessment of

the disability by a Resurvey Medical Board on 04.12.2002, which determined

the disability of the petitioner at 30% and the benefit of War Injury Pension

was granted to the petitioner w.e.f. 28.01.2002 to 03.12.2004.

7. Aggrieved of the findings recorded, the petitioner filed a Writ

Petition bearing No. 1216/2003 challenging the order dated 04.02.2003

issued by the Director General of Medical Services (Army), New Delhi as also

order dated 05.05.2003 by virtue of which, respondent No. 2, Principal

Controller of Defence Accounts accepted the disability of the petitioner at

30% for the period 04.12.2002 to 03.12.2004, in place of the accepted

disability at 70%.

8. The Writ Court by virtue of judgment and order impugned has

allowed the writ petition and held the petitioner entitled to War Injury

Pension to be calculated at the rate of 70% disability and consequently,

quashed the impugned order passed by Principal Controller of Defence

Accounts, whereby, the disability was reduced to 30%. The Writ Court was of

the opinion that the Medical Board having categorised the disabilities suffered

by the petitioner as permanent, have to be treated as permanent for all times

to come and could not have to be restricted for a period of two years as was

done by the appellants-respondents. The opinion expressed is that only

temporary injuries could be considered for re-assessment for particular

periods. Being aggrieved of the judgment and order impugned dated

14.11.2008, the Union of India is in an appeal before this Court.

9. The argument advanced by the learned ASGI is that the learned

Single Judge committed an error in law in holding that the disability and the

injuries suffered by the petitioner were permanent in character, ignoring the

Medical Service Board's report dated 29.01.1997, which restricted the period

of disability only for a period of two years. It is stated that there was a

particular reason for limiting the disabilities for a period of two years, in as

much as, while the injuries may be permanent, the disability percentage may

vary from time to time. It was urged that since the disability percentage

could vary over a period of time, it became incumbent upon the authorities to

subject the petitioner to a Medical Board repeatedly with a view to assess the

disability percentage from time to time and therefore, in that background,

learned ASGI vehemently urged that the view expressed, was legally

untenable.

10. The issue that falls for our consideration today is whether a

disability which is categorised as permanent in character and is attributable

to and aggravated by military service can, at all be, reviewed periodically

from time to time and the percentage of disability varied every couple of

years. Learned counsel for the petitioner has placed reliance upon an Office

Memorandum dated 07.02.2001 to suggest that there cannot be any

periodical reviews by the Resurvey Medical Boards for re-assessment of

disabilities. What is stated in the office memorandum in clause 7 is

reproduced as under for facility of reference: -

7. Reassessment of Disability: - There will be no periodical reviews by the Resurvey Medical Boards for reassessment of disabilities. In cases of disability adjudicated as being of a permanent nature, the decision once arrived at will be final and for life unless the individual himself requests for a review. In cases of disabilities which are not of a permanent nature, there will be only one review of the percentage by a Re- assessment Medical Board to be carried out later within a specified time frame. The percentage of Disability assessed/ recommended by the Re-assessment Medical Board will be final and for life unless the individual himself asks for a review. The review will be carried out by Review Medical Board constituted by DGAFMS. The percentage of disability assessed by the Review Medical Board will be final.

11. Clause 10 of the aforementioned office memorandum further

envisages that the assessment made by the Re-assessment Medical Board

held on or after the issuance of the said office memorandum could be

considered as final and for life, unless the individual himself asked for a

review. It thus appears that even as per the understanding of the Union of

India, an injury once categorised as permanent, has to be held for all times

to come and no periodic Resurvey Medical Board are permissible at all, unless

the officer concerned himself seeks such a Review Medical Board and Re-

assessment of his disability.

12. In our opinion, the period of two years reflected in the report of the

Resurvey Medical Board is inconsequential in the light of the spirit of the

office memorandum, which categorically envisages that the injuries or

disabilities held to be permanent in character cannot be subject to a review at

all. In our opinion, the petitioner could not have been subjected to a Review

Medical Board every now and then which would be in gross violation of even

the instructions which have been issued by none less than the Union of India

/ Ministry of Defence.

13. Be that as it may, in our opinion, we do not find it a fit case for

interference with the judgment and order impugned passed by the Writ

Court. The appeal is found lacking in merit and is, accordingly, dismissed.

                        (Mohan Lal)               (Dhiraj Singh Thakur)
                          Judge                            Judge
Jammu
28.12.2021
Vishal

                               Whether the order is speaking?        Yes/No
                               Whether the order is reportable?      Yes/No