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2017 DIGILAW 179 (JK)

Dhian Singh v. Union of India

2017-04-07

ANURAG GOPALAM THAPLIYAL, BANSI LAL BHAT

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JUDGMENT : 1. Petitioner joined the Army on 27.6.1957. He sustained injury while serving with 7 JAK Rifles in field area in Kohima (Nagaland) in the year 1958 during performance of duty of Convoy protection. He complained of pain from time to time, but continued to perform his duties. He was promoted as L/Nk and deputed to EME Centre, Bhopal as an Instructor, where his back pain resurfaced. He was admitted to MH Bhopal for treatment. He was invalided out in Low Medical category EEE from service upon invalidating by the Medical Board for the disability "SACRISISATION V LUMBER VERTABRA (737)" w.e.f. 20.8.1965 in the rank of L/Nk. His disability was accepted as aggravated due to Military service. Petitioner's claim of Disability pension was denied by the respondents. He preferred an appeal against said denial wherein Record office was asked to hold Re-survey Medical Board of the petitioner. The Re-survey Medical Board re-assessed the disability of petition at 16 to 19%. Hence his claim of disability pension was rejected. A fresh petition made by the petitioner to Ministry of Defence resulted in re-assessment by Re-survey Medical Board on 4.8.1967 but there was no change in percentage of disability and the claim was again rejected. Petitioner continued to rake up the issue from time to time. It is alleged that despite the petitioner's disability having been assessed as aggravated by the service, even the service element of disability pension was not granted to the petitioner ignoring rule position obtaining in provisions of Regulation 186 of Pension Regulations for the Army, 1961. Petitioner seeks a direction to respondents for setting aside the impugned letter as per Annexure A2 and A7 whereby the disability pension claim of the petitioner has been rejected by the respondents. He also seeks a direction to respondents for grant of disability pension w.e.f. the date of his invalidment i.e. 21.8.1965 in the rank of L/Nk with all consequential benefits alongwith interest. Respondents have raised preliminary objections to the maintainability of the petition on the ground of Limitation. It is pleaded that the petitioner remained silent for more than 47 years as he was invalided out of service w.e.f. 21.8.1965. Hence the petition is barred by Limitation. On facts it is pleaded that while serving with 3 EME Centre, Bhopal, petitioner was admitted to MH, Bhopal and his disability was diagnosed as "SACRALISATION L-5 (737)". It is pleaded that the petitioner remained silent for more than 47 years as he was invalided out of service w.e.f. 21.8.1965. Hence the petition is barred by Limitation. On facts it is pleaded that while serving with 3 EME Centre, Bhopal, petitioner was admitted to MH, Bhopal and his disability was diagnosed as "SACRALISATION L-5 (737)". He was downgraded to Low Medical category "EEE" and was recommended to be invalided out of service being not likely to be a useful soldier. Accordingly petitioner was brought before a Invalidating Medical Board at MH. Bhopal on 10.7.1965, which assessed his disability as not attributable to nor aggravated by and not connected to Military service with 15 to 19% disablement for life. Petitioner was accordingly invalided out of service w.e.f. 21.8.1965 under Army Rule 13 item III (iii) of Army Rules of 1954 after rendering 7 years 2 months and 12 days of service. Grant of disability pension was governed by para 173 of the Pension Regulations to the Army, 1961 (VI). IMB has assessed disability of petitioner at less than 20%. PCDA(P), Allahabad rejected the claim of the petitioner for disability pension on the ground that the disability was not attributable to Military service and was assessed at less than 20% for life. Re-survey Medical Board was conducted to review his disability. RSMB re-assessed his disability at 16 to 19%. On appeal by the petitioner RSMB was again conducted wherein percentage of disability was assessed at less than 20%. The petitioner's claim was again rejected by the PCDA (P), Allahabad. The claim for disability pension was rejected on the ground that disability of petitioner was accepted at less than 20% for life. It is further pleaded that the petitioner invalided out from service prior to 1973 and his total service was 7 years 2 months and 12 days, thus the petitioner was not entitled to service element of disability pension. 2. In his replication to written statement petitioner has stated that the pension is a recurring cause of action and the claim of pension cannot be barred by delay and latches. It is stated that individuals invalided out of service even before 1973 are entitled for invalidating pension if the disability is declared attributable to or aggravated by Military service, irrespective of the length of service. It is stated that individuals invalided out of service even before 1973 are entitled for invalidating pension if the disability is declared attributable to or aggravated by Military service, irrespective of the length of service. It is further stated that in terms of para 30 to 32 of Chapter VII of Guide to Medical Officers 2008 the assessment of disability in all cases with disability 15 to 19% should not be less than 20%. It is further stated that benefit of service element is admissible to pre-1973 cases notwithstanding their qualifying service of pension being less than the minimum prescribed. 3. Heard learned counsel for the parties and perused the record. 4. Petitioner is a pre-1996 retiree having been invalided out from service w.e.f. 21.8.1965 in the rank of L/Nk with the Re-survey Medical Board having assessed his disability at 16 to 19%. His claim for disability pension was rejected due to the disability of the petitioner being accepted at less than 20% for life. The disability, in terms of rejection letter of PCDA (P), Allahabad dated 14.12.1965, was not attributable to military service. The disability, though assessed not being attributable to military service, was accepted as having been aggravated during military service. Thus petitioner's claim for disability pension came to be rejected on the ground that he was not entitled to disability pension due to the disability of petitioner being accepted at less than 20% for life. Since the RSMB assessed percentage of disability at less than 20% petitioner's claim was again rejected by PCDA (P) Allahabad vide letter dated 6.2.1968. Admittedly the disability was not existing at the time of petitioner's enrolment. The disability in the instant case, through not attributable to military service, is accepted as having been aggravated by military service. 5. Learned counsel for petitioner has relied upon order passed by AFT, Regional Bench, Chandigarh in OA Nos. 621, 1235 of 2014 and 480 of 2015, titled Bharat Kumar vs. Union of India and Others. The disability in the instant case, through not attributable to military service, is accepted as having been aggravated by military service. 5. Learned counsel for petitioner has relied upon order passed by AFT, Regional Bench, Chandigarh in OA Nos. 621, 1235 of 2014 and 480 of 2015, titled Bharat Kumar vs. Union of India and Others. Wherein the Bench has taken note of judgment of Hon'ble Apex Court in Civil Appeal No. 5605 of 2010 Sukhvinder Singh vs. Union of India and Others decided on 25.6.2014 and also noticed the order passed by the Bench in OA No. 2146 of 2012, in Balwinder Singh vs. Union of India and Others decided on 26.3.2015 and concluded that "based on above we are of the opinion that since the petitioner was invalided out from service in Low Medical category, his disability should be at least 20% as against 11 to 14% disability assessed by Invalidating Medical Board." 6. Regulation 186 of the Pension regulations for the Army 1961 provides that an individual invalided out of service with a disability attributable to or aggravated by military service but assessed at below 20% shall be entitled to service element only. It is the admitted position in the case that the disability from which the petitioner was found to suffer was detected during the tenure of his service and the disability was not pre-existing at the time of joining the service. Having regard to this fact and the provisions. contained in Rule 14(b) of entitlement rules the assumption would be that the disease having arisen during tenure of service is deemed to be attributable to military service. It is worthwhile to mention that the disability is admitted and accepted being aggravated by military service. It is worth noticing that RSMB was held on 11.4.1966 at the request of the petitioner as disability had worsened. The RSMB accepted that there was a sufficient increase in the percentage of disability and assessed the disability @ 20%, but later on figure 20 was scored out and replaced by 16-19%. Obviously, this has been done to the disadvantage of the petitioner without any justification. The percentage of disability has to be accepted as at least 20% as against 16 to 19% assessed by the RSMB. Obviously, this has been done to the disadvantage of the petitioner without any justification. The percentage of disability has to be accepted as at least 20% as against 16 to 19% assessed by the RSMB. As far as rounding off is concerned, the principle laid down by the Hon'ble Apex Court in the case of Union of India and Others vs. Ram Avtar in Civil Appeal No. 418 of 2012, decided on 10.12.2014 would apply. The disability is to be rounded upto 50% as against 20% accepted herein-above. Petitioner is also entitled to benefit of rounding off of his disability to 50% bearing in mind's ratio of judgment of Hon'ble Apex Court in Sukhvinder Singh (supra) which is eloquent enough to state that an individual cannot be invalided out from service with less than 20% disability and if the disability assessed be less than 50%, the same will be counted as 50%. Besides benefit of para 7.2 of Govt. of India, Ministry of Defence letter dated 31.1.2001 has also been extended to pre-1996 retirees in terms of Ministry of Defence (Army) letter dated 29.2.2012. In similar circumstances AFT Bench, Chandigarh, in terms of order dated 19.9.2016 titled Bharat Kumar vs. Union of India and Others granted disability pension to pre-1996 retirees having disability assessed at less than 20%. There is no reason to deny the same benefit to petitioner who shall be entitled to service element w.e.f. 21.8.1965 i.e. the date of his being invalided out from service with benefit of rounding off, of disability to 50%. In so far as the plea of Limitation is concerned, be it noticed that the claim to pension is a recurring right and same cannot be defeated by invoking the plea of Limitation. Same is true about the plea of respondents that petitioner had not qualified for pension. The plea stares in the face of provision engrafted in regulation 186 of Pension regulations for the Army 1961, which entitles an invalided out individual to claim service element when the disability is attributable to or aggravated by military service. The objections raised by respondents on this score are refuted. 7. In view of the fore-going discussion, the petition is allowed. Impugned letters forming Annexure A-2 and A-7 to the petition, by virtue whereof disability pension claim of the petitioner has been rejected by the respondents, are quashed. The objections raised by respondents on this score are refuted. 7. In view of the fore-going discussion, the petition is allowed. Impugned letters forming Annexure A-2 and A-7 to the petition, by virtue whereof disability pension claim of the petitioner has been rejected by the respondents, are quashed. Respondents are directed to grant disability pension in favour of petitioner in the rank of L/Nk w.e.f. 21.8.1965 with all consequential benefits. PPO in this regard shall be drawn up and issued within three months from the date of service of this order upon respondents, failing which arrears worked out shall carry interest @ 8% p.a. w.e.f. 21.8.1965. Petition is accordingly disposed of. File be consigned to records after its due completion.