Disability Pension Granted by Delhi High Court

The important judgment on disability pension 

 

 IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : SERVICE

W.P. (C) No.3699/2004

Judgment delivered on : July 27, 2006

Ex.Cfn Sugna Ram Ranoliya .... Petitioner

Versus

Union of India and Ors. .... Respondents

 

HON'BLE MR. JUSTICE SWATANTER KUMAR

HON'BLE MR. JUSTICE G.S. SISTANI

SWATANTER KUMAR, J.

1. On 28.6.91 the petitioner was enrolled as a member of the Indian Army as Tele

Communication Mechanic (Radio) in Corps of EME. Before his induction into Army, the

petitioner was put to rigorous selection process involving physical tests, written tests and

medical examination. He was found physically and mentally fit in all respects and was

placed in medical category AYE which means completely fit. The petitioner underwent

strenuous training at EME Centre, Secunderabad for a period of more than three years.

During the course of training and at the end of the training in the year 1994, the petitioner

was again subjected to medical examination and was always found medically fit and

placed in medical category AYE. Thereafter, he was posted to 196 (Indep) Field

Workshop Company which was located at Joshimath which is situated at a height of

approximately 6400 ft. and being surrounded by high snow hills. The weather there was

extremely cold . The petitioner developed some physical problems due to extreme cold

climate and arduous working conditions. He was brought to Military Hospital, Bareilly

where he remained under treatment and was placed in low medical category CEE

(temporary) for six months. Classified specialist Lt.Col.S.Chaudhary in Psychiatry

expressed his opinion as ?No feature of psychosis. He has responded satisfactorily to

treatment.....?. The Medical Board had specifically mentioned in its report that petitioner

at that time was unfit for high altitude area posting or posting at extreme cold regions. Despite these specific directions of the Medical Board, the petitioner was again sent to

the same unit where he remained for a further period of ten months. Instead of showing

improvement the condition of the petitioner worsened.

2. The petitioner was again subjected to Medical Board on 6.10.95 and on repeated

recommendation of the Board, the petitioner was transferred to 604 EME Battalion at

Allahabad in March, 1996. He was posted to 288 Armed Workshop Company located in

field area in Rajasthan. In August, 1999 the petitioner was admitted to MH Bikanair for

review but soon after he was transferred to Base Hospital Delhi Cantt. where he was

downgraded from Medical category BEE to EEE (Permanent). This happened despite the

fact that the condition of the petitioner stabilized during the posting in the peace area

where weather conditions and working conditions were not so strenuous. Due to exposure

to extreme climate coupled with arduous nature of duties that he had to perform, the

disease was aggravated within a short span of 5-6 months as a result of which, he was

permanently downgraded to category EEE (permanent). In terms of Army order 146/77

the petitioner was in BEE medical category and was fit to perform his duties with certain

restrictions but the respondents arbitrarily downgraded the medical category to EEE and

he was invalided out from Army service on 9.11.99.

3. It is the specifically pleaded case of the petitioner that in the afore narrated facts

the disease of the petitioner was attributable to and in any case aggravated by military

service, as such the petitioner was entitled to disability pension. The Invalidated Medical

Board had determined the disability of the petitioner at 40% but the same was said to be

neither attributable to nor aggravated by military service and as such the claim of the

petitioner which was forwarded to PCDA (P) vide their letter dated 5.5.2000 was rejected

on 30.11.2000. Against the order of rejection the petitioner had preferred an appeal

before the Ministry of Defence, Government of India through EME records on 14.2.01

which was kept pending for a considerable time despite various reminders having been

issued by the petitioner. This attitude of the respondents compelled the petitioner to file a

writ petition before this Court which he filed on 4.3.02 being CWP No. 1540/2002 which

was also allowed in terms of the order of the High Court passed in the case of

Ex.Ct.Jasbir Singh vs.Union of India and Others. Vide letter dated 18.5.03 the petitioner

again requested the respondents to comply with the orders of the Court and to release the

disability pension in favour of the petitioner, however, vide letter dated 5.2.04 the

respondents still rejected the claim of the petitioner saying that the petitioner was not

entitled to the grant of disability pension. Compelled by these circumstances, the

petitioner filed a contempt petition being CCP No. 108/2004 for disobeying the orders of

the Court dated 6.3.03 but the same was disposed of permitting the petitioner to challenge

the impugned order dated 5.2.04 by filing a substantive writ petition. This is how the

present writ petition has been filed by the petitioner questioning the correctness of the

order dated 5.2.04 passed by the respondents as well as bringing out the conduct of the

respondents which is stated to be arbitrary and unfair.

4. This writ petition was filed and came up for hearing before the Court for the first

time on 15.3.04 but till date no counter affidavit has been filed on behalf of the respondents. We have directed the respondents to produce the original records which

were produced and perused by us during the course of hearing.

5. The facts of the case are really not in controversy including the fact that the

petitioner was subjected to regular medical check ups. The main and probably only

submission of the respondents based on the records produced before the Court is that the

petitioner is not entitled to grant of disability pension as the disease Psychoneurosis was

neither attributable to nor aggravated by military service though the disability of the

petitioner was stated to be 40%. On behalf of the petitioner, while referring to various

judgments of the Courts, it is contended that the disease of the petitioner is attributable to

and aggravated by military service particularly in the facts and circumstances that the

petitioner was physically and mentally fit at the time of joining military service. The

recommendation of the Medical Board in Form AFMSF-16 is a mechanical exercise of

power. It neither provides any data or investigations nor it takes into consideration the

opinion of the specified specialist (psychiatry). On the contrary, it is a mechanical

exercise which ex-facie is arbitrary and without any basis.

6. We would proceed to refer and examine the effect of various pronouncements, the

relevant rules and regulations to elucidate the effect and implications of the expression

?Attributable to and aggravated by military service? first and then would revert to the

facts of the present case.

7. In the case of Jarnail Singh vs. Union of India and Ors. (1997)2 PLR 580 where

the Court referred and decided the ambit and scope of expression ?Attributable to and

aggravated by military service? appearing in Para 173 of Pensions and Regulations for

Army, 1961 and after discussing the law, held as under:- ?The provisions of law which

have a bearing on the matter in issue in this writ petition are Paras 173 and 175 of the

Pension Regulation for the Army, 1961, Rule 2 of Appendix II and Para 13 of

Entitlement Rules to Casualty Pensionary Awards to the Armed Forces Personnel, 1982.

It will be appropriate to reproduce these provisions for proper appreciation of the

contentions raised by respective parties :- ?173. Unless otherwise specifically provided a

disability pension consisting of service element and disability element may be granted to

an individual who is invalided out of service on account of a disability which is

attributable to or aggravated by military service in non-battle casualty and is assessed at

20 per cent or over. The question whether a disability is attributable to or aggravated by

military service shall be determined under the rule in Appendix II.? ?175. If the disability

of an individual is wholly or partly due to his serious negligence or misconduct, the

amount of disability pension otherwise admissible may be reduced at the discretion of the

competent authority.? ?Rule 2 in Appendix II reads as follows:- ?Disablement or death

shall be accepted as due to military service provided it is certified that :-

(i)is attributable to military service; or

(ii) existed before or arose during military service and has been and remains aggravated

thereby. XX XX? Para 13 of Entitlement Rules to Casualty Pensionary Awards to the Armed Forces

Personnel 1982 reads as follows:- ?

13. In respect of accidents or injuries, the following rules shall be observed:-

(a) Injuries sustained when the man is 'on duty' so defined shall be deemed to have

resulted from military service, but in cases of injuries due to serious negligence/misconduct

the question of reducing the disability pension will be considered.

(b) In cases of self-inflicted injuries whilst on duty, attributability shall not be conceded

unless it is established that service factors were responsible for such action, in cases

where attributability is conceded, the question of grant of disability pension at full or at

reduced rate will be considered.?

Firstly we have to consider, whether the period of casual leave of a person subject to

Army Act can be termed as period on duty or not? Secondly, whether every injury

suffered by such person during the period of his casual leave arising from any kind of act,

omission or commission, would necessarily be attributable to or aggravated by military

service or not?

With regard to first question there could be hardly any controversy as the matter has been

well settled by various pronouncements of the Hon'ble Supreme Court of India as well as

of this Court. In the case of Smt. Charanjit Kaur v. Union of India and others JT 1994(1)

S.C. 131 where the husband of the petitioner who was commissioned as a Lieutenant in

the Indian Army and was subsequently promoted as Major, had died in mysterious

circumstances, the Court while awarding compensation and treating him on duty held as

under:- ?In the aforesaid facts, the conclusion is, therefore, inescapable that the officer

died while in service in mysterious circumstances and his death is attributable to and

aggravated by the military service. The responsibility of his death is prima facie traceable

to the action of criminal omissions and commissions on the part of the concerned

authorities. The petitioner is, therefore, entitled to suitable compensation as well as to the

Special Family Pension and the Children Allowance according to the relevant Rules.?

The Division Bench of this Court in the case of Shri Krishan Dahiya v. Union of India

and another, 1996(4) All Instant Judgments 506, where Hawaldar in the Army Medical

Corps suffered an injury while on casual leave and he was travelling by private vehicle,

was treated to be on duty, after detailed discussion the Court held as under:- ?It is not

disputed on behalf of the respondents that an officer, subject to the Army Act, while he is

on casual leave is considered to be on duty. Moreover, in view of the judgment of the

Apex Court in Joginder Singh v. Union of India, 1996(2) S.L.R. 149, and a Division

Bench judgment of this Court in Chatroo Ram v. Secretary Defence and others, 1991(1)

S.L.R. 678, it cannot be even disputed that an officer subject to the Army Act while on

casual leave is to be treated on duty.?

If a person subject to Army Act is considered to be on duty while on casual leave, it

would not make any difference whether he travels from duty station to leave station on his own expense or public expense as that cannot be the sine qua non for determining

whether the person is on duty or not. He referred to a judgment of the Delhi High Court

reported as Harbans Singh vs. Union of India through Secretary, Ministry of Defence,

New Delhi, A.I.R. 1971 Delhi 227, wherein the officer in that case was to travel from

Walong in N.E.F.A., his duty station, to Patiala, his leave station. He had travelled from

Walong to Johart and from Johart to Calcutta by air at public expenses. From Calcutta to

Ambala Cantt., he travelled on form D and from there, he travelled on road by his own

scooter to his leave station Patiala. It was while travelling on scooter from Ambala to

Patiala that he met with an accident which resulted in his disability. The High Court held

that though he was travelling at his own expense and by his own conveyance during the

part of his journey from Patiala to Rajpura, he was still to be treated to be on duty and

entitled to disability pension.?

Can it be said that he is not on duty because he was not travelling at public expense. To

our mind the answer has to be that still he would be entitled to be treated as on duty.?

Still in another case of Ex.GNR Gaj Raj vs. Union of India. 1996(4) R.S.J.517, the Court

took the same view and held that the member of armed force while on casual leave can be

considered on duty for the purpose of pensionary benefits and in that case held that it is to

be attributable to military service. Similar view was expressed by Division Bench of this

Court in CWP 2535 of 1995, P.V.Suvaranan v.Union of India and others decided on

11.9.1995 and held as under :- ?Further the petitioner was going to the Railway Station at

the time of accident for the purpose of purchasing return journey ticket to join duty.

Therefore, it cannot be said that the petitioner was not on duty at the time when he met

with an accident. We are, therefore, of the opinion that the petitioner was on duty and the

injury sustained by him in the course of accident was attributable to military service.?

Hon'ble Supreme Court of India in a very recent case of Joginder Singh v. Union of India

and others, 1996(2) S.L.R. 149 wherein the petitioner who was proceeding on casual

leave from his duty station met with an accident while boarding the bus at the railway

station, held as under:- ?The question for our consideration is whether the appellant is

entitled to the disability pension. We agree with the contention of Mr.B.Kanta Rao,

learned counsel for the appellant that the appellant being in regular Army there is no

reason why he should not be treated as on duty when he was on casual leave. No Army

Regulation or Rule has been brought to our notice to show that the appellant is not

entitled to disability pension. It is rather not disputed that an Army personnel on casual

leave is treated to be on duty. We see no justification whatsoever in denying the disability

pension to the appellant.? Thus from the consistent view taken by various Courts

including the Hon'ble Apex Court, it appears to us that the first question has to be

answered against the respondents as it is really no longer res-integra and has been fairly

and elaborately answered in the above pronouncements. Therefore, we have no hesitation

in holding that a person subject to the provisions of the Army Act, even if proceeds on

casual leave, would be treated on duty and would be entitled to the benefits accruing

therefrom in accordance with law. Necessary corollary to our afore-mentioned conclusion

is the second question posed by us above. Whether every injury suffered by a member of

the Armed Forces irrespective of its nature and origin can be termed ?attributable to or

aggravated by military service.? In order to consider this basic question one has to refer

and read the above stated provisions objectively while not losing the sight of their purpose and object. Certainly regulations 173 and 175 indicate the legislative intention

towards a liberal construction of these provisions. The above regulations and the

provisions read in their correct perspective certainly imply that rule making authority

intended to give very wider scope to the concept of payment of disability pension. Para

173 afore-mentioned is the substantive enabling provision which provides for grant of

disability pension to a member of the force subject to the condition of disability being

more than 20 percent and is attributable to or aggravated by military service. Para 175

must be read in conjunction with para 173 which is the principle regulation controlling

the subject. The scheme of these regulations shows that para 175 is in aid to para 173 and

does not frustrate the basic ingredients of para 173. The case for claim of disability

pension must satisfy the ingredients stated in para 173. It is then alone that par 175 would

become operative. Para 175 only elaborates the application of para 173 by providing that

even negligence or misconduct on the part of a member of the armed forces may not

frustrate the claim by such person under Rule 173. Upon the harmonious construction of

these two provisions meaningful interpretation would be that the remote nexus to the

attributability and aggravation of disability by military service even if accompanied by

the element of negligence or misconduct on the part of the member of the force would not

by itself frustrate the right of the member to raise such a claim. However, the authority in

discretion may apply, cut or reduce the amount of disability pension within the limited

scope of para 175. Clause 9 of Appendix II even does not place onus on the claimant to

prove the condition of entitlement and any benefit of reasonable doubt would accrue in

favour of the applicant and not against him. The member of the armed force being on

duty would have to satisfy only concept of attributability as explained above, but no strict

proof has to be established. Merely some remote nexus to the military service would be

sufficient to sustain such a claim. The afore- mentioned provisions certainly indicate that

liberal construction has to be afforded to this expression, but equally important is that

such liberal construction should be in consonance with the object and purpose sought to

be achieved by these provisions. We are of considered view that the injury suffered by a

member of the armed force must be directly or indirectly attributable to or aggravated by

military service. May be remotely but it must find its origin from the nature and scope of

the duties and discipline of the force. Obviously, a person on casual leave would not be

performing his normal duties but the event which results in infliction of injury to the

member of the force must be ancillary to the recognised sphere of military duty and

discipline. The injury causing disability, therefore, must springs from such event or

circumstance which falls within expected standard of functioning of disciplined members

of the armed forces. The expression attributable to military service has to be understood

in its wide spectrum, but this understanding must find its limit within the principle of

prudence and reasonableness. If the injury suffered by the member of the armed force is

the result of an act alien to the sphere of military service or in no way be connected to his

being on duty as understood in the above sense, it would not be legislative intention nor

to our mind would be permissible approach to generalise the statement that every injury

suffered during such period would necessarily be attributable to or aggravated by military

service. The expression ?attribute? means to ascribe, assign, consider as belonging that

which is inherent in or inseparable from (The Chamber Dictionery 1994 Edition).

Attributability means attribution to its principle source. It may not be possible to

precisely define the expression 'attributable' which could apply as a matter of principle to the cases of the present kind. But this expression has now been well understood and

explained in various pronouncements even in English Law. It may be appropriate to refer

to the meaning described in the Butterwords ?Words and Phrases Legally Defined,

Volume 1: A-C which is as follows:- ? These words have been considered in a number of

cases and I do not wish to add to the explanations and definitions which have been given.

Counsel for Mr.Walsh submits that it is a wider concept than ?directly caused by?, or

?caused by or resulting from?, but he accepts that it involves some nexus between the

effect and the alleged cause. He suggest that ?owing to? or ?a material contributory

cause? or ?a material cause in some way contributing to the effect? may be synonymous.

Lord Reid in Central Co.v. Dodd (1972) 2 ALL ER 1135, said: ?............

?attributable?. That means capable of being attributed. 'Attribute' has a number of

cognate meanings; you can attribute a quality to a person or thing, you can attribute a

product to a source or author, you can attribute an effect to a cause. The essential element

is connection of some kind. ?Suffice it to say that these are plain English words involving

some casual connection between the loss of employment and that to which the loss is said

to be attributable. However, this connection need not be that of a sole, dominant, direct or

proximate cause and effect. A contributory casual connection is quite sufficient. Walsh

vs. Rother District Council (1978) I ER 510 at 514, per Donaldson J.? The act, omission

or commission which results in injury to the member of the force and consequential

disability must relate to military service in some manner or the other. In other words, the

act must flow as a matter of necessity from military service. As noticed in the aforesaid

case a member of the force who proceeds on casual leave or returns from casual leave or

while on casual leave goes to get a ticket or warrant for his return etc. suffers an injury

which ultimately results in invalidating out from Army, of the member of the force, that

could be termed as an injury or disability attributable to military service. While on the

other hand a person who may be doing some act at home which even remotely does not

fall within the scope of his duties or functions as a member of the force nor is remotely

connected with the function of the military service and expected standard and way of

living of such member of the force cannot be termed as an injury or disability attributable

to military service. For example a person who gets drunk while on casual leave fights

with his neighbours, inflict injuries or suffer injuries, resulting in some disability to him

as a result of which he is invalided out of Army with some extent of disability, to our

mind cannot be said to be a disability attributable to or aggravated by military

service.Aggravation of a disease in the provisions of Section 29 of the Compensation

(Commonwealth Government Employees) Act, 1971 has been explained in the case of

Commonwealth vs. Johnston (1980) 31 AIR 445 in the following manner:- ?Although it

may be possible to attribute a meaning of growing worse to the term ?aggravation? in the

abstract, it is not possible to construe aggravation of a disease in s.29 as meaning a

growing worse of a disease to which nothing but the natural progress of the disease has

contributed. Something else must contribute an increased gravity to the employee's

disease, a gravity over and beyond what the natural progress of the disease produces.?

The expression ?attributable to or aggravated by military service? must be read ejus dem

generis with rule 2 in Appendix II and opening line of regulation 173. It must be read in

conjunction with the scheme of these provisions and has to be given purposeful meaning.

To understand this phrase better it may be appropriate to make reference to the phrase

?arising out of and in the course of his employment.? This expression occurs in the provisions of the Employee State Insurance Act, 1948. The Supreme Court in the case of

Regional Director, ESI Corporation and another v. Francis De Costa and another, (1996)

6 SCC 1 observed as under:- ?The injury suffered by the respondent in the instant case

did not arise in any way out of his employment. Unless it can be said that his employment

begin as soon as he set out for the factory from his home, it cannot be said that the injury

was caused by an accident ?arising out of ......... his employment.? A road accident may

happen anywhere at any time. But such accident cannot be said to have arisen out of

employment, unless it can be shown that the employee was doing something incidental to

his employment. By Using the words ?arising out of... .. his employment, the legislature

gave a restrictive meaning to ?employment injury?. The injury must be of such an extent

as can be attributed to an accident or an occupational disease arising out of his

employment. ?Out of?, in this context, must meancaused by employment.? ?In order to

succeed, it has to be proved by the employee that (1) there was an accident, (2) the

accident had a casual connection with the employment, and (3) the accident was suffered

in the course of employment. In the instant case the employee was unable to prove that

the accident had any casual connection with the work he was going at the factory and in

any event, it was not suffered in the course of employment.?

The injury or disability must be incidental to military service. The Hon'ble Supreme

Court in the case of Union of India and Another vs. Baljit Singh, 1997(1) S.L.R. 98 while

declining to interfere with the judgment of the High Court held as under :- ?

In each case, when a disability pension is sought for and made a claim, it must be

affirmatively established, as a fact, as to whether the injury sustained was due to military

service or was aggravated which contributed to invalidation for the military service.

Accordingly, we are of the view that the High Court was not totally correct in reaching

that conclusion. However, having regard to the facts and circumstances of this case, we

do not think that it is an appropriate case for interference.?'

On proper analysis of the above discussion the position that emerges is that an accident or

injury suffered by a member of the armed forces must have some casual connection to the

aggravation or attributability to military service and at least should arise from such

activity of the member of the force as he is expected to maintain or do in his day-to-day

life as a member of the force. The nexus between the two is not apparently one so as to

cover every injury or accident. The hazards of Army service cannot be stretched to the

Extent of unlawful and entirely unconnected acts or omissions on the part of the member

of the force even when he is on leave. The fine line of distinction has to be drawn

between the matters connected, aggravated or attributable to military service and the

matters entirely alien to such service. What falls ex- facie in the domain of an entirely

private act which may even extend to the sphere of undesirable and unlawful activity of

such member, cannot be treated as legitimate basis for claiming the relief under these

provisions. At last  the member of the force can claim disability pension if he suffers

disability from an injury while on casual leave even if it arises from some negligence or

mis- conduct on the part of the member of the force, so far it has some connection and

nexus to the nature of duty and expected standard of living from such member of the

force. At least remote attributabilitiy to service and expected standards of behavior and living, of the member of the force appears to be the condition precedent to claim under

Rule 173. The act of omission and commission on the part of the member of the force

must satisfy the test of prudence, reasonableness and expected standards of behavior. We

may elucidate the above principle by giving a very simple example that if a person on

casual leave and subject to this act goes to canteen to buy things or takes his children for

treatment to hospital and on the way meets with an accident, may be arising out of his

negligence or contributory negligence, suffers injuries causing permanent disability, in

our view, would be entitled to claim the benefit under Rule 173. Similarly a person who

joins army is not found to be suffering from any disease, but subsequently suffers from a

disease which renders him liable for being invalidated out of army on such ill- health,

such a disease would be attributable and/or aggravated by military service and would

entitle him to take benefit of these regulations.?

8. In the case of Jagmel Singh, Ex.Sep. vs. Union of India and Ors. (2000) 2 PLR

646, the Court also discussed the impact of Instruction No. 27 issued by the respondents

relating to functions and responsibilities of the medical authorities and held as under :-

?Learned counsel appearing for the Union of India contended that the disability pension

could be denied to the petitioner by CCDA (P), if found the disability to be less than

20%. He relied upon paras 17 and 27-C of the Revised Entitlement Rules, 1982 to

contend that CCDA(P) was competent authority to do so. I have already noticed that the

facts in the present case are hardly in issue and as far as the question of law is concerned

that stood answered by the Division Bench of this Court in the case of Amar Nath v.

Union of India and others. (1998-1) 1 18 P.L.R. 847, where the Court, after discussing

the law in detail, held as under :- ?Once this certificate was issued in favour of the

appellant entitling him to receive the disability pension, this benefit could not have been

withdrawn by the Controller of Defence Accounts (P), Allahabad on his own without

holding appellate medical board in accordance with law. Exhibit D.3 while rejecting the

claim of the appellant referred to period of 10 years previous of 25.6.1988 and disability

being less than 20%. This was never put to the appellant prior to the passing of the order.

If the appellant was entitled to the benefit in accordance with the rules on the strength of

the disability certificate. Ex.P.1 the appellant could not be divested of the same without

following due process of law and after giving proper opportunity tot he appellant which

admittedly has not been done in the present case. The corollary to this main issue is as to

whether the Controller of Defence Accounts (P), Allahabad at all was justified in

assuming the jurisdiction which is not vested in it under the rules. Under the relevant

rules and instructions, the respondents have the authority to constitute an Appellate Board

and disturb the findings arrived at by the first medical board which again was not done. It

would not be permissible to disturb the findings without taking recourse to the relevant

rules and instructions governing the subject. In this regard, reference can be made to the

judgment of a Division Bench of this Court rendered in C.W.P. No. 17688 of 1996 ExSepoy,

Ujagar Singh v. Union of India and others, decided on 9.10.1997 : 1997 (4) R.S.T.

587 where this Court in somewhat similar circumstances, after discussing in detail the

matter governing the subject held as under :- ?We ar e 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 and comment upon the extent of disability 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.?

Somewhat similar defence was raised on behalf of the Union of India before the Hon'ble

Apex Court in the case of Ex-Sepoy Mohinder Singh v. Union of India, Civil Appeal No.

164 of 1993 decided on 14th January, 1993, where the Court held as under :- ?We have

examined the relevant materials and we do n t feel satisfied with the plea taken in the

counter affidavit. No detail of the consultation has been disclosed by the respondent nor it

is claimed that the appellant has been re-examined by any higher medical authority. We

are not prepared to sit on the vague allegations in the counter affidavit referred to above.

In view of all the relevant circumstances of the case we are of the opinion that the

Disability Pension assessed at the rate of 40% by the Medical Board which had examined

the appellant, should be respected until fresh Medical Board examined the appellant gain

and reached different conclusion.? An identical stand was taken by the Union of India in

the case of Mam Raj v. Union of India, C.W.P No. 2302 of 1997 decided on 10.9.1997 by

this Court where this Court held as under :- ?Instruction No.27 under the head of

?functions and responsibilities? Of Appendix-II of these instructions at full empowers

the Medical Authority so constituted to give its view about assessment of disablement

restricted to the medical issues. The Medical Board(s) views and findings could be

subjected to an appellate view by the Director General, Armed Forces Medical Services

whose view would be final. Nothing has been brought on record before us which would

show that subsequent to the Medical Board, as a result of which the petitioner was

discharged from Army, was held by the competent authority and that gave any findings

contrary to the view expressed by the earlier Medical Board.? Reference can also be

made to the decision rendered in L.P.A. No. 82 of 1997 titled as Union of India and

others vs. Ex.Captain Harbhajan Singh, decided on 25.4.1997. In the present writ

petition, no details have stated in the counter affidavit filed on behalf of the Union of

India nor any documents has been produced before us which could satisfy the above

enunciated principles. It has also been held that pension and likewise the disability

pension is recurring cause of action and mere delay will not frustrate the claim of the

petitioner.? Learned counsel for the appellant has also relied upon the case if Ram Singh

Jaggi v. Union of India and others. 1995 (4) R.S.J. 807, where a Division Bench of the

Himachal Pradesh High Court took the same view. From the above settled principles of

law, I have not hesitation in coming to the conclusion that the learned Courts below have

fallen in error in coming to the conclusion that the Controller of Defence Accounts (P)

Allahabad can disturb the findings of the medical board in the present manner.

Admittedly, no evidence has been brought on record much less an expert evidence

recorded by the medical offer to show that the finding recorded by the medical board

were incorrect factually or otherwise.?

9. There are certain provisions or instructions which have not been specifically

discussed by the Court in the above cited cases but at the same time they have a bearing

on the matter in issue before us. The obligation on the member of a force as well as upon

the various authorities in the hierarchy of medical core are well explained in these

regulations or in instructions. In fact, the regulations deal with the health of a soldier

from the stage when he is declared fit to be enrolled in the Indian Army till the time he

superannuates or is invalided for medical reasons whichever be the case. Regulation 173 of the Pension Regulations gives entitlement to a member to claim disability pension

subject to satisfaction of the conditions mentioned therein. Appendix-II to regulations 48,

173 and 185 states the conditions of entitlement under the head ?Entitlement Rules for

Casualty Pensionary Awards, 1982?. Rule 12 of 1982 Rules states that a person subject to

disciplinary code of the Armed Forces is on ?duty? :-

(a) When performing an official task or a task, failure to do which would constitute an

offence triable under the disciplinary code applicable to him.

(b) When moving from one place of duty to another place of duty irrespective of the

mode of movement.

(c ) During the period of participation in recreation and other unit activities organised or

permitted by Service Authorities and during the period of travelling in a body or singly

by a prescribed or organised route. (see judgments in the book also)

NOTE: 1

(a) Personnel of the Armed Forces participating in

(i)local/national/International sports tournaments as member of service teams, or

(ii)mountaineering expeditions/gliding organised by service authorities, with the approval

of Service Hqrs., will be deemed to be ?on duty? for purposes of these rules.

(b) Personnel of the Armed Forces participating in the above named sports tournaments

or in privately organised mountaineering expeditions or indulging in gliding as a hobby

in their individual capacity, will not be deemed to be 'on duty' for purposes of these rules,

even though prior permission of the competent service authorities may have been

obtained by them.

(c ) Injuries sustained by the personnel of the Armed Forces in impromptu games and

sports outside parade hours, which are organised by, or with the approval of, the local

service authority, and death or disability arising from such injuries, will continue to be

regarded as having occurred while 'on duty' for purposes of these rules.

NOTE: 2

The personnel of the Armed Forces deputed for training at courses conducted by the

Himalayan Mountaineering Institute, darjeeling shall be treated on par with personnel

attending other authorised professional courses or exercises for the Defence Services for

the purpose of the grant of disability/family pension on account of disability/death

sustained during the courses.

(d) When proceeding from his leave station or returning to duty from his leave station,

provided entitled to travel at public expenses i.e. on railway warrants, on concessional voucher, on cash TA (irrespective of whether railway warrant/cash TA is admitted for the

whole journey or for a portion only), in government transport or when road mileage is

paid/payable for the journey.

(e) When journeying by a reasonable route from one's quarter to and back from the

appointed place of duty, under organised arrangements or by a private conveyance when

a person is entitled to use service transport but that transport is not available.

(f) An accident which occurs when a man is not strictly on duty as defined may also be

attributable to service provided that it involved risk which was definitely enhanced in

kind or degree by the nature, conditions, obligations or incidents of his service and that

the same was not a risk common to human existence in modem conditions in India. Thus

for instance, where a person; is killed or injured by another party by reason of belonging

to the Armed Forces, he shall be deemed 'on duty' at the relevant time. This benefit will

be given more liberally to the claimant in cases occurring on active service as defined

in the Army/Navy/Air Force Act.

10. Rule 13 relates to accidents or injuries which are suffered when the man is ?on

duty? as defined and shall be deemed to have resulted from military service. However,

Rule 14 deals with diseases and states that cases in which it is established that conditions

of military service did not determine or contribute to the onset of the disease but

influenced the subsequent courses of the disease will fall for acceptance on the basis of

aggravation. Sub-Rule 3 of the same Rule clearly indicates that a disease which has led to

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 the individual's acceptance for military service. Clause (c) of Rule 14

state that if a disease is accepted as having arisen in service, it must also be established

that the conditions of military service determined or contributed to the onset of the

disease and that the conditions were due to the circumstances of duty in military service.

11. Under Regulation 135 of the Defence Service Regulations for Army Volume 1, it

is obligatory on the part of the authorities that all recruits will prior to enrollment or

engagement, subjected to a medical examination in the prescribed manner. Whenever a

Recruiting Medical Officer is in doubt as to the nature of a disability, he may refer the

recruit to a Specialist for examination and opinion as to his suitability for enrollment in

the Army. This will be done only when the recruit is fit in all other respects, and a

reasonable doubt exists regarding the disability or the disabilities in question. Even under

Clause 8 of the Regulations for Medical Services of the Armed Forces, 1962 as amended

under Defence Service Regulations, the general duties of a Medical Officer is to assess

the physical fitness of the candidate for commissions in the Armed Forces, of recruits,

and of others, prior to entering the Armed Forces. It is thus obvious that person intending

to join Army has to undergo physical and medical tests adhering to the prescribed norms.

It is obligatory on the part of the authorities to properly examine an individual before

permitting him to be enrolled as a member of the Armed Forces and in the event there is a

doubt, the matter has to be referred to a Specialist to remove that doubt in regard to

physical fitness of an individual. The purpose of powers and obligations given to a Medical Officer and strict adherence to prescribed medical standards in case of

recruitment is to achieve undisputed object that no person suffering from any ailment is

inducted into Army.

12. After the individual suffers from any injury and/or disease and is required to be

invalided out of service as per same Regulation 421, a Medical Board will be arranged

and held at once. The Medical Board is required to expeditiously conclude and more

particularly in cases of Pulmonary Tuberculosis, Epilepsy, Amputation and Psychosis.

Regulation 422 further casts an obligation on the Medical Board to answer the various

questions i the prescribed form upon due application of mind while taking note of the

detailed directives contained in Regulations 422 and 423 in that regard. The Specialist's

report should be reproduced in the statement of the case. As per Regulation 422(d) the

Invaliding Medical Board is expected to make its own assessment, reasoning and

conclusions without being influenced by the proceedings of the previous Medical Boards.

This obviously indicates the intent of the rule making authority that the Invaliding

Medical Board has to discharge its functions and duties with clear independence and in a

manner which would be acceptable to the prescribed medical standards. Mere 'Yes' and

'No' may not serve the object of such intent. It is in the modern times where means of

investigations amply and possibly tend to touch perfection. Mere impression of doctors

would not serve the purpose and discharge the obligations placed upon the authorities

under these provisions. Under Regulation 423(a), the Board is expected to take into

consideration the evidence both direct and circumstantial. The authorities medical and

administrative are required to weigh the evidence while deciding the question of

attributability or aggravation. The opinion of the Medical Board under Clause 423(d)

DSR-Medical is final unless it is questioned before the Medical Board or is patently

perverse.

13. The cumulative effect of the above enunciated principles of law and various rules,

regulations and instructions is that the authorities are expected to act with great caution

while invaliding a person from military service. A person who has been inducted into

military service after rigorous medical examination and has been found consistently fit in

all respects, suddenly suffers from a sickness as a result of his sufficiently long service in

Army at different places of high altitude with difficult duties of the Army, it may not be

fair for the authorities to say that the disease is neither attributable to nor aggravated by

military service particularly in absence of any medical diagnosis or data being discussed

or placed on record. It would be unjust and unfair to permit writing of 'No' and/or 'Yes'

simplicitor, despite the medical records showing that the patient/Army personnel, was not

suffering from any disease earlier or the same was not organically attributable to his

constitution.

14. Once the Medical Board finds a disease as 'attributable to and aggravated by'

military service and his disability is more than 20% then it has to forward AFMSF-16 to

the pension authorities in terms of Rule 12 of the Pension Regulations. Regulation 12

requires communication of sanction to the Accounts Officer. The language of this

Regulation shows that the pension is sanctioned by the concerned authorities after

completion of the proceedings of Medical Board and then it is communicated for arranging its payment. Assumption by Accounts Officer of the pension authorities to sit

over the judgment of the Medical Board is apparently without jurisdiction and, in fact, is

impermissible under Regulation 423(d). In this regard reference can also be made to a

very recent Division Bench judgment of this Court in the case of JC 264149M Ex. Naib

Sub Marut Sharan Tiwari vs. Union of India and Ors. being CWP No. 23320/05 decided

on 13.7.06.

15. Various Benches of this Court as well as all other High Courts have taken the

view that the diseases like Schizophrenia, Neurosis and Epilepsy etc. are the diseases

which are normally attributable to and/or aggravated by Army Service unless there was

definite medical evidence on record to show that the onset of such diseases was prior to

the joining of Army and was constitutional in the sense that their cause was not known

and in all probable possibilities they could relate back to the period prior to the

enrollment of the individual in the Armed Forces. A Division Bench of this Court in the

case of Satpal Singh (Mr.) Vs. Union of India and Ors. 1999 IV AD (Delhi) 321 held as

under:- ?What sort of Schizophrenia from which the petitioner suffered has also not been

indicated by the Medical Board. Hallucination from which such patient suffers are of

three types namely; (i) Auditory, (ii) Visual or (iii) Somatosensory. Auditory

Schizophrenia occurs when a person imagines that somebody is talking against him.

Visual Schizophrenia is when he imagines something like seeking ghosts etc. Nothing

has been said by the respondent as to from which category of schizophrenia the petitioner

suffered. From whatever category of ?Schizophrenia? the petitioner suffered it would

have been apparent when he was medically examined in June, 1982 or at any time

thereafter. But none of the Medical Boards prior to October, 1990 declared that the

petitioner was suffering from ?Schizophrenia? or any mental disorder. Therefore, it

would not be correct on the part of respondent to say that petitioner suffered from

constitutional disorder. Constitutional disorder would have in some form or the other

must have manifested itself. But it did not till October, 1990. Therefore, the rejection on

the ground of constitutional disorder cannot be appreciated. Mr.S.M.Hooda's contention

has a force when he urged that in the year 1990 there was insurgency in the State of

Jammu and Kashmir. The petitioner being posted in the forward area of that State due to

anxiety might have suffered from ?Schizophrenia?. Since he had already suffered from

Neurosis earlier and being posted in the forward area anxiety got aggravated and became

a case of schizophrenic. For this argument of Mr.Hooda, counsel for the respondent had

no answer. He could not deny the fact that the petitioner was posted during the relevant

time in the forwarding area of the State of Jammu and Kashmir. He also could not

contradict the fact that it was while posted in the field area that the petitioner suffered

from Neurosis. Therefore, it cannot be ruled out that schizophrenia from which the

petitioner suffered was a consequence of Neurosis. As per respondent's own showing

petitioner developed psychiatric break down in June, 1990 when he started feeling of

sadness, fear from unknown, lack of concentration, loss of interest in work etc. He

showed depressive features while posted in the field area of the State of Jammu and

Kashmir. This ultimately led him to schizophrenic. Therefore, it wold not be correct to

say that the disease on account of which petitioner was invalided out of service was not

attributable to service nor aggravated because of his service. In fact the presumption

ought to have been drawn as per Sub-Rule (b) of Rule 7 by the respondent. On account of his service presumption can be drawn that the petitioner suffered from this disease on

account of his military service and it aggravated by military service. Instead of raising the

presumption as is required to be raised under sub-rule (b) of Rule 7, the Controller of

Defence Accounts rejected the disability pension without any reason and without

appreciating the facts of this case. Admittedly, the onset of the disease was during the

course of service. There was no reason for Controller of Defence Accounts not to accept

the recommendation of the Commanding Officer, which in this case was made to enable

the petitioner to get the disability pension. The Commanding Officer of the petitioner

sanctioned the disability pension w.e.f 6th July, 1991. Duly sanctioned case was

forwarded to the respondent No.2 i.e. Controller of Defence Accounts (Pension) Dropdi

Ghaat, Allahabad which was in consonance with the presumption which is to be raised

under Sub-Rule (b) of Rule 7, which the respondent No.2 failed to do without any

reason.?

16. Still in another case titled as Ex.Sub.Major Ram Kishan vs. UOI and Ors. being

CWP No. 2221/2005 decided on 14.3.06 where the petitioner was suffering from

Achalasia Cardia (Optd) and Essential Hypertension disease was invalided from military

service by the Medical Board, though the Court partially allowed the writ petition

directing the respondents to hold Review Medical Board for the petitioner but after

discussing the case law and relevant rules held as under:- ?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 whether 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, keeping 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 causal 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 likely to continue. The same is

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 its opinion/recommendation on the basis of the medical report,

injury report, court of enquiry proceedings, if any, charter of duties relating to peace or

field area and of course, the physical examination of the individual.

XXXXXXXXXXXXXX

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 for ascertaining as towhether 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 Ors. (supra). In that regard suffice is to

say that the ratio of the decision in Satpal Singh's case (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 AIR 2005 SC 4391.

In the said decision, the Supreme Court 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 (11) 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 negatived 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 decision of Shri Bhagwan (supra). In paragraphs 185, 186 and

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 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 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.?

17. The Madhya Pradesh High Court in the case of Sub-Lieutenant Chaman Azhar vs.

Union of India and Others (2003) 4 SLR 183 held in favour of the petitioner that

Psychiatric disorder was attributable or aggravated by military service. In this case the

Court held as under :- ?In Price's Text Book of the Practice of Medicine, learned author

Price has discussed the aetiology of ?Schizophrenia? as under:- ?The role of genetics is

undoubtedly important, but recent observations suggested that although genetic factors

may be necessary they are not always sufficient for the occurrence of schizophrenic

illness; environmental influences can also pay their part in the casual chain. Recent

mental stress may sometimes be the starting point of an attack, but in a considerable

proportion of these cases the reported overwork, disappointment in love or other painful

experience, is found to have been a product of the already existing illness, or the last of a

long series of disturbing events. No recent or remote experience is ever sufficient to

account for the illness without regard to intrinsic causes. No matter how searchingly the

patient's life be resurrected and analysed, it is scarcely ever possible to discover that

anything happened to him with which would have led to his adopting a schizophrenic

way of shunning daily life unless he had been somehow disposed to it from the

beginning; although, of course, much may have happened to him that has strengthened

and fostered the disposition.? In Text Book of Medicine by Rustom Jal Vakil disease

?Schizophrenia? has been discussed as under:- ?Aetiology; heredity is considered an

important factor in the aetiology of the disease. Specialist in genetics have discovered

significant difference in the incidence of the illness in monozygotic an dizygotic twins.

The nature of genetic transmission is however not clear. Individuals with asthenic builds,

 thin, tall and wiry frames and with a tendency to be shy, reserved and withdrawn are

particularly prone schizophrenia. The vast majority of individuals with such constitutions

are usually well adjusted, but if they prove incapable of standing up; to the stresses and

strains of life, they tend to develop a schizophrenic type of psychosis. A tendency to

withdraw from social and emotional contacts with people and an increasing tendency to

withdraw from one's environment are often present long before the actual onset of the

illness. Intensive biochemical studies have revealed numerous abnormalities, including

disturbances of protein carbohydrate metabolisms, enzyme reactions, abnormalities or

urine and cerebrospinal fluid and the presence of so-called serum toxins (teraxin). The

exact aetiological significance of such charges has however not been elucidated so far.

Some consider schizophrenia as an auto immune disorder. This too remains unproved.?

18. Similar view in regard to Schizophrenia was taken by the Punjab and Haryana

High Court in the case of Ram Niwas Goswami vs. Union of India (1999) 7 SLR 458.

19. In view of the above medical and legal explanations in regard to this disease, it is

quite possible that a person may suffer Schizophrenia or other Psychiatric diseases as a result of stress and strain, which an individual may be incapable of standing up to at a

given point of time. More than often it may not be contributable or result of a

constitutional disease or constitutional disorder. We have attempted to explain the

constitutional disorder/disease as is understood in medical terms or even in common

parlance. The need for a precise medical examination and clear remarks supported by

investigative or clinical data is the essence of a medical report which would have primacy

particularly in proceedings before the court. A valuable right in relation to grant of

pension of an individual is affected, thus, the authorities are expected to act with greater

caution while making recommendations and administrative authorities while granting or

declining such relief to the person.

20. In the case of Ex-Signalman Shri Bhagwan vs. Union of India and Ors. 103

(2003) DLT 269 (DB) the Court had discussed the law in detail with reference to various

provisions of the Army Act, Rules, Regulations etc. The proposition of Law stated

therein are not a matter of dispute before us. But we must notice that certain provisions,

instructions and judgments of different courts were not brought to the notice of the

Division Bench. We have to look into the stated principles, keeping in view the amended

Regulations as well as the various other judgments of this Court and other Courts, which

have been pronounced subsequent to the judgment. The Division Bench after detailed

discussion remanded the connected matters to the CDA (P)/ CCDA (P) Allahabad, to

reconsider them in light of the conclusions and directions given in the said judgment. The

primacy of medical opinion expressed by the Medical Board constituted in light of the

above principles can hardly be disputed. The respondents have heavily relied upon the

judgment of the Supreme Court in the case of Controller of Defence Accounts (Pension)

and others v. S.Balachandran Nair AIR 2005 SC 4391 to contend that the opinion of the

Medical Board is final and cannot be questioned before the Court. The principle of law

enunciated by the Supreme court in this case is not a matter of controversy and in any

case is binding on the Courts. Their Lordships have clearly indicated that the view

expressed by the Medical Board has primacy and would be respected by the Courts.

There can be no doubt to the proposition that for the opinion of the Medical Board to

attain its primacy as afore-referred, it must be in conformity with the statutory provisions

framed by the competent authorities. If a report is ex-facie not in conformity with the

various regulations, is not supported by any investigative or diagnostic evidence and is

arbitrary or ex-facie perverse then it cannot be permitted to have the same value as

indicated in the various judgments of the High Courts as well as the Supreme Court.

 

21. We have already discussed at great length that the rules and regulations postulate

proper application of mind by the Medical Board to arrive at conclusions which would be

supported by proper reason or documentation. It is so, primarily for the reason that a

member of the force could be invalided from service and there should exist a cause and

such cause must have nexus to his discharge in conformity with rules and regulations. It

is a settled principle of law that when rules require something to be done then that thing

must be done in that manner alone or not. Adherence to the provided procedure is

essential and the authorities cannot act contrary to a procedure which they themselves

provided for in accordance with their Rules. Once reports are prepared contrary to the

procedure provided by the Statute, Rules, Regulations and Instructions, it is bound to cause prejudice to the affected party. From the words of the law there should be no

departure nor should they be given a meaning which would not further the cause of the

Rule. We may refer to the case of Dr. Sudha Suri vs. Union of India (Pb.and Hry.) and

Ors. 2002 (1) SLR 665 where the Court held as under:- ?It is a settled principle of law

that once methodology for doing a particular act is provided under the statute, rules or

regulations, then such act must be done in the manner and way prescribed alone and in no

other way. Reference can usefully be made to a recent Division Bench Judgment of this

Court in the case of K.G. Nanchahal and another Versus State of Punjab and others, CWP

No. 8810 of 2001 decided on 11.10.2001, where the Court held as under:- ?It is a settled

principle of law that the act must be done in the prescribed manner and no other way. The

conditions of a rule and prescribed procedure must be satisfied and there must be

application of mind. Reference in that regard can be made to the judgments of Hon'ble

Supreme Court in the cases of State of Uttar Pradesh Versus Singhara Singh and others,

AIR 1964 Supreme Court 358; Hukam Chand Shyam Lal Versus Union of India and

others, AIR 1976 SupremeCourt 789 and Chandra Kishore Jha Versus Mahavir Prasad

and others, JT 1999 (7) S.C. 256.? The purpose of such principle is so very obvious that

the prescribed authority alone should exercise the power given to it. But for the

prescribed authority, no other authority can assume such power merely for the reason that

it consider it appropriate to do so and is vested with the some other power under the

relevant ru es/provisions.?

22. In order to examine this aspect in some depth we may refer to certain hypothetical

illustrations. A person who joined Army after satisfying all theprescribed standards and

rigours of physical and medical tests, after having rendered service for number of years in

Army, without suffering any illness and then is suddenly taken ill, normally such an

illness would be attributable to or aggravated by military service unless in the opinion of

the Medical Board there was clinical or investigative evidence to show to the contrary. It

is possible that an individual may join the Army in a fit condition and despite normal

medical examinations it was not possible to diagnose a disease at the time of his entry

into service, however, such a disease surfaces after his joining the Army and upon

investigations it could safely be stated that the disease was existing even prior to his

joining the Army Service. It could also be found and medically demonstrated that the

disease was 'Constitutional' though it appeared or aggravated after the individual had

joined the Army Service.

23. The present case is one of the case out of a bunch of writ petitions which were

heard by us. When we were hearing the bunch of these writ petitions, a writ petition

bearing W.P.(C) No. 3843/1994 titled as Ex. Hav. Maman Singh vs. Union of India

decided on 20.7.2006, was also heard. In that case, the petitioner was suffering from

'HEMSPLEGIA (left)' and was invalidated from Army Service but the Medical Board

had conducted investigation upon the patient and it was found that the said disease was

existing in his brain even prior to his joining the Army, however, it surfaced at a much

subsequent stage. It was also recorded in the Medical Board proceedings that further

investigations were necessary and the same was advised to the patient by the Medical

Board. In that case, further investigation and treatment was refused by the petitioner

which, in fact, could have given the exact time of the onset of the disease and whether it surfaced or aggravated during the Army Services. The said writ petition, on production of

Records, was withdrawn by the learned counsel appearing for the petitioner. This would

be an example where a person had entered into army service with pre-existing disease

and, thus, could not be entitled to the benefits of disability pension on the ground of

attribution to military service.

24. Still there could be other cases where opinion of the Medical Board is not

supported by a reasoning or comments upon clinical examination and investigations

conducted on the concerned person and, in fact, on the face of it they may even appear to

be perverse. For example, a person, during the course of his service suffers a fracture

while on duty and the same as a result of defective surgery results in disability to him,

resulting in his invalidation out of service but with a declaration that it was neither

attributable to nor aggravated by service. In some cases, onset of a disease may be the

most elevant factor to be determined or answered by a Medical Board while in others the

emphasis may be on progression of the disease. Such a progression or onset is

attributable to or aggravated by military service or not is again a matter on which the

medical as well as the administrative authorities are expected to make record-based

conclusions or sanctions. But once these two ingredients of Regulation 173 of the

Pension and Regulations for the Army, 1961 are satisfied and the authorities sanction the

pension, the PCDA has hardly any jurisdiction to sit over the finality of these views given

by the competent authorities under these provisions.

25. An Officer or the persons other than the Officers, under Regulation 48a and 173

could claim disability pension, which consists of Service element and Disability element.

Regulations 48, 173 and 185 of the Pension Regulations provide for the complete scheme

and entitlement for grant of such relief, which of course, is subject to change, again as per

Rules and particularly in the cases where the Re Survey Medical Board finds that the

disability no longer exists or has been reduced . The above principles of law are wellsettled

and well-explained with hardly any scope for variation. Undue reliance upon

opinion of a Medical Board which patently violates the Regulations and Instructions of

the Army and gives no historical, diagnostic details of the treatment and the basis for

concluding non-attributability or non-aggravation to military service could result in

travesty of justice and frustration of the very object of the relevant rules.

26. In light of all these principles, now we would revert back to the facts of the

present case. The petitioner had joined military service in the year 1991 and he went

through stringent physical and medical tests on periodical basis by the appropriate

Medical Boards. He was never found to be sick or showed any sign or symptoms of any

mental disease or disorder. He served the Army without any complaint and to the

satisfaction of all concerned, right from the year 1991 till the year 1997, when for the first

time he showed symptoms of sickness and was finally invalidated from military service

in the year 1999. There is no dispute to the fact that the petitioner was invalidated from

military service with 40% disability with the disease of 'Neurosis' (Neuro- psychotic

disorder). However, as per the opinion of the Medical Board, the same was neither

attributable to nor aggravated by military service. The relevant part of AFMSF-16 reads

as under:- ?SUMMARY AND OPINION OF LT. COL. RC DAS, CLASSIFIED SPECIALIST (PSYCHIATRY), BASE HOSPITAL DELHI CANTT-10 DATED : 24

SEP 99 25 years old cfn/EME with just 8 yrs of service is a case of Neurosis (300, V 67)

in low med cat (CEE (Psy) 6/12 + 6/12 and EEE (Psy) 6/12 + 6/12 yrs. BEE (Psy) permt

wef Jan 98) since Mar 95 and is now reported with a relapse. He was last renewed at MH

Jabalpur in Feb 99. Onset of his neurotic illness was in Jan-Feb 95, manifested with bouts

of anxiety, noctural enwers, pre-mature ejaculation, errotic behaviour (touches wall while

he is walking) and idiosyncatic belief. Initial evaluation by Sr. Adv (Med) ruled out

contributory organic cause. After intensive treatment, with anxiolytics, thyroleptic, he

had improved marginally and was observed in low med category. Since then, he is being

periodically reviewed number of times and even after adequate treatment, he was found

to be symptomatic. During present review, he presented with headache, weakness,

innuberable somatic complaints, foregetfulness. He has some schizotypical personality

traits. He was adequately, treated with ECT (3), neuroleptics, thyroleptic and other

supportive measures without any appreciable improvement. Indl. Has been treated and

observed in low medical category for last five years, without any appreciable clinical

condition. He still shows residual symptoms like anergia, forgetfulness, somatic concern.

He is unfit to continue in further service. Rec to be invalided out of service in med cat

EEE (Psy). Adv Tab Trifluperazine 5 mg HS under med supervision? 27. It was recorded

in the Medical Board proceedings that the findings are recommendatory in nature and are

subject to approval/review/revision by the competent authority. Along with the medical

report, opinion of Lt. Col. RC Das, Classified Specialist (Psychiatry) was also enclosed.

In that report, it has been specifically recorded that the onset of his neurotic illness was in

Jan-Feb 1995. According to the Specialist, when initial evaluation of the patient was done

by Senior Medical Advisor, contributory organic cause was ruled out. Since then, he had

been under the treatment of the authorities. Having found that the condition of the patient

had worsened and disease had aggravated, on 8.10.1999 the patient was recommended to

the Invaliding Board as a result of which he was invalidated out of service.

28. Another very pertinent aspect of the present case is that when the disease of the

petitioner had manifested and he was examined by the Specialist on 19.1.1995, it was

specifically recommended by the said Specialist as under:- ?Unfit for HAA extreme cold

regions?

29. Despite such recommendations of the Specialist Medical Officer, the petitioner

was posted to high altitude, in fact, at the same place where he was posted prior to the

onset of his disease. Thereafter he was posted to Rajasthan i.e. in extreme hot climatic

conditions. Both these situations had apparently aggravated the disease of the petitioner

which, as per the medical records, worsened from the year 1997 to the year 1999 and

which necessitated invalidating out of the petitioner from the service in the year 1999.

30. In light of the above medical records and opinion of the Specialist doctors of the

Army, the Medical Board has violated all norms and has acted in complete violation of

and disrespect to the Rules and Regulations of the Army and has expressed nothing in the

entire proceedings except noting a word 'Yes' and/or 'No'. 31. The report does not contain any reason or expression of a medically oriented

opinion to satisfy the requirements of the aforestated provisions of law. There is

sufficient record before the Court in the form of opinion of the Classified Specialist and

Medical Specialist of the Medical Corps of Army, which can safely be relied upon by the

Court for granting the requisite relief to the petitioner. In fact, the opinion of the Medical

Board, as already noticed, is 'Recommendatory' (Refer to Rule 18 of the Pension

Regulation) and are to be considered by the administrative authorities before issuing the

sanction order. The authorities concerned, vide their letter dated May 2000 had forwarded

the case to CCDA (P) Allahabad with a clear indication that if there is any delay in

finalisation of disability element, at least necessary PPO for service element should be

issued to avoid any financial distress to the individual. This in no way weighed with the

authorities concerned and the CCDA (P) Allahabad rejected the entire pensionary claim

of the petitioner without even observing as to what it had to say about the opinion of the

Specialist which was part of the Medical Board Proceedings. Once the claim of the

petitioner was sanctioned and forwarded for disbursement to the pension authorities, they

could not have rejected the same arbitrarily, without any basis and without subjecting the

petitioner to an appellate medical board as contemplated under the Rules.

32. In view of the above circumstances, normally, the disability of the petitioner

would be attributable to army service and in any case the same is aggravated by

conditions of service. In this case, in fact there is contributory negligence of the

respondent authorities in denying aggravation of the disease during the course of his

normal service.

33. In view of our detailed discussion above, we find merit in this writ petition. The

same is allowed and the respondents are hereby directed to consider and grant disability

pension to the petitioner as he fully satisfies the ingredients of Regulation 173, within a

period of three months from the date of passing of this order.

34. However, in the facts and circumstances of the case, the parties are left to bear

their own costs.

Sd./-

SWATANTER KUMAR

Sd./-

G.S. SISTANI