Judgment:
ACA Adityan
The applicant has approached the Court for disability pension as well as for an attendant allowance by way of writ before the Honourable High Court of Madras, which was transferred after the constitution of this Armed Forces Tribunal, and renumbered as T.A.No.3 of 2009.
2. The short facts in the affidavit to the petition filed by the applicant in brief run as follows:-
The applicant enrolled in the Indian Army on 26.03.1985 and after undergoing strenuous training, he was promoted as Lance Naik, Naik and then Havilder and during his course of service, he had undergone periodical annual medical examination and he was found medically fit through out and his character was also assessed as âExemplaryâ. During 1997, he developed problem in both eyes, diagnosed as âCone Rod Macular Dystrophyâ. In the Army Medical Board conducted on 01.01.1998, his eye ailment was recorded as directly attributable to Army Service. Thereafter, for the next 5 years, he was treated by Army Hospitals and in Civil Hospitals, but there was no improvement in his eye sight, on the contrary it deteriorated day by day and his vision was very badly impaired leading to total blindness in the right eye and 6/60 in the left eye. Due to the poor sight, the applicant was unable to carry on his day to day work. The applicant had already completed pensionable service of 16 years and on the advice of the Army Authorities, he prepared to take discharge with service pension alongwith disability pension. In the Release Medical Board held on 30.07.2001 at Military Hospital, Chennai, the Medical Board fixed his disability at 80% and placed him on permanent low Medical Category âCEEâ and also recommended constant attendant. However, the Release Medical Board opined that his disability was neither attributed to nor aggravated by service conditions and was therefore not recommended for disability pension for the applicant. The applicant was discharged from Army Service on 01.11.2001 with only service pension. CCDA (Pension), Allahabad (now PCDA) has also rejected the petitioners disability pension. The second respondent in his letter No.1438783/F/PPO/DP 5676/Pen dated 03.07.2002, intimated that the disability pension asked for by the applicant was rejected by CCDA (Pension), Allahabad, (now PCDA), which led the applicant to prefer an appeal before the Army Authorities on 07.08.2002, which was also rejected vide Adjutant Generals Branch Letter No.B/40502/08/03/PS-4(d) dated 07.07.2003. The second appeal preferred by the applicant to the Government of India, Ministry of Defence, on 16.2.2004, was also rejected vide Letter No.6(16)2004/D (Pen-A and AC) dated 13.06.2005, which made the applicant to approach the Court for sanction of disability pension and attendant allowance from the date of his discharge ie. 01.11.2001 with 12% interest.
3. The applicant has also filed additional affidavit dated 01.07.2009. The learned counsel for the applicant CDR (Rtd) SP.Ilangovan, at this juncture would state that only for the purpose of amending the writ of mandamus filed before the Honourable High Court, Madras, as a writ of certiorarified mandamus, an additional affidavit was filed and there was absolutely no change in the prayer column or in the facts already stated in the writ petition.
4.The respondents have filed a joint counter contending that the applicant was enrolled in the Regiment of Artillery on 26.3.1985 and discharged from service with effect from 31.10.2001 (afternoon) on being placed in Low Medical category âCEE (P)â due to disease âCone Rod Macular Dystrophy (both eyes) 379 with effect from 02.07.2000. The Release Medical Board, duly constituted at Military Hospital, Chennai, on 30.07.2001, also affirmed that the applicant is suffering from âCone Red Macular Dystrophy (Both Eyes) 379 and the said disease is neither attributable to nor aggravated by military service being constitutional in nature. But the degree of disablement was assessed at 80% for life. During the service, the applicant was examined by a Single Medical Officer and his opinion was recorded on form No.AFMSF-15 dated 01.07.1998. But the said Board proceedings were not approved at next higher HQ, whereas the Release Medical Board Proceedings recorded on AFMSF-16, comprises of details of service, specialist opinions and attributability/aggravation based on guide to medical officers (military Pensions) duly vetted by at least two medical officers (none to be the one who had given opinion). The said proceedings were, thereafter, put up to the Deputy Director Medical Services (Higher HQ) for approval. The Board is the designated authority in deciding whether the disease is having any causal connection with the military service. Hence, the opinion recorded by the Release Medical Board is final and is not guided by the opinion recorded earlier on AFMSF-15 by a lone/single specialist.
4(a) The claim of the applicant for disability pension was forwarded to PCDA (P), Allahabad, by Artillery Records for adjudication. After due consideration. The claim was rejected vide order. dated 16.05.2002, on the ground that the disability, on which his claim is based, was neither attributed to nor aggravated by military service and is a disease which is constitutional in nature, and is not connected with service. After rejection of the claim, it was duly informed to the applicant that he can prefer the appeal to the Government of India, Ministry of Defence (First Appellate Committee) against the rejection of disability pension claim, within six months from the date of rejection i.e, 16.05.2002. The appeal preferred by the applicant dated 7.8.2002, to the Ministry of Defence, was also rejected. The Competent Authority examined the case and the claim for disability pension was rejected vide order dated 7.7.2003 on the ground that the disease by which applicant was suffering is constitutional in nature and is having no causal connection with the Military service. However, the applicant was advised to prefer second appeal to the Defence Ministers Appellate Committee within six months from 7.7.2003, if he is not satisfied with the decision of the First Appellate Committee.
4(b)Thereafter, the applicant preferred second appeal on 31.10.2003, which met the same fate as that of the first appeal as seen from the order of rejection vide Government of India, Ministry of Defence, letter No.6(16) 204/D (Pen-AandAC) dated 13.01.2005. Duly constituted Release Medical Board had rejected the claim of the applicant for disability pension only on the ground that it is neither attributed to nor aggravated by military service and not connected with service in accordance with the provisions of Para 173 of Pension Regulations for the Army 1961, Part-I, as well as the well settled law by the Honourable Apex Court. The Honourable Apex Court and various High Courts have repeatedly held that the Medical Board is the final authority and should be given primacy in deciding the claims for disability pension. The respondents have also relied on the following judgments of the Honourable Apex Court and various High Courts in support of their above contention_
(a)Civil Appeal No.164/1993 filed against the order in SLP.No.4233/1992 filed by the Ex Sapper Mohinder Singh.
(b) CDA (P) and Others Vs. S.Balachandran Nair (AIR 2005 SC 4391).
(c) Shakuntla Devi Vs. Union of India and Others (Delhi High Court)
(d) Order dated 29.3.2004 in W.P.No.19449 of 1999 filed by Ex Gnr R.Paramasivam.
5. In the para-war reply the respondents would further state that the applicant was enrolled in the Regiment of Artillery on 26.3.1985 and he was found fit by Recruiting Medical Officer at the time of enrolment and that it is not a ground to presume that he was free from all diseases at the time of enrolment, as the medical examination of the applicant was carried out as per Para-383 of Defence Service Regulations for the medical services 1962, wherein detailed medical examination such as laboratory test and other clinical analysis tests etc are not done due to lack of infrastructure and laboratory facilities at the location of recruitment. The applicant was discharged from service w.e.f 31.10.2001 (AN) being placed in low medical category lower than SHAPE-I and on his unwillingness to continue in service, under item III (v) of the table annexed to Rule 13(3) read in conjunction with Rules 13(2A) of Army Rule 1954, after completion of 16 yeas 07 months of service. The applicant was placed in low medical category BEE(Temporary) w.e.f. 01.01.1998 and on review he was down graded to medical category BEE (Permanent) w.e.f. 02.07.1998 due to disease âCone Rod Macular Dystrophy (both Eyes) 379â. On review finally the applicant was down graded to low medical category âCEE(P)â due to disease âCone Rod Macular Dystrophy (Both Eyes) 379â w.e.f. 02.07.2000. The duly constituted Release Medical Board was held for him at Military Hospital, Chennai, on 30.07.2001, which after physical and detail medical examination viewed his disability as âCone Rod Macular Dystrophy (Both Eyes) 379â as neither attributable to nor aggravated by military service and not connected with military service being constitutional in origin. However, the degree of disablement was assessed as 80% for life. The opinion of single Medical Officer recorded in AFMSF-15 done earlier on 01.01.1998, is not final. In this Medical Board, opinion of medical officer is not put up to higher authorities and it only deals with the aspects of categorization. Whereas, AFMSF-16 (Release Medical Board Proceedings), wherein the opinion of the Release Medical Board which comprises of two to three medical officers, reveals that the disability cannot be attributable to or aggravated by Military Service. The said opinion of the Release Medical Board is also approved by the Deputy Director Medical Service of Higher Headquartes and it is final. The opinion recorded in AFMSF-16 can not be subjected to the opinion recorded in AFMSF-15. As per para 6 of part-III of Release Medical Board Proceedings dated 30.07.2001, there was no requirement of attendant and disability of the applicant viewed as neither attributable to nor aggravated by military service, that is why at the time of sanctioning of pension no attendance allowance was sanctioned by the pension sanctioning authority. Only on the same ground PCDA (Pension), Allahabad, also rejected the claim of disability pension of the applicant. Both the first appeal and second appeal preferred by the applicant were rejected by the respective competent authorities only after due consideration. The decisions of the first appellate authority and the second appellate authority were duly communicated to the applicant. Taking into consideration 16 years 7 months service of the applicant, pension was granted to him on the basis of the report of the Release Medical Board as to the effect that the disability suffered by the applicant is neither attributable nor aggravated by military service and not connected with the service, being constitutional in nature, at the following heads_
(a)Service pension w.e.f. 01.11.2001 - Rs.1,687/- pm vide PPO
No.S/062034/2001
Dt 20.10.2001.
(b)Retirement gratuity - Rs.69,370/-
(c)AFPP Fund - Rs.1,22,398/-
(d)Final Settlement of Accounts - Rs.30,921/-
(e)Maturity Benefit under AGI Scheme âRs.43,673/-
In terms of para 173 of Pension Regulations for the Army 1961, Part-I, the disability pension was rejected by the competent authorities. Hence, the respondents would contend that the applicant is not entitled to any of the relief asked for in the application.
6. Heard CDR.(Retd).SP.Ilangovan, learned counsel appearing for the applicant as well as the JAG Officer Lt Col Sandeep Kumar for the respondents and considered their respective submissions.
7. The point for determination in this application is whether the disability diagnosed as âCone Rod Macular Dystrophyâ to the applicant is attributable to the Army service or is constitutional as contended by the respondents to reject the claim of disability pension and attendant allowance?
8.The Point:- The learned counsel for the applicant CDR. (Retd).SP. Illangovan in support of his contention that the disability viz. âCone Rod Macular Dystrophyâ suffered by the applicant is attributable to his army service and he is entitled to disability pension, would point out the proceedings of the Medical Board dated 1.1.1998, which consists of a qualified eye specialist and another member specialist (Obst and Gyn) and contended that the Board was of the opinion that the disability suffered by the applicant was contracted in his army service and that the Board has in clear terms answered that the applicant has no control over the contracted circumstance and that the Board has opined in categorical terms at Column No.3 in Part-2 (page 4 of the typed set of papers filed by the applicant) that the disease is directly attributable to the condition of service and that it has further been elicited that only due to the official work the applicant has suffered the disability and the board has also placed the applicant under BEE 6/12 (T) category. The learned counsel for the applicant would contend that as against this opinion of the Board dated 1.1.1998, the applicant was subjected to an examination by Release Medical Board held on 30.07.2001 at Military Hospital, Chennai. According to the learned counsel for the applicant, the second Board viz., Release Medical Board without taking into consideration the opinion of the Medical Board dated 1.1.1998 and without assigning any reason to differ from the opinion of the first medical board dated 1.1.1998, has stated that the disability suffered by the applicant can not be attributed to the army service, which according to us is against natural justice and illegal.
9. The learned counsel for the applicant also brought to the notice of this Tribunal that even according to the second board, the disability suffered by the applicant was diagnosed as âCone Rod Macular Dystrophyâ (both eyes) and the percentage of disability was also assessed at 80% and the duration of the disability was also assessed as through out life. So, according to the learned counsel for the applicant, the order of rejection of disability pension by the 3rd respondent on the basis of the opinion of the Release Medical Board, dated 30.07.2001, is liable to be set aside and can not be acted upon.
10. Per contra, the contention of the learned counsel for the applicant was vehemently opposed by the JAG Officer Lt Col Sandeep Kumar, who took a lot of pain by relying on several judgments of the Honourable Apex Court as well as various High Courts in support of his contention that the disability suffered by the applicant can not be attributed to the army service, but it is only constitutional.
11. The first dictum on which the reliance was placed by the JAG Officer is MLJ 1997 SC 28 (Union of India and another vs. Sh.Baljit Singh). The short facts of the said case run as follows:-
The respondent was enrolled in the Army as Apprentice on March 30, 1975 and was appointed in the service on regular basis w.e.f. March 27, 1977 in the EME 177 (sic.) Battalion. While he was in service he had sustained moderately severe injury Abductor Strain (R) Thigh internal Derangement (R) Knee on April 17, 1979 and was admitted to Military Hospital, Babina where he was downgraded to medical category CEE (temporary) w.e.f. August 11, 1979, by a duly constituted Medical Board of doctors. He was discharged from the Military Hospital, Babina on August 12, 1979. On May 10, 1981, the Medical Board of doctors found him physically incapacitated and reported in February 1980 in Psychiatric OPD where he was diagnosed to have a âNeurosis Superimposed on an immature histrionic persouabity (sic. Personality)â. He was recommended to be invalidated out of service. He was discharged from service by consent as an invalidated man on May 31, 1981. Army Authorities have denied his disability pension, which necessitated him to file W.P.No.738 of 1995 in the High Court of Himachal Pradesh at Shimla and he got an order, dated 31.10.1995, in his favour. Aggrieved by the orders of the High Court of Himachal Pradesh at Shimla, the Union of India preferred the said Civil Appeal, before the Apex Court.
11(a) Even though the said appeal preferred by the Union of India was dismissed by the Honourable Apex Court, the JAG Officer would rely on the judgment in support of his contention that the case of the applicant is not a fit one to grant disability pension. The relevant observation made in the above said judgment on which reliance was placed by the JAG Officer runs as follows:-
â5â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦ under Rule 173 of the primary conditions for grant of disability pension, as per the Pension Regulations of the Army, 1961, (for short, the âPension Regulationsâ), unless otherwise specifically provided, a disability pension may be granted to an individual who is invalidated from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20% or over. In this case, after examination of the respondent by the Board of Doctors, as per Col. 2(iii) it was reported that the injury was not connected with the service and as a result cannot be declared to have suffered injury due to the service. Mr.Naresh K.Sharma, learned counsel for the respondent, contends that the respondent had joined the service and while he was in service, he sustained injury and that, therefore, he is entitled to disability pension. He places reliance on para 2(ii) of the Entitlement Rules, (Appendix II at page 53 of the paper book). At page 55, Col.(ii) indicates that the disablement is due to a wound, injury or disease which (i) is attributable to military service; or (ii) existed before or arose during military service and has been and remains aggravated thereby;
â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦.
6â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦. It is seen that under Rule 173 disability pension would be computed only when disability has occurred due to a wound, injury or disease which is attributable to military service or existed before or arose during military service and has been and remains aggravated during the military service. If these conditions are satisfied necessarily the incumbent is entitled to the disability pension. This is made amply clear from clauses (a) to (d) of paragraph 7 which contemplates that in respect of a disease the Rule enumerated thereunder require to be observed. Cl.(c) provides that if a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed the onset of the disease and that the conditions were due to the circumstances of duty in military service. Unless these conditions are satisfied, it cannot be said that the sustenance of injury perse is on account of military service.
12. The learned JAG Officer also placed his reliance on Mil LJ 2005 SC 93 (Controller of Defence Accounts (Pension) and others Vs. S.Balachandran Nair. The facts of the said case in brief are as follows:-
âThe respondent S.Balachandran Nair joined the Indian Army on 7.2.1972 in the Signal Corps. He was selected to the regular Army through the selection process prescribed by the Army Authorities and had undergone a thorough medical examination. Thereafter, he had undergone military training at S M T R Goa for a period of two years. After completion of training he was posted in the Signal Company at Jabalpur for a period of three years. Thereafter, he was posted to the border area in Punjab. However, he was not involved in actual combat operations or in combat area. He was working in the office of Radio machine. He developed certain medical problems and was admitted in the Command Hospital at Chandigarh on 10.08.1977. He was not completely cured and had some kidney complications and the medical authorities found his illness as âanxiety neurosis.â He was again admitted in the Chandigarh Military Hospital in December, 1979 and after prolonged treatment was boarded out and the medical authorities were of the opinion that he became unfit for continuing in service and was put under the category of âEEEâ meaning âunfit and useless with effect from 18.03.1980 and was finally discharged from service. Respondent made an application for disability pension. Same was rejected by the authorities on the ground that the disability of the respondent was not attributable to military service. It was also stated that there was no proof that the disability had existed before or developed during military service and/or had aggravated thereby and military disability pension was accordingly denied. His representations to the higher authorities were also rejected, which made him to knock at the doors of the High Court of Kerala for justice. A single judge of the High Court of Kerala on the basis of the evidence on record had come to an unassailable conclusion that the disease suffered by the petitioner/respondent is attributable to the stress and strains of the military service and accordingly directed the competent authorities to disburse the disability pension. Aggrieved by the orders of the single judge of the High Court of Kerala, the respondents therein viz., the Controller of Defence Accounts (Pension) and others preferred an appeal before the Division Bench, which also concurred with the views of the single judge and dismissed the appeal observing that no psychic disability was noticed when the respondent joined the Military service.
12(a) The important observation in the said judgment of the Division Bench was that the illness occurred to the petitioner was when he was in border area and that the ailment was attributed to military service. Dissatisfied with the findings of the Division Bench, the respondent viz. the Controller of Defence Accounts (Pension) and others preferred an Civil Appeal before the Honourable Apex Court. While allowing the appeal, but without giving any retrospective effect to recover the disability pension already disbursed to the writ petitioner, the Honourable Apex Court has laid the Ruling as follows:-
â6â¦.. It is seen that various criteria have been prescribed in the guidelines under the Rules as to when the disease or injury is attributable to the military service. It is seen that under Rule 173 disability pension would be computed only when disability has occurred due to a wound, injury or disease which is attributable to military service or existed before or arose during military service and has been and remains aggravated during the military service. If these conditions are satisfied necessarily the incumbent is entitled to the disability pension. This is made amply clear from clauses (a) to (d) of paragraph 7 which contemplates that in respect of a disease the Rule enumerated thereunder require to be observed. Cl.(c) provides that if a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed the onset of the disease and that the conditions were due to the circumstances of duty in military service. Unless these conditions are satisfied, it cannot be said that the sustenance of injury per se is on account of military service. In view of the report of the Medical Board of Doctors, it is not due to military service. The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service. In each case, when a disability pension is sought for made a claim, it must be affirmatively established, as a fact, as to whether the injury sustained was due to military service or was aggravated which contributed to invalidation from the military service.
The position was again reiterated in Union of India and Ors Vs. Dhir Singh China, Colonel (Retd) (2003 (2) SCC 82. In para 7 it was observed as follows:-
â7.That leaves for consideration Regulation 53. The said Regulation provides that on an officer being compulsorily retired on account of age or on completion of tenure, if suffering on retirement from a disability attributable to or aggravated by military service and recorded by service medical authority, he may be granted, in addition to retiring pension, a disability element as if he had been retired on account of disability. It is not in dispute that the respondent was compulsorily retired on attaining the age of superannuation. The question, therefore, which arises for consideration is whether he was suffering, on retirement, from a disability attributable to or aggravated by military service and recorded by service medical authority. We have already referred to the opinion of the Medical Board which found that the two disabilities from which the respondent was suffering were not attributable to or aggravated by military service. Clearly therefore, the opinion of the Medical Board ruled out the applicability of Regulation 53 to the case of the respondent. The diseases from which he was suffering were not found to be attributable to or aggravated by military service, and were in the nature of constitutional diseases. Such being the opinion of the Medical Board, in our view the respondent can derive no benefit from Regulation 53. The opinion of the Medical Board has not been assailed in this proceeding and, therefore, must be accepted.â
The reasoning assigned by the Honourable Apex Court for arriving at a conclusion that the disability sustained by the writ petitioner therein can not be attributable to the military service is that the opinion of the medical board is to the effect that the disability underwhich the writ petitioner was said to be suffering was not attributable to or aggravated by the military service.
13. We are of the opinion that the facts of the said case is entirely different from the facts of the case on hand because as we have already pointed out in an earlier paragraph that in the opinion of the first medical board dated 1.1.1998 the Board has in crystal clear terms observed that the disability suffered by the applicant was contracted while he was in service and that the disability is directly attributable to the condition of the service. Even though the second medical board, even after coming to the conclusion that the applicant was suffering from âCone Rod Macular Dystrophy (Both Eyes) 379, and the percentage of the disability is 80%, without assigning any reason to differ from the views taken by the first medical board dated 1.1.1998, has opined that the disability suffered by the applicant cannot be attributed to the army service. The fact remains that the applicant had put in nearly 16 years of army service and that while in service only he had sustained the disability in both his eyes and even according to the opinion of the Doctor, the sight in the left eye is almost blind (6/60) and right eye is totally blind.
14. The learned counsel for the applicant has relied on the following judgment in his favour_ 2003 AIR SCW 3015 (Union of India Vs. Neki Ram), in a case of similar nature the respondent therein viz. Neki Ram approached the Court for grant of disability pension. He enrolled as a Sepoy on 29.09.1980 as Nursing Assistant in the Medical Corps. He was put into AYE category on his medical examination and after enrolment, he completed his course at various training centres. When he was undergoing the advance course of training at Military Hospital, Delhi Canntt., he suffered from some disease which was subsequently diagnosed as âMoya- Moyaâ and thereafter, he was sent to the Medical Board which found him permanently disabled to the extent of 60% and as such he was discharged on 5.5.1987 on the recommendation of the Medical Board. However, his claim for disability pension had not been accepted on the basis that the disease was not attributed nor aggravated due to the Military service. The trial Court had come to a conclusion that at the time of joining service he was hale and healthy and no sign of ill health could be found in him and it was only when he was in service he developed the said disease and under such circumstance, the said disability can be attributable to the military service. The trial Court had considered the fact that he had served continuously for four years and ultimately granted the disability pension. Aggrieved by the orders of the trial Court, Union of India preferred first appeal. The first appellate Court also found no reason to differ from the view taken by the trial Court and dismissed the first appeal thereby confirmed the orders of the trial Court, which resulted in the second appeal before the High Court. The second appeal was also dismissed. Hence, the Civil Appeal was preferred before the Honourable Apex Court by the Union of India. The Honourable Apex Court, after referring the Judgment in Union of India Vs. Baljit Sigh (1996)11 SCC 315, found that the decision in the said case has no application to the present facts of the case and dismissed the Civil Appeal, confirming the orders of the Courts below.
15.The facts of the said case in all four corners, in our view, will be applicable to the present facts of the case because as rightly pointed out by the learned counsel for the applicant, the second medical board (Release Medical Board) has assigned no reason to differ from the view taken by the first medical board, which had categorically opined that the disability suffered by the applicant is directly attributable to the military service. It is not denied by the respondents that the applicant has sustained the disability while he was in service. Under such circumstance, we are of the considered view that the disability (80%) sustained by the applicant is to be attributable to the military service. Unfortunately âa blind eye has been turned to the blind man by both the appellate authoritiesâ. The applicant has prayed for disability pension as per the rules and also attendance allowance, but the application is silent about the payment of remuneration to the attendance. There is no detail given in the application whether the applicant has engaged any attendant and if so from what date. Under such circumstance, we are of the view that the applicant is entitled for disability pension as prayed for and attendant allowance only from to-day.
16. In fine, the application is allowed as prayed for in respect of the claim for disability pension. The applicant is entitled to the attendant allowance only from today. The respondents are directed to comply with this order within six weeks from the date of receipt of copy of this order. No costs. This Tribunal records its appreciation for the valuable assistance rendered by the learned Lt Col Sandeep Kumar and learned CDR (Rtd).SP.Ilangovan.