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Rajasthan High Court · body

2007 DIGILAW 1263 (RAJ)

Major S. D. Sharma v. Union of India

2007-07-06

PREM SHANKER ASOPA

body2007
JUDGMENT 1. - By the instant writ petition, the petitioner has claimed the disability pension from the date he has been retired from service in the year 1990 with all consequential benefits. 2. The facts, in brief, of the case, as per petitioner, are that the petitioner was granted short service commission in the year 1967 in the Crops of Signals and declared medically fit with vision 6/6 in both eyes without glasses. Thereafter he was granted permanent commission in the year 1974. Before being permanent commissioned, he had undergone selection after having been selected by the Service Selection Board and had underwent medical fitness for 5 days at Air Force Command Hospital. He was declared medically fit which include the vision 6/6 in both eyes without glasses. He was promoted from time to time and underwent annual medical check up till 1986 for ACRs and was always declared medically fit SHAPE-1 with 6/6 vision without glasses. 3. It is further stated in writ petition that after 1986 on account of strenuous working while in Army and dealing with computers, the petitioner suffered serious loss of eye sight. A medical board was held in the year 1989 and he was assessed 75% disability attributable to the military service. Thereafter, the petitioner was placed in low medical categorically, but no eye treatment was given to him and he was further directed to remain posted in a teaching institute where he was asked to teach computers. The petitioner objected to the authorities that he could not teach computers in view of loss of eye sight being caused to him, but no avail. The petitioner has also annexed a copy of the medical examination report along with the writ petition wherein in column No. 4, the claim of the petitioner of disability due to service was affirmed. The petitioner has also stated that medical board was held at Military Hospital, Jabalpur and the petitioner was declared unfit for military service. The Board has assessed the disability 75%. the said proceedings were approved by the Commandant, Military Hospital, Jabalpur ADMS, DDMS, Central Command, Lucknow as well as Director Medical Services Army. The petitioner has also stated that medical board was held at Military Hospital, Jabalpur and the petitioner was declared unfit for military service. The Board has assessed the disability 75%. the said proceedings were approved by the Commandant, Military Hospital, Jabalpur ADMS, DDMS, Central Command, Lucknow as well as Director Medical Services Army. However, the Adjutant General of Army Headquarters sent the matter for conducting re-medical board, which was conveyed in January, 1990 at Army Hospital, Delhi instead of Command Hospital, Lucknow and without conducting any further check-up the Consultant in Opthalmology and giving any reason of disagreement declaring disability non-attributable to army service, therefore, disability pension was denied and further the minimum regular pension of Rs. 1988/- was finally sanctioned by the PPO dated 11.9.1990. The petitioner gave a notice for demand of justice for disability pension, but no heed was paid. 4. The grievance of the petitioner in the writ petition is that the action of the respondents in not releasing/granting of disability pension to the petitioner, who was invalidated on medical ground from service due to stress and strain of military service is highly unreasonable and arbitrary. The petitioner has further raised the grievance in the writ petition that second Medical Board to Mhow has not given any reason of disagreement of the medical board of Jabalpur and gave self controversy report. 5. The respondents have filed reply to the writ petition and while replying to para 4, 5 & 6 of the writ petition, have stated that the petitioner was invalidated out from Army Service w.e.f. 22.5.1990 being in Low Medical Category (Shape-5). They have further stated as per existing procedure, the officer was brought before the Invalidating Medical Board (IMB) held on 12.9.1989 at MCTE Mhow. For that degree of disablement of his ID "Macular Degeneration both Eyes-386" was assessed by the IMB at 70% for two years, but the same was viewed by the Board as neither attributable nor aggravated by his military service. As such, officer is not fulfilling one of the twin eligibility conditions for grant of disability pension as given in Regulation 48 of Pension regulation for the Army, 1916 Part-I. The respondents have annexed with the reply, the proceedings of the Medical Board as annexure-R/1 which contained opinion dated 30.8.1989 of Col. As such, officer is not fulfilling one of the twin eligibility conditions for grant of disability pension as given in Regulation 48 of Pension regulation for the Army, 1916 Part-I. The respondents have annexed with the reply, the proceedings of the Medical Board as annexure-R/1 which contained opinion dated 30.8.1989 of Col. S.C. Verma, Senior Advisor (opth) Military Hospital, Jabalpur and the proceedings held as well as Medical Case Sheet of MCTE, Mhow dated 12.9.1989 in support of the aforesaid ground that it is neither aggravated not attributable to military service. As regards, reason for constituting another medical board, the respondents have stated that the assessment made by the Board is only recommendatory in nature as per Rule 17(b) of Entitlement Rules to Casualty Pensionary Awards to the Armed Forces Personnel, 1982 (e.R. 82) and is subject to review by the competent medical authorities as stipulated in rule 17(a) and 27(c) thereof. The proceedings of the Medical Board along with other medical documents are examined by the competent medical authority in the office of Director General Award Forces Medical Services and by the administrative authority in the Army Headquarter in case the disability is due to any injury and final recommendation with regard to attributability aspect and degree of disablement is given by them. On the basis of recommendation, disability pension claim of the individual is either accepted or rejected. Here in the instant case, same was rejected after review. 6. The petitioner has filed the rejoinder quoting Rule 48 with the further reiteration of the fact that he is entitled for pension in view of medical report of Col. S.C. Verma, Military Hospital, Jabalpur. 7. Before proceeding to refer and further deal with the submission, it would be appropriate to refer some of the admitted/undisputed facts born out from the pleadings and reports of the Medical Boards annexed with the writ petition. In 1967 and 1974, the vision of the petitioner was 6/6 without glasses and further upto 1986, there is no deterioration mentioned in the regular earlier medical checks-ups. From 1987 onwards, there is deterioration in the eye sight of the petitioner. In annexure R/1, which appears to be consolidated medical report of the two Medical Boards, there is an opinion dated 30.8.1989 of Col. Dr. S.C. Verma, Senior Advisor (Opth.) MH, Jabalpur. From 1987 onwards, there is deterioration in the eye sight of the petitioner. In annexure R/1, which appears to be consolidated medical report of the two Medical Boards, there is an opinion dated 30.8.1989 of Col. Dr. S.C. Verma, Senior Advisor (Opth.) MH, Jabalpur. In the said opinion, percentage of disability was assessed as 70% and the disease was detected as Macular Degeneration both eyes-386 and further same was not attributable, but certainly aggravated due to tremendous mental stress and strain on eyes during the service period prior to January, 1989. Then the petitioner was asked to appear before another Medical Board headed by Medical Officer Dr. Rajvir Singh, Major AMC, who in column No. 4 affirmed the claim of the petitioner that disability was due to service and the same was assessed as 70%. In the last of Part II, it has been mentioned that "in view of above, individual is brought before Invalidating Board". Thereafter, in Part-Ill, the Brigadier recommended the case for medical examination without assigning any reason, which was carried out on 8.9.1989 and medical report was submitted on 12.8.1989, in column No. (d) of Part-III of said report, it has been mentioned that disease is connected with the service as the disability is "degeneration condition", but in the earlier columns, just above column (d), it has been mentioned that it is neither attributable nor aggravated to the service. This report is self contradictory as once the Board came to the conclusion that the same is connected with the military service then it cannot be concluded that the same is neither attributable nor aggravated on account of military service. Further no reasons have been mentioned to disagree with the opinion of Col. Dr. S.C. Verma dated 30.8.1989 wherein clear opinion of aggravation of the disease on account of mental stress and strain in service has been given. The non-disclosure of the reasons in the Medical Board reports for constitution of the second Medical Board and further not mentioning the same in the reply clearly reveal that there was no justification for constitution of the second Medical Board. 8. The non-disclosure of the reasons in the Medical Board reports for constitution of the second Medical Board and further not mentioning the same in the reply clearly reveal that there was no justification for constitution of the second Medical Board. 8. Submission of counsel for the petitioner is that when the petitioner was declared medically fit at the time of entry in service with vision of 6/6 without glasses as well as in 1974 when he was selected for permanent commission and further he was fit in all the medical check-ups upto 1986 and finally he was placed in Low Medical Category (Shape-5) in 1989 then invalidating him out from service on 22.5.1990. The inference of the aforesaid is that the said disease is either attributable or aggravated to the military service, which has been further affirmed in medical examination of Medical Board, Jabalpur, wherein clear finding has been given that disability in due to service and was aggravated due to tremendous mental stress and strain of service. Then there appears to be no justification for constituting the medical board to review the aforesaid medical examination. Even after review also, medical board has not given any note of disagreement with the aforesaid Medical Board, Jabalpur and further at one place i.e. Column (d) of Part- III, Medical Board, MCTE, Mhow, the disability has been shown to be connected with service. In such circumstances, when all the documents are examined then the conclusion will be that disease is connected with the service and the same is aggravated during service, therefore, the respondents have acted arbitrarily in not granting the disability pension. 9. The petitioner has placed reliance on a Division Bench judgment of this Court in The Union of India & Ors. v. Pratap Singh Rathore-D.B. Civil Special Appeal (W) No. 111/2006 decided on 27.2.2007 wherein the Division Bench has considered the initial medical fitness and Rule 7(b) of the Appendix-II, according to which, a disease which has led to an individual discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of individual's acceptance for military service. The petitioner has also placed reliance on Rule 4 & 9, according to which, he will receive the benefit of any reasonable doubt. 10. The petitioner has also placed reliance on Rule 4 & 9, according to which, he will receive the benefit of any reasonable doubt. 10. Submission of the respondents is that the recommendations of the Medical Board are recommendatory in nature and as per Rule 17(a) & 27(c) of the Rules of 1982, The same can be reviewed by the competent medical board and on review, it was found that disability is neither attributable nor aggravated to the service, therefore, the petitioner is not entitled for pension under Regulation of 1948. 11. I have gone through the contents of the writ petition and further considered rival submissions of the parties. 12. Before proceeding further, it would be worthwhile to quote some portions of the medical examination report, opinion of Medical Board headed by Col. S.C. Verma and another Medical Board of Mhow and certificate for civil employment.Opinion of Col. S.C. Verma "OPINION OF COLONEL S.C. VERMA SENIOR ADVISOR (OPTHALMOLOGY), MILITARY HOSPITAL JABALPUR ON IN 30TH AUG, 1989 Percentage 70% (Seventy percent) The disability is not attributable but certainly aggravated (a) due to tremendous mental stress and strain, also physical stress and strain on eyes during the period prior to Jan 1989, the period when he remained in S/H/A/P/El since he had to undergo various courses forcing continuous hard studies involving tough competition to acquire better grading and better output in the interest of military duties and service. This fact is authenticated by the fact that this officer has been awarded six medals including SO-in-C' a cold madal for his outstanding performance in various courses and examinations. Had the officer not been recommended/subjected to undergo these courses, his deterioration of eye condition would not have been so gross, alarming and untimely (b) since the officer has been assigned the duties of an instructor at MCTE, Mhow since Jan 1989 requiring hard and continuous studies and therefore this has also resulted in aggravation of his condition. Sd/- (S.C. Verma) Colonel Senior Advisor (Opth) MH Jabalpur" (emphasis supplied)Medical examination report dated 7.9.1989 "CONFIDENTIAL MEDICAL EXAMINATION REPORT Release or Discharge Invalidment 1......... 2......... 3......... 4. Do you claim any disability due to service YES (70 PERCENT)" (emphasis supplied) Report of Medical Board, Mhow dated 12.9.1989 "CONFIDENTIAL PART III OPINION OF THE MEDICAL BOARD (Not to be communicated to the individual) Note-Clear and decisive answers should be filled in by the Board. 2......... 3......... 4. Do you claim any disability due to service YES (70 PERCENT)" (emphasis supplied) Report of Medical Board, Mhow dated 12.9.1989 "CONFIDENTIAL PART III OPINION OF THE MEDICAL BOARD (Not to be communicated to the individual) Note-Clear and decisive answers should be filled in by the Board. Expressions such as 'might', 'may', 'probably', should be avoided. 1. Did the disability/ies exist before entering service? NO 2. (a) In respect of each disability the Medical Board on the evidence before it will expression its views as to whether (I) it is attributable to service during peace or under field service conditions : or (ii) it has been aggravated thereby and remains so; or (iii) It is not connected with service The Board should state fully the reasons in regard to each disability on which its opinion is based. Disability A B C MACULAR No No Yes DEGENERATION BOTH EYES 386 (b) In respect of each disability shown as attributable under A the Board should state fully, the specific condition and period in service which caused the disability NA (c) In respect of each disability shown as aggravated under B, the Board should state fully : (i) ...... (ii) Whether the effects of such aggravation still persists NA (iii) If the answer (ii) is the affirmative, whether effect of aggravation will persist for a material period. NA (d) In the case of disability under C, the Board should state what exactly in their opinion is the cause thereof. Connected with service as the disability is degeneration condition." (emphasis supplied) "CERTIFICATE FOR CIVIL WRIT EMPLOYMENT NO IC 29056P Rank Major Name SD Sharma Unit Military college of Telecommunication engineering, Mhow (MP) is brought before a invaliding medical board for the disability MACULAR DEGENERATION 386 (BE) at Military Hospital, Mhow (MP). The disability is likely to effect the performance of normal duties in his civil life. Station : Mhow (MP)Dated : 12 Sep., 1989 (Signature of Presiding Officer) (PRS Rathore) Lt. Col Commanding Officer Military Hospital, Mhow" (emphasis supplied) 13. The disability is likely to effect the performance of normal duties in his civil life. Station : Mhow (MP)Dated : 12 Sep., 1989 (Signature of Presiding Officer) (PRS Rathore) Lt. Col Commanding Officer Military Hospital, Mhow" (emphasis supplied) 13. Rule 3, 4, 9, 14 (a) & 14(b), 17, 27 (c) & 48 of Entitlement Rules for Casualty Pensionary Awards, 1982 (in short "the Entitlement Rules, 1982) are as follows : "Rule 3 of Appendix-1l "These rules do not apply to the cases where disablement or death, on which the claim to casualty pensionary award is based, took place : (i) during the period of 3.9.1939 to 31.3.1948, which will dealt with in accordance with the entitlement criteria laid down in Annexure-1. (ii) During the period from 1.1.1948 to 31.12.1981 which will be dealt with in accordance with the entitlement rules promulgated vide Ministry of Defence (Pension Branch) letter No. 138999/1? PC, dated 18th April, 1950, as mended from time to time. (iii) During the post 1948 period/s of emergency, which will be dealt with in accordance with Annexure II. Rule 4 of Appendix-II "Invaliding from service is a necessary condition for grant of disability pension. An individual who, at the time of his release under the Release Regulations, is in a lower medical category than that in which he was recruited will be treated as invalidated from service. JCO/OR and equivalents in other services who are placed permanently in a medical category other than 'A' and are discharged because no Alternative or Shelter Appointment can be provided, as well as those who having been retained in alternative employment but are discharged before the completion of their engagement will be deemed to have been invalidated out of service. Rule 9 of Appendix-11 ONUS OF PROOF "The claimant shall not be called upon to prove the conditions of entitlements. He/she will receive the benefit of any reasonable doubt. This benefit will be given more liberally to the claimants in field/afloat service cases. Rule 14(a) & (b) of Appendix-II "14. In respect of diseases, the following rule will be observed : (a) Cases in which it 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. Rule 14(a) & (b) of Appendix-II "14. In respect of diseases, the following rule will be observed : (a) Cases in which it 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. (b) A disease which has led to an 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. However, if medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. Rule 17 of Appendix-11 "MEDICAL OPINION : At initial stage, medical views of entitlement and assessment are given by the IMB/RMB. Normally, these views shall prevail for decisions in accepting or rejecting the claim. In cases of doubt the Ministry/CCDA (Pensions) may refer such cases for second medical opinion to MA (Pensions) Sections in the office of the DGAFMS/Office of CCDA (P), Allahabad, respectively. At appeal stage, appropriate appellate medical authorities can review and revise the opinion of the medical boards on entitlement and assessment. Rule 27(c) of Appendix-II FUNCTIONS AND RESPONSIBILITIES "(C) MEDICAL AUTHORITY-Assessment of disablement and entitlement in case of disabilities other than injuries on purely medical issues. Views on such medical issues shall be given by the appropriate medical authorities as under: (i) Medical Board shall given findings and recommendations on entitlement and assessment in case of all disabilities. They are, however, not statutory bodies and their recommendations can be reviewed and revised by the medical authorities viz. DGAFMS. (ii) DDG (Pensions), Office of the DGAFMS shall be the medical authority dealing with medical issues at first appeal stage of the claim. (iii) DGAFMS will be the final medical authority for giving views on medical issues at final stage to the DMACP. Rule 48 "(a) Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an office who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non-battle causality cases and is assessed at 20 percent or more. Rule 48 "(a) Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an office who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non-battle causality cases and is assessed at 20 percent or more. (b) The question whether a disability is attributable to or aggravated by military service shall be determined under the rules of Appendix II. 14, The Division Bench while dealing with the case of disability less than 20% in respect of Ex-Army Man, who was discharged on 9.5.1973 held that it covers grant of service element of disability under Regulation 186, although learned Single Judge has decided the case on the issue that Regulation No. 173(a) to Regulation 173 is independent, but the said issue was not decided. The relevant portion of the said judgment is as follows : "An attempt was made on behalf of the appellant to find loopholes in the case of the respondent and it was submitted by Shri Pareek that the disease was not attributable to military service. We do not find an iota of substance in the submission. The respondent as seen above, was enrolled in the Army 26.6.1966. From the discharge certificate, copy whereof was brought on record by the appellant alongwith the reply as Annexure R/1/1, it is manifest that the date of origin of the disease was found to be in March, 1970. In the summary of case also, it was stated that the respondent was an old case of varicocele which started in March 1970. We are thus satisfied that disease was attributable to the military service, from the description of the disease in Annexure III to Appendix II to the Pension Regulations it appears that varicose veins is caused by training, march, prolonged standing etc. It is to be noticed here that at the time of enrollment, the disease was not noticed, and therefore there can be little doubt that the respondent developed the disease during the military service and it was aggravated by the conditions of service. It is to be noticed here that at the time of enrollment, the disease was not noticed, and therefore there can be little doubt that the respondent developed the disease during the military service and it was aggravated by the conditions of service. Reference maybe made to rule 7(b) of Appendix II which provides that a disease which has held to an individual discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of individual's acceptance for military service. However, if medical opinion hold, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during evidence. That being the position, even though the disability was less than 20%, the respondent's case is clearly covered by regulation 186 which states in no uncertain terms that individual invalidated out of service with a disability attributable to or aggravated by service but assessed at bellow 20% shall be entitled to service element (of disability pension) only. There being no further claim of the respondent that he is also entitled to the disability element of the pension, we do not think it is necessary to go into the question as to whether regulations 173 and 173A are independent or they are so intertwined as to be governed by the other." (page 7 to 9). (emphasis supplied)Rule 7(b) referred and relied by the Division Bench is of appendix-11 applicable at the relevant time of 1973 as would be evident from Rule 3 of Appendix-II of the Entitlement Rules, 1982, but in the instant case Appendix- II of the Entitlement Rules, 1982 is applicable wherein corresponding Rule is 14(a) & 14(b).15. The Division Bench in the case of Union of India & Ors. (supra) has held that in case no note is made at the time of individual's acceptance for military service regarding disease which has led to an individual discharge or death will ordinarily be deemed to have arisen in service. Here in the instant case, there was no such note and rather the note was in favour of the petitioner that he is having the vision of 6/6 without glasses. Here in the instant case, there was no such note and rather the note was in favour of the petitioner that he is having the vision of 6/6 without glasses. Subsequently, when he was granted permanent commission in the year 1974, again in the medical report upto 1986 there was no deterioration and same vision was recorded. He was granted promotion also and upto 1986, there was no sign of any kind of deterioration in vision and the loss of eye sight after 1986 is on account of stress and strain of military service more particularly computer teaching job of the petitioner.16. Apart from above, medical re-examination report and finding of the medical board or Col. S.C. Verma, Military Hospital, Jabalpur is in favour of the petitioner and thereafter also, the respondents have not been able to explain what was the reason for constituting re-medical board. Submission of the respondents is that according to Rule 17, medical views on entitlement and assessment are given by the IMB/RMB. Normally these views shall prevail for decisions in accepting or rejecting the claim and in case of doubt, second medical opinion can be sought. Further under Rule 27(a) recommendations of medical board are recommendatory in nature, but that does not mean that without giving the reason of deferring from the opinion of the earlier medical board on the basis of which, matter can be referred to another medical board. In the instant case, there was no reason at time of referring the matter to second Medical Board Mhow. Considering the aforesaid fact from initial start of service to 1986 when the petitioner was medically fit and alleged disease has not been caused upto 1986 and further in all the medical boards, there is a mention of the fact that disease is connected with service.17. According to Rule 9, the claimant shall be called upon to prove the conditions of disablement and he/she will receive the benefit of any reasonable doubt. This benefit will be given more liberally to the claimants in the field/afloat services cases, according to Rule 14(a) & (b), the subsequent curses of the disease will fall for acceptance on the basis of aggravation and in case no note is made at the time of individual's acceptance of military service then the disease will ordinarily be deemed to have arisen in service. Further as per Rule 17, normally medical views on entitlement and assessment shall prevail for the decision in accepting or rejecting the claim and in case of doubt, the review board is to be constituted. It is clearly revealed that the said beneficial rules are to be liberally construed and not to be construed so strictly that it will result in denial of disability pension on technical objections. In the instant case, the findings of the review medical board is self contradictory as at one stage they have stated that it is connected with military service and at another stage they have stated that it is neither attributable nor aggravated to the military service without giving any note of dissent to the opinion dated 30.8.1989 of earlier Medical Board held by Col. S.C. Verma. What was the reason for entertaining the doubt to constitute the review Medical Board is not clear from the record.18. Thus, there appears to be no justification for constitution of second Medical Board. In view of admitted and undisputed facts as well as discussion made hereinabove, the recommendation of the review Medical Board is arbitrary. It is held that the petitioner was suffering from Mauclar Degeneration and the same was aggravated in military service and resulted in loss of 70% vision in both eyes.19. Accordingly, the writ petition is allowed. The, respondents are directed to grant disability pension to the petitioner from 22.5.1990 and further revise the other post retrial benefits. The difference of arrears be paid within a period of three months.Writ petition allowed. *******