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2013 DIGILAW 344 (JK)

Deeraj Mehra v. Union Of India

2013-05-29

TASHI RABSTAN

body2013
1. Through the medium of present petition, the petitioner seeks following relief: "i/ to set aside and quash rejection of the disability pension claim of the petitioner which has been rejected vide communication dated 20.02.2007 Annexure-G as well as communications dated 23.04.2008 and 12.10.2009 Annexure-H & J to this writ petition after calling the record from the respondents as the rejection of the disability pension is not sustainable in the eyes of law. ii/ to command and direct the respondents to grant and release the disability invalidated pension and other pensionary benefits in favour of the petitioner alongwith arrears with all consequential benefits alongwith interest in the interest of justice. 2. Case of the petitioner is that he was enrolled in the Indian Army after successfully completing all the physical and medical examinations/tests. The admit card was issued to the petitioner on 30.01.2005 by the Army Authorities and accordingly, the petitioner was admitted in the roll of the army vide no: 4008026H. Learned counsel for the petitioner submitted that at the time of entering the service he was physically fit and had no disability or disease of any type. The petitioner remained performing his duties with the army upto his discharge. The petitioner sent for undergoing training course. During training, the petitioner was shifted to Army Hospital Lucknow where he remained under treatment and was discharged as a patient of acute schizophrenia-like psychotic disorder (IMB) and accordingly invalidated from service on 16.11.2005. A medical board constituted in this regard was of the opinion that "a case of acute schizophrenia- like psychotic disorder. Hospitalized for Psychiatric Evaluation. Psychiatric Evaluation revealed poor self care, silly and inappropriate smile, posturing negativism, irrelevant speech, hallucinatory behaviour and delusions of persecution and control. He has been treated with antipsychotic, ECT (8) and supportive measures. Have shown a satisfactory response to treatment. Recommended low medical category S-5 to invalidated out of service in LMC S5 H1 A1 P1 E1. 3. It is contended by the petitioner that vide communication dated 18.10.2005, a civil employment certificate was issued in favour the petitioner by observing that the disability of the petitioner will not interfere with the civil employment and opinion of the medical board while issuing the civil employment certificate contravenes and contradicts the medical board opinion which has been made basis for invalidating the petitioner from service on medical grounds. While discharging the petitioner, the commutation of pension was also issued in favour of petitioner and as such the case was recommended for grant of commutation pension along with the certificate to be signed by the relatives of the petitioner. It is further contended that case of the petitioner has been suo moto recommended by the army authorities vide communication dated 26.02.2006 to PCDA (P) Allahabad. The PCDA (P) rejected the disability pension on the ground that the invalidation of the petitioner from service was neither attributable nor aggravated to the military service. This rejection was not communicated to the petitioner, as such, the petitioner filed a petition to PCDA(P) Allahabad vide communication dated 20.02.2007. The PCDA (P) Allahabad communicated the petitioner that his case has been rejected as he has been invalidated from service which is neither attributable nor aggravated to the military service. Against the rejection of disability pension, the petitioner filed an appeal to the appellate authority. The appeal of the petitioner was also rejected on the ground that the disability is neither attributable nor aggravated to the military service. 4. Feeling aggrieved of rejection of disability petition, the petitioner filed the present writ petition challenging the rejection order. 5. Respondents have filed reply to the writ petition. 6. Stand taken by the respondents is that the petitioner was enrolled in the army ( The Dogra Regiment) on 5th March 2005, while undergoing basic Military Training (BMT), the petitioner was admitted in the military hospital Faizabad on 12th July 2005 as a case of abnormal behaviour and then thereafter transferred to Command Hospital ( Central Command Lucknow) on 13th July 2005. The petitioner was treated in the Command Hospital Lucknow and his case was reviewed by Lt. Col P. K. Pardal, Classified Specialists in Psychiatry on 28th Sept 2005 and opined that the petitioner had an acute psychotic breakdown with classified Schizophrenic sympthomatology. Since the total duration of the episode has been less than one month, a diagnosis of Acute Schizophrenia like psychotic disorder is most appropriate from the present and it will be in the best interest of the petitioner and the organization to invalid him out of service. Since the total duration of the episode has been less than one month, a diagnosis of Acute Schizophrenia like psychotic disorder is most appropriate from the present and it will be in the best interest of the petitioner and the organization to invalid him out of service. Thereafter, the petitioner was recommended to be brought before the Invaliding Medical Board (IMB) and the Invaliding Medical Board assessed his disability "ACUTE SCHIZOPHRENIA LIKE PSYCHOTIC DISORDERS (F23.2)" as 20% but neither attributable nor aggravated by military service. The Medical Board proceeding was approved by ADH and Senior Advisor (PSN) HQ Central Command Lucknow and the petitioner was invalidated out of army service on 7th Nov 2005 under Item IV of the Table annexed to Rule 13(3) of Army Rules 1954. 7. The short question involved involved in the writ petition is whether the impugned rejection order came to be passed rightly or not and whether the petitioner is entitled to disability pension or not? It is beaten law of land that Army personnel is entitled to disability pension if the disease(s) is/are incurred during active service. The opinion of the Medical Board has great importance in this regard. Thus, I perused Confidential Part-III of the Proceeding. At serial no: 12, 13 & 2 of Part-5 it is contended that: "12. Do you consider the disability is attributable to service" Yes. 13. Do you consider the disability aggravated by service? Yes. 2. Did the disability exist before entering service. ? No. 8. From the above referred proceeding recorded by the Medical Board reveals that the disability was not existed before entering into service and attributable to military service, thus disability case of the petitioner was forwarded to pension sanctioning authority. Another ground for rejection of the case of the petitioner by the respondents is that the Petitioner's case does not meet the eligibility conditions for grant of disability pension as envisaged under Pension Regulations. It is appropriate to refer Rule 173 of the Pension Regulation for the Army 1961 Part-I and Regulation 423 (c) which reads as under: "Rule 173- Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalidated out of service on account of disability which is attributable to or aggravated by military service in non-battle causality and is assessed at 20% or over. The question whether a disability is attributable to or aggravated by military service shall be determined under the Rule in Appendix II." Regulation-423-(c)- the cause of a disability or death resulting from a disease will be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the armed forces determined and contributed to the onset of the disease. Cases, in which it is established that service conditions did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will be regarded as aggravated by the service. 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 service in the armed forces. 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." 9. As per Regulation 173 attributability of the deceased to the Military Service is to be examined and cleared by the Medical Board. However, a reading of Regulations 173 and 423(c) together, I find that under Regulation 423 (c) a rebuttable presumption is created to the effect that the cause of a disability resulting from a disease would be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the armed forces determined and contributed to the onset of the disease. However, last part of Regulation 423 (c) makes the said position clear inasmuch as it is stated that the said presumption is rebutable if the medical opinion holds for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance of service in which event the presumption will stand automatically rebutted. However, last part of Regulation 423 (c) makes the said position clear inasmuch as it is stated that the said presumption is rebutable if the medical opinion holds for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance of service in which event the presumption will stand automatically rebutted. Therefore, by reading of Regulations 423 (c) and 173 together the onus is on the respondents to have established based on the opinion of the Medical Board for reasons to be stated that the disease could not have been detected on medical examination at the time of enrolment and in the absence of reasons, such opinion by the Medical Board, the presumption would go unrebutted but remarks made by the Medical Board at the time of medical examination of the petitioner is simple and stated that "recommended to be invalided out of service in low medical category S5, H1, A1, P1, E1, as a case of Acute Schizophrenia-Like Psychotic Disorder (F23.2)." 10. There is nothing on record to show as to what was the reason of deceased on account of which the petitioner is invalidated out of service, could not have been detected on medical examination prior to enrolment of the petitioner into army service. The disability claim of the petitioner has been adjudicated in consultation with Medical Advisor ( Pension) and it has been decided that the disability suffered by the petitioner "Schizophrenia" on account of which he has been invalided out of military service is: (i) Neither attributable to nor aggravated by military service. (ii) Constitutional in nature and not related to service. 11. The disability attributable to or aggravate by military service has to be determined under Rule 5 in Appendix II to Rule which is reproduced as under: "5. The approach to the question of entitlement to causality pensionary awards and evaluation of disability shall be based on the following presumptions: PRIOR TO AND DURING SERVICE (a) A member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance. (b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due to service. 12. (b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due to service. 12. In terms of Rule 5 quoted above when a member has been enrolled and no physically disability is noted or recorded at the time of his enrolment, there is reason to believe that the individual is in sound physical and mental condition. Thus the case of the petitioner is covered by the said rule because at the time of enrolment of the petitioner, he was medical fit and no note about any type disability suffered by the petitioner has been recorded, therefore, he is presumed to have been physically sound and his subsequent diseases or deterioration in health is to be treated due to military service. This issue has already been settled by Hon'ble Division Bench of this Court in case titled Union of India v. Rattan Lal, 1992 (2) SCT 39. 13. As per conditions of Rule 173 of the Pension Regulation an individual is not entitled to because as per Rule 173 one of the conditions is that disability should be assessed 20%. In the present case medical board has assessed disability of the petitioner at 20% for five years. Learned counsel for the petitioner has relied upon judgment dated 06.03.2009 passed in LPASW No: 26/2007 titled Union of India v. Harbans Singh and judgment rendered by this Hon'ble Court in LPASW No: 16/2010 decided 30.01.2012. 14. On examination of record and coupled with the submissions made by learned counsel for the parties, impugned letters dated 20.02.2007, 23.04.2008 and 12.10.2009 are found to be illegal and came to be passed in violation of army rules and regulations. Accordingly, the same are quashed and the respondents are directed to consider claim of the petitioner for granting disability pension within a period of four months from the date copy of order is made available to the respondents by the petitioner. 15. Disposed of along with connected CMA.