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2005 DIGILAW 46 (JK)

Chander Vir Singh v. Union Of India

2005-03-11

S.K.GUPTA

body2005
The petitioner was enrolled as a recruit in the Army on 22nd January, 2002 through Branch Recruiting Office, Jammu. After his recruitment, he was sent for military training in Training Center at Jabalpur. When second medical examination of the petitioner was carried out immediately on his reporting in the Training Centre of Jammu and Kashmir, Rifle Regimental Training Center Jabalpur on 28th January, 2002, the disability of colour PERCEPTION (CP IV) 367 was detected. The petitioner was referred to the Eye Specialist and according to his medical sheet dated 1.2.2002, the Ophthalmologist Lt. Col AMC V.K. Srivastava confirmed the diagnosis and further recommended that the petitioner be examined by the medical board as he is unfit to be retained in the Army. On the basis of opinion of the medical board, the petitioner was invalided out of service in medical category SHAPE5 under Rules 13(3) (III) (IV) of the Army Rules with effect from 14th May, 2002, in pursuance of the opinion of the medical board duly constituted in this behalf. Further case of the petitioner is that he made a request before the Army authorities for the grant of disability pension, but the same has been rejected/denied because of disability of colour blindness though it is neither clearly attributable to nor aggravated by military service. Whereas as per petitioner, the same has been caused due to stress, strain and hazards of the Army service, while in service. The petitioner further stated that his claim for disability pension has been held to be inadmissible, vide communication dated 4-8-2003. He submits that he preferred the appeal against the aforesaid order of rejection of disability pension which has yet not been decided by the respondents nor any communication in this regard has been received till date. Aggrieved by the order of rejection of the petitioners claim for disability pension, he has approached this Court for issuance of a writ of mandamus commanding the respondents to grant disability pension in favour of the petitioner having been invalided out of service on medical ground under article 226 of the Constitution of India read with section 103 of the Constitution of Jammu & Kashmir. Regulation-173, of Army Pension Regulation, 1961 contains the primary conditions for the grant of disability pension. For facility of reference, it is reproduced as under:- "173. Regulation-173, of Army Pension Regulation, 1961 contains the primary conditions for the grant of disability pension. For facility of reference, it is reproduced as under:- "173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 percent or over. The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II." A plain reading of the aforesaid provision makes it abundantly clear that the question of percentage of disability would be looked into only when it is determined that the disability is attributable to or aggravated by military service. In other words attributability/aggravation shall be conceded if casual connection between death/disablement and military service is certified by appropriate medical authority. The admitted facts gatherable from the record are that after his enrollment on 22.1.2002, the petitioner was sent for military training in military Training Center, Jabalpur. The disability of colour blindness was detected on his second medical examination conducted at Jabalpur, training center. Lt. Col. AMC V.K. Srivastava, to whom the petitioner was referred for further medical examination confirmed the disease of colour blindness and further opined in his medical report that the petitioner be brought before the medical Board, as in his opinion he was unfit to be retained in Army. The medical Board in its proceedings dated 22-04-2002 confirmed the disability of colour PERCEPTION (CP IV) 367. On the basis of opinion of medical board dated 22.4.2002, the petitioner was invalided out of service in medical category SHAPE5, solely on medical ground. It is pertinent to point out that the petitioner was enrolled and recruited in the Army on 22.01.2002 and the disability of colour PERCEPTION (CP IV) 367 was detected on 28.1.2002 in the Training Center, i.e., during second medical examination conducted after six days of his recruitment. This clearly shows that he had yet to undergo military training when the disease was detected. This clearly shows that he had yet to undergo military training when the disease was detected. So the plea raised by the petitioner that he did not suffer from colour blindness prior to his recruitment in the Army and it is attributable to stress, strain and hazards of the Army service is neither legally factual nor sustainable as colour PERCEPTION/ blindness is a genetic/constitutional disease. That apart, the petitioner has no where pleaded in the writ petition that he had suffered any injury during the period of his enrolment in the Army and reporting at Training Center, Jabalpur which could be associated with his disability. Assuming that the disability for colour blindness of the petitioner could not be detected on his first examination at the time of recruitment, but this cannot enhance the case of the petitioner because before he could undertake the training, the disease was detected during second medical examination conducted at Training Center, Jabalpur, i.e., after six days of his enrolment in the Army. The case of the petitioner, therefore, cannot be said to be covered under Regulation 173 of the Army Regulations, 1961 as the disability of colour blindness can neither be attributable to nor aggravated by military service, so as to entitle him for medical pension. The opinion of the medical officer with regard to the disability of colour PERCEPTION (CP IV) 367 has been confirmed by Lt. Col V.K. Srivastava, Specialist in Ophthalmology in the Army and further confirmed by the medical board on the basis of which the petitioner was invalided out of the Army service. In view of the opinion of the medical board, there does not exist any nexus of attributability/aggravation of disease detected on the disability on account of blindness in the military service. The claim of the petitioner for grant of disability pension was referred to CCDA, Allahabad, pension sanctioning authority which too held that no disability is admissible to the petitioner under rules based on the opinion of the medical Board for pension as the disability is neither attributable to or aggravated to military service and the same was conveyed to the petitioner, vide its communication dated 4.8.2003. In the above view of the matter, the petitioner, in my opinion, has not succeeded in carving out a prima case for the exercise of extra-ordinary writ jurisdiction of this Court. In the above view of the matter, the petitioner, in my opinion, has not succeeded in carving out a prima case for the exercise of extra-ordinary writ jurisdiction of this Court. Therefore, I do not find any merit in this writ petition and the same is, accordingly, dismissed at preliminary stage of hearing.