Lt Gen (Retd) S Pattabhiraman)
The petitioner has approached the Honble High Court of Andhra Pradesh for setting aside the impugned order of the fourth respondent vide letter No.13676654/426/D-Per(A) of 06.11.2004 and of the second respondent letter No.8/40502/TB Appeal/04/AG/PS-4(A) of 16.08.2004 seeking sanction of disability pension (including service pension) to the petitioner, which has subsequently been transferred to this Tribunal after the formation of the Armed Forces Tribunal under the Armed Forces Tribunal Act, 2007 and re-numbered as TA No.92 of 2009. 2. The petitioners affidavit to the petition briefly runs as follows :
2(a) The petitioner joined the Indian Army on 04.03.1978 and after initial training at Brigade of the GUARDS, Kamptee, he was posted to 6 GUARDS located at NEFA, where he served from 15.12.1979 to 28.04.1980. The petitioner was invalided out of service on 03.02.1981 by a Medical Board held at Command Hospital, Eastern Command , Calcutta and was told by the Medical Board that 35 % disability pension has been recommended. The petitioner says that he acquired the disease while in service which continues to cause him severe health hazard as well as mental agony compelling him to spend on medicines at an average of Rs.600/- to Rs.800/- per month. The petitioner had submitted a number of representations to the respondents for grant of disability pension but has not got any satisfactory response. The fifth respondent vide letter dated 07.01.2004, on perusal of the medical documents submitted by the petitioner, had stated that the records reveal multiple calcified lesion on CT Scan Brain. This evidence of CT Scan, the petitioner feels, could be a sequel to the brain infection which could in turn have been contracted during service and hence could be made attributable. Since facilities of CT Scan were not available in 1981, and after 20 years, the petitioner feels the fifth respondent can consider the same and instead of rejecting the disability pension, could re-consider with a positive recommendation. Unfortunately, this aspect was ignored by the second and fourth respondent.
2(b) The petitioner, quoting Rule 14 (a) of the Entitlement Rules of 1982 justifies his cause. Rule 14 (a) reads as follows :
â(i) That the disease has arisen during the period of military service and
(ii) that the disease has been caused by the conditions of employment in military service.â
(The Court has repeatedly observed that these conditions have to be certified by medical opinion and can not be taken on face value.) The petitioner, having no other means of livelihood seeks relief by way of grant of disability pension. Hence, the petition.
3. In the common counter, the respondents, quoting Rule 14(a) to that of the Entitlement Rules, 1982 would say as follows :
â(a) Cases in which it is established conditions of Military Service did not determine or contribute to the onset of the diseases but influenced the subsequent courses of the diseases, will fall for acceptance on the basis of aggravations.
(b) A disease which has led to an individuals discharge or death will ordinarily be deemed to have arisen in service, if no note of it was made at the time of the individuals 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.
(c) If a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service.â
3(a) As per Rule 173 of the Pension Regulations for the Army, 1981 (Part I), unless otherwise specifically provided, the disability pension may be granted to an individual who is invalided from service on account of disability which is attributable to or aggravated by military service and is assessed at 20 % or over. In this case, the disability of the petitioner is neither attributable to nor aggravated by military service and hence the petitioner is not eligible for grant of disability pension. (The Tribunal examined the original Invaliding Medical Board proceedings â AFMSF-16 held at Military Hospital, Kamptee wherein the petitioner was diagnosed with Epilepsy 395 in the opinion of the Neuro-physician, and the same was subsequently approved by the Board.)
3(b) The individual with two years of service had been known to have recurrent episodes of generalized seizures. The Board, while giving its opinion on the attributability, has also mentioned that the disease is not connected with service.
3(c) The respondents, while agreeing to the petitioners service in NEFA, would say that he has been boarded out of service based on the diagnosis âEpilepsy 395 by an Invaliding Medical Board and discharged under Rule 13 (3) item III (iii) of Army Rule 1954 having been found unfit for further service. The respondents would also say that such types of diseases could not have been detected during the primary medical examination at the time of enrolment of the petitioner and are detected only after an extensive check-up and investigations. However, the disability pension claim of the petitioner was considered and the same was rejected due to not being eligible and based on the medical opinion. The evidence of CT scan, as provided by the petitioner, was examined during his subsequent appeal by the Director General Medical Services in Army Headquarters and he has, in his letter of 07.01.2004, said that since more than 20 years have passed, no cognizance could be taken of this at this belated stage. On the basis of this letter, the petitioners appeal of 18.11.2003 was forwarded to PCDA (P), Allahabad, who further submitted the application to the Army Head Quarters(AHQ) and the AHQ, after considering the appeal carefully, rejected the same on the grounds of abnormal delay of 22 years and no new grounds having risen and the decision was conveyed vide AHQ letter No.B/40502/TB Appeal/04/AG/PS-4(d) dated 18.08.2004 rejecting the appeal from the petitioner, not being eligible for disability pension based on the above medical opinion. With regard to the service pension, since the individual has rendered only two years and 336 days of service, he is not eligible for service pension, as prayed for in the petition. Hence, the petition is liable to be dismissed being devoid of merits.
4. The point for consideration for us is whether the petitioner is entitled to disability pension as prayed for in the petition ?
5. POINT : The honble Apex Court judgement in the case of Secretary, Ministry of Defence and others Vs Damodaran AV (Dead) through LRs and others (2009) 8 MLJ 1475 (SC) is applicable in toto in the petitioners case. The medical opinion has been forthright in rejecting the claim of the petitioner. The Apex Courts judgement runs as follows :
â7.The aforesaid provisions including that of the guidelines called the Guide to Medical Officers (Military Pensions) 1980 and also the source of power, i.e., the provision of Section 173 of the Pension Regulations including other relevant provisions came to be considered by the Supreme Court. A conjoint reading of the aforesaid provisions along with the decisions rendered by this Court makes it amply clear that the said provisions and the decisions lay down the entire procedure, guidelines and principles as to under what circumstances a person could be said to be medically unfit and disabled and is to be boarded out from service and its attributability. The decisions have also dealt with the manner and circumstances under which the said person would be entitled to receive the disability pension.
8. When an individual is found suffering from any disease or has sustained injury, he is examined by the medical experts who would not only examine him but also ascertain the nature of disease/injury and also record a decision as to whether the said personnel is to be placed in a medical category which is lower than âAYE (fit category) and whether temporarily or permanently. They also give a medical assessment and advice as to whether the individual is to be brought before the release/invalidating medical board. The said release/invalidating medical board generally consists of three doctors and they, keeping in view the clinical profile, the date and place of onset of invaliding disease/disability and service conditions, draws a conclusion as to whether the disease / injury has a causal connection with military service or not. On the basis of the same, they recommend (a) attributability, or (b) aggravation, or (c) whether connection with service. The second aspect which is also examined is the extent to which the function capacity of the individual is impaired. The said is adjudged and an assessment is made of the percentage of the disability suffered by the said personnel which is recorded so that the case of the personnel could be considered for grant of disability element of pension. Another aspect which is taken notice of at this stage is the duration for which the disability is likely to continue. The same is assessed/recommended in view of the disease being capable of being improved. All the aforesaid aspects are recorded and recommended in the form of AFMSF-16. The Invalidating Medical Board forms its opinion/recommendations on the basis of the medical report, injury report, court of enquiry proceedings, if any, charter of duties relating to peace or field area and of course, the physical examination of the individual.
9. The aforesaid provisions came to be interpreted by the various decisions rendered by this Court in which it has been consistently held that the opinion given by the doctors or the medical board shall be given weightage and primacy in the matter for ascertainment as to whether or not the injuries / illness sustained was due to or was aggravated by the military service which contributed to invalidation from the military service.â
As per the Judgement of Honourable Dr Mukundakam Sharma, J. which will emphasis that once the Invaliding Medical Board has opined that the disease under which a personnel is suffering from is neither attributable to nor aggravated by military service, then the said individual who has been discharged from service is not entitled for any disability pension.
In view of the above, the petitioners case has no basis for consideration. The Board proceedings held at Military Hospital, Kamptee by a competent Board of Officers, after examining the petitioner thoroughly have come to an unassailable conclusion that the disease suffered by the petitioner, i.e., Epilepsy 395, is neither attributable to nor aggravated by military service and hence it is not connected with service.
5(a) There is no material placed before this Tribunal on the side of the petitioner to take a contrary view of the Invalid Medical Board opinion (AFMSF-16). We are of the considered view that the petitioner is not eligible for disability pension and hence the petition is liable to be dismissed. Point is answered accordingly.
5(b) In fine, the petition is dismissed. However, keeping in view the plight of the petitioner and the circumstances of his having to maintain a family, we would request the Rajya Sainik Board of Andhra Pradesh (Hyderabad) to consider sympathetically for a suitable ex-gratia grant to cover at least the monthly medical expenditure to the tune of Rs.800/- per month and also to provide for any job opportunity, the petitioner being an ex-Serviceman. This may be confirmed within a period of four months. No cost.