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2005 DIGILAW 139 (RAJ)

Kalu Singh Bhati v. Union of India

2005-01-17

GOVIND MATHUR

body2005
Judgment Govind Mathur, J.-The petitioner was enrolled with Indian Air Force on 01.02.1988 at Jodhpur as a Non Combatant (enrolled) in the trade of a Watchman. The petitioner was thoroughly examined by the Air Force Medical Board and was found fit and was placed in medical category "AYE". The petitioner was brought before the medical board again from 01.03.1997 to 23.04.1997. The medical board recommended for invalided out of the petitioner from the services by placing him in medical category "EEE". The medical board was held on 9th March, 1997 proceedings of which were duly approved by Air Head-quarters. Signal No. MD 493 dated 20.04.1997. The disability of the petitioner was assessed in the tune of 30% and the petitioner was discharged from services w.e.f. 14.05.1997 under the order dated 25.04.1997. The respondent No. 3, Chief Controller of Defence Accounts (Pension) turned down the case of the petitioner for grant of disability pension with the remarks reproduced as under :- "the disability from which you suffered during your service in the AIR Force and on which claim for Disability pension is based:- (a) is not attributable to Military service. (b) doesnot fulfill the conditions i.e. it existed before or arose during military service and has been aggravated thereby and hence the disability pension claim is rejected." 2. In view of the remarks mentioned above disability pension was denied to the petitioner. Being aggrieved by the same the petitioner preferred an appeal before the Air Officer Incharge, Air Force Record Office, New Delhi. The appeal preferred by the petitioner was also rejected by the first appellate committee. The first appellate committee rejected the claim of the petitioner on the count that the petitioner was invalided out from the services because of Schizophrenia which is a constitutional disorder unrelated to military service. The petitioner being aggrieved by the same preferred the present writ petition before this Court for redressal of his grievance with regard to grant of disability pension. 3. The contention of the petitioner is that in view of the Rule 153 of Pension Regulations for Air Force 1961 he is entitled for disability pension as he was invalided out from the service on account of disability which is attributable to or aggravated by Air Force and the disability assessed is more than 20%. 3. The contention of the petitioner is that in view of the Rule 153 of Pension Regulations for Air Force 1961 he is entitled for disability pension as he was invalided out from the service on account of disability which is attributable to or aggravated by Air Force and the disability assessed is more than 20%. A reply to the writ petition has been filed by the respondents stating therein that the petitioner suffer with disability i.e. of Schizophrenia and the same is neither attributable to nor aggravated by Air Force Services, and, therefore, Rule 153 of the Pension Regulations of 1961 is not applicable. 4. I have heard learned Counsel for the parties. Rule 153 of the Pension Regulations of 1961 entitles an invalided Air Force personnel for disability pension if the disability is assessed 20% or more than it and it and if the disability is either attributable to Air Force service or is aggravated due to Air Force service. Precisely this Court is required to see as to whether the petitioner fulfills the above mentioned two conditions which make him entitled for disability pension. The respondents along with their reply have placed on record proceedings of the medical board whereby the petitioner was declared invalided. The medical board after examining the petitioner noted its opinion as under:- "This 38 year old IAF NC (E) with 09 years service has been in low Med Cat for SCHIZOPHRENIA (295) since 16 February, 1995, and was last reviewed at MH Jabalpur in March 1996. His condition has deteriorated since then and he was again admitted to this hospital during December 1996 with relapse, while on A/Leave at Jodhpur. His response to intensive therapy over the past few weeks (incl ECT) has been only partial and he is unfit for further military service/AEMSF- 10 report dated 07 January, 1997 was favourable. In view of the foregoing I recommended his invalidment in Med Cat EEE psychological". 5. From the opinion referred above it is apparent that the petitioner was found invalided in the medical category "EEE". The medical board also found that the petitioner was not suffering from the disability at the time of enrollment in the services of Air Force. A specific finding in this regard is given in para 1 of the opinion of the medical board. The medical board also found that the petitioner was not suffering from the disability at the time of enrollment in the services of Air Force. A specific finding in this regard is given in para 1 of the opinion of the medical board. In Part III of the opinion of the medical board it appears that at the first instance it was noted down that the disability from which the petitioner is suffering is attributable to service during peace or under field service conditions of Air Force the same was subsequently scored out and in place of term Yes, term No was mentioned. Similarly, in Column C of Part III of the opinion of the medical board the term No was mentioned while making a note pertaining to whether disability is not connected with service. The term No was subsequently scored out and Yes was thereafter, mentioned. 6. In para 4 of the medical opinion a finding is given that composite assessment of disabilities is 30%. This Court by order dated 29.01.2003 observed that it is not clear from the document in what circumstances the approving authority scored out from the record of medical board. Accordingly, time was allowed to the Counsel for the respondents to disclose, who scored out the initial entries in Part III of the medical opinion by way of filing an affidavit. In light of the order dated 29.01.2003 an affidavit was filed sworn in by Air Cmde A.R. Nigam on 23.09.2003 stating therein that the approving authority is senior to the board and as such views taken by the board can be changed by approving authority and ultimately the view taken by the approving authority is final. According to the averments contained in the affidavit it was the approving authority who made necessary corrections in Part III of the opinion of the medical board. 7. It is true that a higher authority is having right to take a different view than a subordinate, however, such disagreement should always based on objective assessment of circumstances and for sufficient reasons. The senior authority is not supposed to act on whims. From perusal of the entries made in Part III of the opinion of the medical board it is apparent that the approving authority without assigning any reason altered the findings given by the medical board. Such alteration is nothing but arbitrary exercise of powers. 8. The senior authority is not supposed to act on whims. From perusal of the entries made in Part III of the opinion of the medical board it is apparent that the approving authority without assigning any reason altered the findings given by the medical board. Such alteration is nothing but arbitrary exercise of powers. 8. I am having no hesitation in holding that the approving authority acted in most casual manner and that too without application of mind. There is no reason available on record on the basis of which the findings given by the medical board could be altered by the approving authority. In view of the opinion of the medical board as it was prior to alteration by approving authority the petitioner suffered with the disability attributable to service during peace or under filed service conditions and the disability was connected with the service. The alteration made by the approving authority is in most mechanical manner, therefore, it is required to be ignored. The petitioner, in view of the report of medical board, fulfills the requirement of Rule 153 of the Pension Regulations of 1961 and as such he is entitled for disability pension. 9. The writ petition, therefore, succeeds and the same is allowed. The respondents are directed to allow disability pension to the petitioner in accordance with the Rule 153 of the Pension Regulations of 1961 from the date of petitioner was invalided out from services. All arrears accruing in favour of the petitioner be also paid to him. The compliance of this order be made within a period of three months from the date the certified copy of the order is served upon the respondents.