Ex-signalman Shri Bhagwan Vs. Union of India (Uoi) Through the Secretary of Defense, - Court Judgment

Excerpt:
service - disability pension - article 226 of constitution of india, rules 2 to 14, 17, 19 to 25 and 27 of army rules, 1954, sections 22, 191 and 192 of army act, 1950 and regulations 12, 20, 21, 22, 165, 167, 173, 173 a, 183, 185, 187 and 188 of army pension regulations, 1961 - petitioner invalidated out of service with 40% disability for two years - claim for disability pension rejected by chief controller of defense accounts (ccda) - petitioner advised to file appeal within 6 months if aggrieved by rejection of claim - petitioner did not prefer appeal - instead petitioner sent lawyer's notice to respondents for grant of disability pension - senior record officer informed petitioner that after re-examination of issue for grant of pension petitioner not found entitled for same -.....madan b. lokur, j.1. by this judgment and order, we propose to deal with the matter relating to grant of disability pension to army personnel below officer rank so that several similar petitions raising similar questions as have been raised in this petition are disposed of.-i-facts 2. the facts giving rise to this writ petition under article 226 of the constitution lie in a narrow compass. the petitioner was enrolled in the army as a regular combatant on 11th january, 1984. before his enrolment, he was subjected to a detailed medical examination. the petitioner was found medically fit at the time of his joining the army.3. in the year 1990, the petitioner developed neurotic depression. he was admitted to the army hospital on 7th december, 1990 at nazirabad. thereafter, he was transferred.....

Judgment:

Madan B. Lokur, J.

1. By this judgment and order, we propose to deal with the matter relating to grant of disability pension to Army personnel below officer rank so that several similar petitions raising similar questions as have been raised in this petition are disposed of.

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Facts

2. The facts giving rise to this writ petition under Article 226 of the Constitution lie in a narrow compass. The Petitioner was enrolled in the Army as a regular combatant on 11th January, 1984. Before his enrolment, he was subjected to a detailed medical examination. The Petitioner was found medically fit at the time of his joining the Army.

3. In the year 1990, the Petitioner developed neurotic depression. He was admitted to the Army Hospital on 7th December, 1990 at Nazirabad. Thereafter, he was transferred to a hospital in Jodhpur on 30th December, 1990.

4. On 10thApril, 1991, the Petitioner was recommended for being invalided out from the Army by the Medical Board. The Graded Specialist (Psychiatry) opined that:-

'Taking into account his basic inadequate personality and the perennial nature of his domestic stressors which had precipitated and perpetuated the neurotic breakdown in a predisposed individual. It is strongly felt that he is incapable of any further improvement and his continuation in service will not be in the best interest of service.'

5. Pursuant to the recommendation of the Medical Board, the Petitioner was invalided out of service with40% disability for two years on 8th May, 1991, under Rule 13(3) of the Army Rules, 1954 read with paragraph III(iii) of the Table thereto.

6. The Petitioner claimed disability pension but his claim was rejected by the Chief Controller of defense Accounts (Pensions) on the ground that the disability suffered by him was not attributable to military service. The rejection of his claim was communicated to him by a letter of the Record Officer, Abhilekha Karyalay dated 30th November, 1991. The Petitioner was advised to file an appeal within 6 months if he was aggrieved by the rejection of his claim.

7. The Petitioner did not prefer any appeal. Instead, he issued a lawyer's notice to the Respondents for grant of disability pension. On 11th November, 1992, the Petitioner was informed by the Senior Record Officer, Abhilekha Karyalay that the issue of grant of disability pension to him was re-examined but he was not entitled to the same.

8. Aggrieved by the rejection of his claim for disability pension, the Petitioner filed a writ petition seeking a direction to the Respondents to grant him disability pension along with service pension with effect from the date of his retirement from service, viz., 9th May, 1991.

9. In the counter affidavit filed by the Respondents, it is averred that the Invaliding Medical Board opined that the disability of the Petitioner, namely, neurotic depression was neither attributable to nor aggravated by military service and it was a constitutional disorder not related to service. The disability was assessed at 40% for two years. The counter affidavit goes on to state that the claim of the Petitioner for disability pension was rejected by the pension sanctioning authority as the disability suffered by the Petitioner was not attributable to military service nor had it been aggravated by military service.

10. We heard learned counsel for the parties in his case and in the batch of similar cases on 12th, 23rd, 29thApril and 30thApril, 7th, 9th, 14th, 16th, 21st, 27th, 29thand 31st May, 2002 when we reserved judgment. Learned counsels placed a large number of rules, regulations and orders before us apart from citing a larger number of cases.

11. It may be mentioned here that we heard submissions mainly in cases pertaining to the Army. Most of the cases were with reference to personnel below officer rank. It appears to us, by and large, that the principles applicable to personnel below officer rank in the Army are the same for officers in the Army and for all personnel in the Air Force and Navy. thereforee, while the general principles that we have determined can be applied more or less uniformly, there may be some fine distinctions or some fine tuning that may be required in individual cases perhaps because of the language used in the regulations applicable to such persons. Because of the large number of cases involved, we do not propose to go into each case in detail and indeed it is not possible to do so.

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12. To appreciate the questions before us, it is necessary to have a look at the various statutory rules, regulations, orders, decisions and instructions on the subject. It is necessary to reproduce all the relevant extracts for the reason that many of the regulations, decisions and instructions are not available, let alone readily available. All sorts of decisions and instructions have been issued, most of which are fortunately in favor of the citizen, but he is unaware of them. Certain procedures have been laid down in various documents about which very few people seem to be aware.

Army Act, 1950

13. Retirement, release or discharge of Army personnel is provided for in Section 22 of the Army Act, 1950 (for short the Act).

14. This provision reads as under:

'22. Retirement, release or discharge. - Any person subject to this Act may be retired, released or discharged from the service by such authority and in such manner as may be prescribed.'

15. Section 191 of the Act empowers the Central Government to make rules for the purpose of carrying out the provisions of the Act.

16. Section 191(2)(a) of the Act is relevant and this reads as under:

'191. Power to make rules-

(1) xxx xxx xxx

(2) Without prejudice to the generality of the power conferred by Sub-section (1), the rules made there under may provide for-

(a) the removal, retirement, release or discharge from the service of persons subject to this Act;

(b) to (m) xxx xxx xxx'

17. In exercise of powers conferred by Section 191 of the Act, the Central Government has framed the Army Rules, 1954 (for short the Rules). Rule 13 of the Rules lists out the authorities competent to authorize the discharge, inter alia, of personnel below officer rank. For our purposes, it is enough to note that the Commanding Officer is the competent authority to authorize the discharge of a personnel below officer rank if he is found to be medically unfit for further service, on the recommendation of an Invaliding Medical Board (for short IMB). The Commanding Officer is defined to mean, inter alia, the officer commanding the corps or department to which the person to be discharged belongs.

18. Section 192 of the Act enables the Central Government to make regulations for all or any of the provisions of the Act, other than those specified in Section 191 of the Act. Since the Rules do not provide for grant of pension and the eligibility requirements for grant of pension, the Central Government has framed various regulations in this regard, which we shall advert to. These include, amongst others.

(i) defense Services Regulations - Pension Regulations for the Army, 1961 - Part I and II (for short the Pension Regulations).

(ii) defense Services Regulations - Regulations for the Medical Services of the Armed Forces, 1962.

19. It is not necessary to decide whether the Regulations framed under Section 192 of the Act are administrative instructions or not. Suffice it to say that they are, in any cade, supplemented with various Army Orders and other administrative decisions taken by the Central Government from time to time. Hopefully, we shall be able to deal with the relevant instructions and decisions in this regard.

Army Order No. 3/1989

20. Before analyzing the various regulations and rules on the subject, it may be worthwhile to understand the procedure followed when a person is to be released from military service. We have been given to understand that the relevant procedures are contained in Army Order No. 3/1989.

21. Initially, a release medical examination is conducted and the report is recorded in form AFMSF-18. If the individual is physically fit, he is not required to undergo any further examination. But, if he is found to be in a low medical category, he will have to go through a Release Medical Board. The result of the Release Medical Board is recorded in the form AFMSF-16.

22. The proceedings of the Release Medical Board (AFMSF-16) are required to be approved and subsequently confirmed. The result of the release medical examination (AFMSF-18) is given to an individual and an extract of the proceedings of the Release Medial Board (AFMSF-16) is also supplied to the individual, but not the entire proceedings.

23. The Release Medical Board is required to assess the percentage of the disability, the period for which the disability is expected to continue and also express an opinion whether the disability was attributable to or aggravated by military service.

Medical Board

24. Our attention has been drawn to paragraph 419 of the defense Services Regulations - Regulations for the Medical Services of the Armed Forces, 1962. This relates to the composition of the Medical Board and sub-paragraph (a) and (b) thereof read as follows:-

'(a) Medical Boards will ordinary be composed of a President and two members but if this number be not available, a board may consist of two medical officers only. However, Medical Boards convened for the purpose of invaliding from the service, civilian Gazetted officers in Armed Forces employ, will invariably consist of a President and two members and will include the requisite specialist or specialists.

(b) President of Medical Boards. - The President of the Medical will ordinarily be of the rank of Major or above or equivalent rank of the Navy or Air Force. For invaliding officers, the President must be the C.O. (Commanding Officer) of the Hospitals of the rank of Lt. Col. or equivalent or above.'

25. The functions of the Medical Board have been detailed in the Guide to Medical Officers (Military Pensions), 1980. The preface to this Guide states:-

'This publication is intended as a general guide for assessment of individual disabilities and their casual (causal) relationship. The manual contains broadly agreed principles of Government of India in the context of current consensus of medical opinion. Certain significant variations have been made from the previous edition published in 1955, in the light of recent medical knowledge.'

26. Hopefully, this Guide has been upheld since its publication in 1981 but we have not been given any information in this respect.

27. The functions of the Medical Board have been stated in paragraph 8 of this Guide.

28. Paragraph 8 reads as follows:-

'8. The function of a medical board is to inform and advise the Pension Sanctioning Authority on the basis of all available records and their own clinical examination concerning:-

(a) The clinical history and condition of a member on account of a disability or disabilities alleged to be related to service.

(b) The particular evidence on which the Board base their opinion on the relation or otherwise, of a disability to service.

(c) The degree of permanent or temporary impairment of function produced by a disability with particular reference to the amount of the impairment resulting from service. In cases of reassessment by resurvey medical boards the amount of impairment due to extraneous factors will have to be separated from those due to service.

(d)(i) The refusal of a member to undergo medical treatment (including operation) which would have cured or improved the disability or resulted in arresting further deterioration of the condition.

(ii) Retardation of the cure or aggravation of the disability by the member.'

Pension Regulations Part I

29.The preface to the Pension Regulations states that they are divided into two parts as under:

Part I - Containing regulations regulating the pensionary awards of personnel of the Regular Army, the defense Security Corps and the Territorial Army.

Part II - Containing regulations relating to delegation of powers and procedure affecting the personnel whose pensions are regulated by the regulations in Part I.

30. Part I of the Pension Regulations consists of six chapters and five appendices. Each chapter contains sections and sub-sections.

31. Chapter I is titled 'General' and Regulation 1 therein gives the extent of applicant of the Pension Regulations in the following words:

'1. Unless otherwise provided, these Regulations shall apply to the personnel of the Army and all claims to pension, gratuity or allowance shall be regulated by the regulations in force at the time of an individual's retirement, release, resignation, discharge, deathetc., as the case may be.'

32. Chapter II relates to Commissioned Officers with whom we are not presently concerned.

33. Chapter III relates to Junior Commissioned Officers, Other Ranks and Non-Combatants (Enrolled). This chapter consists of five sections.

These are:

Section I - General (Regulation 112 to 126)

Section II - Service Pension and Gratuity (Regulation 127 to 157)

Section III - Special Pension and Gratuity (Regulation 164 to 168)

Section IV - Disability Pensionary Awards (Regulation 172 to 189)

Section V - Special Pensionary Awards (Regulations 206 to 259)

34. The regulations missing from the above table are those that have perhaps been deleted.

35. Chapter IV relates to the defense Security Corps while Chapter V relates to the Territorial Army.

36. We are really concerned with Section I and Section IV of Chapter III of the Pension Regulations. In Section I, the only regulation which is material for our purpose is Regulation 112 dealing with the extent of application of the chapter.

37. Regulation 112 reads as follows:

'112. Unless otherwise provided, the regulations in this chapter shall apply to all Junior Commissioned Officers, Officers, Other Ranks and Non-Combatants (Enrolled) who were already serving on regular terms/engagements on the 1st June 1953, as well as those who either joined or join service on or after that date and serve on regular terms/engagements or are brought on to such terms/engagements after that date.

Provided that xxx xxx xxx (not relevant)'

38. Regulation 172, which is a part of Section IV, provides that the regulations in that section shall apply, inter alia, to individuals referred to in Regulation 112.

39. The primary conditions for the grant of disability pension are laid down in Regulation 173, which reads as under:-

'173. Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 per cent or over.

The question whether a disability is attributable to or aggravated by military service shall be determined under the rules in Appendix II.'

40. At this stage, it may be necessary to mention that of the five appendices to the Pension Regulations, we are concerned only with Appendix II which contains the Entitlement Rules which 'apply in cases where the disablement or death, on which the claim of casualty pensionary award is based, takes place on or after the 1st April 1948'. These Entitlement Rules are hereinafter referred to as the 1961 Entitlement Rules.

41. In the Written Submissions handed over to us in CW No. 2522 of 1998 (Sub. Balbir Singh v. Union of India and Ors.), there is a reference to Regulation 173-A of the Pension Regulations. We do not find a mention of this particular regulation anywhere else.

42. We reproduce Regulation 173-A here for convenience:

'173-A. Individuals who are placed in a lower medical category (other than 'E') permanently and who are discharged because no alternative employment suitable to their low medical category could be provided, shall be deemed to have been invalided from service for the purpose of the entitlement rules laid down in Appendix II to these regulations.'

43. Regulation 183 of the Pension Regulations gives the monthly rates of disability pension consisting of service and disability elements. This, we are sure, must have increased from time to time since 1961, and is, thereforee, not reproduced here.

44. Regulation 185 specifies the period for which disability pension is granted. If the disability is permanent, the disability pension is granted for life, otherwise for a period of three years. The period may, of course, vary from case to case.

45. Regulation 185 reads as follows:

'185. (a) If the disability is accepted as attributable to military service and is regarded as incapable of improvement, disability pension may be granted for life (but see Regulation 188).

Otherwise, an award will normally be made for a period of three years from the date from which a disability pension is admissible or, in cases where a disability pension was in issue for a specified period, from the date of expiry of the previous awards.

Provided that, in cases where the duration of the disability at the accepted degree of disablement is considered to be less than three years, the period of an award, calculated with reference to the date of the last medical board, shall not exceed the period of duration of the disability at that degree.

(b) An award may, however, be made in any individual case for such longer or shorter period as may be prescribed by the President either generally or in respect of any particular disability.

(c) If the disability is accepted as aggravated by military service, the duration of an award shall be determined with due regard to the relevant provisions in the entitlement rules, vide Appendix II.

46. The degree of disability may change over a period of time. If the disability of an individual increases, then the case of such an individual is covered by Regulation 187. Where the disability decreases, then the case of the individual is covered by Regulation 188.

47. These two regulations read as follows:

'187. (a) If, at any time, an increase which is properly referable to service factors occurs in the degree of disablement, a disability pension may be granted, or the pension already granted may be increased, to the appropriate higher rate, with effect from the date of the medical board on the basis of whose findings the competent authority accepts the higher degree of disablement.

(b) When a disability pension is granted in accordance with Clause (a) above, any service gratuity or special gratuity paid shall be adjusted against the service element of disability pension which shall be held in abeyance till the entire gratuity has been recovered.

188.(a) Should a competent authority decide as a result of further medical examination of the individual for any purpose by a properly constituted medical board that the disability has disappeared, is reduced, or has become capable of improvement, the original life pension may be modified accordingly with effect from the date of assembly of the medical board.

(b) In case a pensioner who has been asked to appear before a medical board in accordance with Clause (a) above refuses to do so, the disability pension shall be suspended from the date of such refusal. If, however, he had rendered 10 years (15 years in the case of a Non-Combatant (Enrolled) or more of qualifying service, the special pension admissible, under Regulation 167 read with Regulation 165 shall be granted from that date.'

48. The main controversy, so far as this batch of cases is concerned, is the meaning and interpretation of the 1961 Entitlement Rules contained in Appendix II to the Pension Regulations and referred to the Regulation 173, Regulation 173-A and Regulation 185.

1961 Entitlement Rules

49. The 1961 Entitlement Rules are a compilation of nine rules and an annexure thereto. They are applicable, as already mentioned above, where the disablement or death takes place on or after 1st April, 1948.

50. Rule 1 makes it clear that the entitlement to disability pension will be governed by the 1961 Entitlement Rules and that 'Invaliding from service is a necessary condition for the grant of a disability pension.'

51. Rule 2 is of some importance because it is in the words used therein that there is a serious controversy.

52. Rule 2(a) reads as under:-

'2. Disablement or deathshall be accepted as due to military service provided it is certified that:-

(a) 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;

(b) the deathwas due to or hastened by -

(i) a wound, injury or disease which was attributable to military service; or

(ii) the aggravation by military service of a wound, injury or disease which existed before or arose during military service.'

53. This particular Rule, however, cannot be read in isolation. It has to be read with Rules 3 and 4. Rule 3 requires that there must be a casual connection between the disablement and military service for attributability or aggravation to be conceded. Rule 4 requires that all relevant evidence has to be taken into account for deciding the issue of entitlement and that the benefit of reasonable doubt will be given to the claimant.

54. Rules 3 and 4 of the 161 Entitlement Rules read as follows:-

'3. There must be a casual connection between disablement and military service for attributability or aggravation to be conceded.

4. In deciding on the issue of entitlement all the evidence, bothdirect and circumstantial, will be taken into account and the benefit of reasonable doubt will be given to the claimant. This benefit will be given more liberally to the claimant in field service cases.'

55. Rule 5 relates to post-discharge claims, that is, cases where the disease did not lead to the claimant's discharge from service. This particular Rule is not the subject of any controversy.

56. Rule 6 concerns cases of disability pension arising out of accidents. This Rule requires that the claimant must be 'on duty' when he suffered the injury or accident to become entitled to disability pension. The words 'on duty' have been explained in Rule 6(b). A claimant is 'deemed to be on duty' if he fulfills the requirements of Rule 6(c). A claimant may not strictly be on duty and yet would be entitled to claim disability pension under certain circumstances mentioned in Rule 6(d). Rule 6 has two 'Notes' below it relating to personnel participating in activities such as sports, mountaineering etc. but we are not concerned with these situations.

57. Rule 6, minus the two Notes below, it reproduced here for its proper understanding:-

'6. In respect of accidents the following rules will be observed:-

(a) Injuries sustained when the man is on duty will be deemed to have arisen in or resulted from Army/Naval/Air Force Service unless they were self-inflicted or due to serious negligence or misconduct in which case the question of withholding the pension in full or in part will be considered.

(b) A person subject to the Disciplinary Code of the Armed Forces is 'on duty' during the period of time when he is in the course of performance of an official task or a task the failure to do which would constitute an offence triable under the Disciplinary Code applicable to him. The course of performance of a task includes the journey or transport by a reasonable route from one's quarters to and back from the appointed place of duty under organized arrangements.

(c) A person is also deemed to be 'on duty' during the period of participation in recreation, organized or permitted by Service Authorities and of traveling in a body or singly under organized arrangements. A person is also considered to be 'on duty' when proceeding to his leave station or returning to duty from his leave station at public expense.

(d) An accident which occurs when a man is not strictly 'on duty' as defined may also be attributable to Service, provided that it is not an accident which can be attributed to risk common to human existence in modern conditions in India, unless such risk is definitely enhanced in kind or degree by the nature, conditions, obligations or incidents of the person's service. Thus, for instance, where a person is killed or injured by another party by reason of belonging to the Armed Forces, he shall be deemed 'on duty' at the relevant time.

This benefit will be given more liberally to the claimant in cases occurring on active service as defined in the Army/Air Force Act.'

58. Rule 7 deals with cases of disability pension arising out of diseases suffered by personnel. Broadly speaking, the disease should have arisen in military service or that military service should have influenced its course.

59. Rule 7 reads as follows:

'7. In respect of diseases, the following rules will be observed:

(a) Cases, in which it is established that conditions of military service did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will fall for acceptance on the basis of aggravation.

(b) A disease which has led to an individual's discharge or deathwill 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.

(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.

(d) In considering whether a particular disease is due to military service, it is necessary to relate the established fats, in the a etiology of the disease, and of its normal development, to the effect that conditions of service, e.g., exposure, stress, climate, etc., may have had on its manifestation. Regard must also be had to the time factor. (Also see Annexure)'

60. As many as eight broad categories of diseases are mentioned thereafter. These are:-

(i) Common diseases known to be affected by exposure to weather.

(ii) Common diseases known to be affected by stress and strain.

(iii) Diseases endemic to certain areas.

(iv) Diseases due to infections in service.

(v) Diseases known to be affected by dietary compulsions.

(vi) Diseases which rule their course independently of external circumstances.

(vii) Venereal diseases.

(viii) Invalidation on account of indulgence in drugs or drinks.

61. The Annexure gives a list of diseases associated with each of the above 'conditions of service'. It appears to us that these 'conditions of service' can only be illustrative and not exhaustive. The condition of service can only be one of the factors to be kept in mind while dealing with the case of a person who is disabled while in military service. We say this because it does not appear possible to classify all 'conditions of service', nor is it possible to classify all diseases associated with each condition of service. Medical science was not that advanced in 1961 nor has it reached its limit even today. Even otherwise Rule 7(d) does not purport to be definitive of all diseases, nor was any such case set up by the Respondents in response to any writ petition.

62. It must also be appreciated that that merely because a particular disease manifests itself, it does not mean that it has been caused by a particular 'condition of service'. For example, Rule 7(d) and the Annexure referred to therein indicate that duodenal ulcer is a disease affected by dietary compulsions. If an individual develops duodenal ulcers, no final conclusion can be drawn that his disease is attributable to or aggravated by dietary compulsions to which he was exposed during military service. His diet may be one of the factors to be kept in mind while deciding whether his ulcers are attributable to or aggravated by military service, but it is not the only factor.

63. The annexure also give a list of diseases not normally affected by service. These include malignant disease like cancer and carcinoma, leukemia etc. and diseases relating to the eyes such as hypermetropia, myopia, astigmatism etc.

64. Rule 8 relates to the unforeseen effects of service medical treatment, a subject with which we are not presently concerned. Rule 9 deals with the actual assessment of the disability, which is said to be the estimate of the degree of disablement it causes. There is no controversy between the parties with regard to this Rule also.

Pension Regulations Part II

65. Part II of the Pension Regulations contains regulations relating to the delegation of powers and pension procedure. part II consists of seven chapters and four appendices. Chapter I is a general chapter. We are only concerned with Chapter II of Part II of the Pension Regulations.

66. Chapter II consists of three sections. Section I deals with general regulations. Regulation 12 contained therein relates to payment of pension.

67. Regulation 12 reads as under:-

'12. Every sanction to the grant of a pension, allowance or gratuity shall be communicated to the Accounts Officer concerned who will arrange for its payment.'

68. Section II relates to officers and their families while Section III concerns Junior Commissioner Officers, Other Ranks and Non-Combatants (Enrolled) and their families. Section III consists of three regulations, namely, Regulations 20, 21 and 22.

69. Regulation 20 deals with the procedure to be followed for the submission and disposal of applications while Regulation 21 relates to the pension sanctioning authority. Regulation 22 identifies the competent authority to exercise powers for the purpose of various regulations.

70. Section III reads as follows:-

'SECTION III - JUNIOR COMMISSIONED OFFICERS, OTHER RANKS AND NON-COMBATANTS (ENROLLED) AND THEIR FAMILIES

Procedure for the submission and disposal of applications for various pensionary awards

20. The procedure to be followed for the submission and disposal of applications for various pensionary awards shall be as laid down in Table IV.

The instructions printed on the prescribed forms shall be complied with when applications are submitted.

Powers to sanction various pensionary awards

21. Unless otherwise provided, the grant of a pension, gratuity or allowance which is admissible under the regulation specified in column 2 may be sanctioned by the authorities designated in column 4 of Table V.

Competent Authority

22. The authorities competent to exercise powers for the purpose of various regulations in respect of Junior Commissioned Officers, Other Ranks and Non-Combatants (Enrolled) and their families shall be as indicated in column 4 of Table VI.'

71. Table IV deals with the procedure for submission and disposal of applications. In so far as we are concerned this reads as follows:-

Table IV(Referred to in Regulation 20)Item No.Nature of claimForms of application and supporting documentsTo whom application should be submittedRemarks4Disability(i) Invaliding medical board proceedings -A.RM.S.P.-16.From the Record Officer to the Controller of defense Accounts (Pensions).(ii) Medical categorisation form A.F.B.-179(c).(iii) Medical History Envelope A.F.M.S.F.-1 together with other medical documents as may be prescribed from time to time.(iv) Service and casually form - 1AFF-958.(v) In case of disease:-OC., Unit and Medical Officer's Report on the case- IAFM-1231.In case of injuries:-Injury report-IAFY-2006, or where the injury report has not been rendered, such other documentary evidence relating to the injury, as may be available. Proceeding of the court of enquiry -IAFR-931, where held.(vi) Extracts from Part II orders or from the casually lists received, if the casualty is classified as 'Battle Casualty' or 'Battle Accident'.(vii) Sheet roll (including Enrolment Form, Recruit Progress Card and Conduct Sheet - AFB 122-M).(viii) Last pay certificate IAFA-447.'

72. Table V relates to the pension sanctioning authorities. In so far as it is material for our purpose this reads as follows:-

Table V(Referred to in Regulation 21)Item Reference to No. RegulationsNature of the award and categories of personnel in respect of whom the authorities specified in column 4 are competent to sanction pension etc.Authorities competent to sanction the grant of pension etc.1. Chapter III Part IJunior Commissioned Officers, Other Ranks, Reservists and Non-Combatants (Enrolled)All awardsController of defense Accounts (Pensions); and Controller of defense Accounts (Other Ranks) or other officers authorised by him in the case of service gratuity other than in invaliding cases.

73. Table VI specifies the competent authority to exercise powers in respect of various regulations. The extract relating to and relevant forgrant or re-assessment of disability pension (Regulations 187 and 188 of the Pension Regulations Part I) reads as follows:-

Table VI(Referred to in Regulation 22)Item No.Reference to Regulation No.Categories of personnel in respect of whom competent authority shall exercise its powersCompetent authorityRemarks13187Junior Commissioned Officers, Other Ranks and Non-Combatants (Enrolled)Controller of defense Accounts (Pensions)14188Junior Commissioned Officers, Other Ranks and Non-Combatants (Enrolled)Controller of defense Accounts (Pensions)

74. The effect of Regulations 21 and 22 of the Pension Regulations Part II is that the competent authority to sanction disability pension in the case of persons like the Petitioners is the Controller of defense Accounts (Pensions) (hereinafter referred to as CDA). He is also the competent authority to increase or reduce the quantum of disability pension.

1982 Entitlement Rules

75. The 1961 Entitlement Rules have since been superseded by the Entitlement Rules for Casualty Pensionary Awards to the Armed Forces Personnel, 1982 (for short the 1982 Entitlement Rules). These Rules were circulated by a letter dated 22nd November, 1983 by the Joint Secretary to the Government of India, Ministry of defense.

76. The 1982 Entitlement Rules are a set of 27 rules. The most significant departure between these Rules and the 1961 Entitlement Rules is that these Rules provide for an appeal procedure, an aspect that we will consider later.

77. During the earlier part of the hearing of these cases, no one brought the 1982 Entitlement Rules to our notice. Later, we chanced upon them in a recently published book. When this was mentioned to learned counsel for the Respondents, we are handed over the 1982 Entitlement Rules, along with the amendments, corrigenda etc. Incidentally, these amendments, corrigenda etc. find no mention in the book we chanced upon. We are mentioning this only to highlight the fact that the failure of the Respondent to make available relevant decisions taken by them about the grant of disability pension helps no one. On the contrary, ti only adds to the confusion, as has happened in this batch of cases. Disabled Army personnel have had to approach the Courts, spend energy and money to agitate for their disability pension. The Respondents have also had to spend huge amounts of money in defending such cases. The Courts have been begged down with avoidable litigation. And all this, without anyone knowing the latest rules and regulations or whether the 1961 Entitlement Rules or the 1982 Entitlement Rules are applicable to him. We are of the view that the Respondents lack of transparency on so minor a matter is solely to be blamed for this colossal waste of everybody's time and energy.

78. We may point out that it was the frequency and unending stream of disability pension cases that compelled us to take up this batch of cases and settle some outstanding issues once and for all. Hopefully, our efforts will go some distance in making the Respondents realize and appreciate their duties and responsibilities to disabled personnel.

79. The 1982 Entitlement Rules, as far as we are aware, have been amended five times since they came into operation. The amendments were made on 21st August, 1984 (Rules 2 and 3), 3rd February, 1992 and 24th August, 1992 [Rule 12(e)], 20th June, 1996 (Rule 14) and 21st June, 1996 (Rule 17).

80. Rule 1 of the 1982 Entitlement Rules makes it clear that they will 'apply to service personnel who become non-effective on or after 1st January, 1982.'

81. Rule 2 says:-

'2. Pension Regulations for the Army Part I (1961), and corresponding Regulations for the Navy and the Air Force will be amended in due course.'

82. Apart from Regulation 173-A, whether any other amendments have been made or not is anybody's guess.

83. Rule 3 relates to the applicability of the 1982 Entitlement Rules. Rule 3(ii) is of some importance. This reads as follows:-

'3. 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) xxx xxx xxx

(ii) during the period from 1.4.1948 to 31.12.1981, which will be dealt with in accordance with the entitlement rules promulgated in the Ministry of defense (Pensions Branch) letter No. 138999/1/PC, dated 18th April 1950, as amended from time to time; (reproduced as Appendix II to PRA Pt (1) (1961) and

(iii) xxx xxx xxx'

84. Rule 4 reiterates the requirement of Rule 1 of the 1961 Entitlement Rules, namely, that 'Invaliding from service is a necessary condition for grant of a disability pension.'

85. Rule 5 is of considerable significance since it explains the 'approach' to the question of entitlement to casualty pensionary awards and evaluation of disabilities. Briefly, the presumption is that a person is in sound physical and mental condition before entering service and that any deterioration in his health is due to military service.

86. Rule 5 reads as under:-

'5. The approach to the question of entitlement to casualty pensionary awards and evaluation of disabilities 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.'

87. Rule 6 reiterates the statement of Rule 2 of the 1961 Entitlement Rules to the effect that death or disablement shall be accepted as due to military service if it is certified to be so. The addition now made is that while the 1961 Entitlement Rules did not specify the certifying authority, Rule 6 of the 1982 Entitlement Rules states that the certifying authority will be the 'appropriate medical authority.'

88. Rules 7 and 8 of the 1982 Entitlement Rules reiterates Rules 2 and 4 of the 1961 Entitlement Rules inasmuch as contemporary official records can be supplemented with other reliable corroborative evidence and a casual connection may be conceded between death or disablement if so certified by the appropriate medical authority.

89. Rule 9 is framed in the negative so that an individual is not required to prove his entitlement to disability pension.

90. Rule 9 reads as follows:-

'9. The claimant shall not be called upon to prove the conditions of entitlement. 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.'

91. Rules 10 and 11 relate to claims arising post discharge. We are not presently concerned with such cases.

92. The words 'on duty' were earlier defined and explained in Rule 6 of the 1961 Entitlement Rules and included deeming provisions. Now, 'duty' has been defined quite clearly in Rule 12 of the 1982 Entitlement Rules as under (minus the two Notes):-

'12. A person subject to the disciplinary code of the Armed Forces is on 'duty':-

(a) When performing an official task or a task, failure to do which would constitute an offence, triable under the disciplinary code applicable to him.

(b) When moving from one place of duty to another place of duty irrespective of the mode of movement.

(c) During the period of participation in recreation and other unit activities organized or permitted by Service Authorities and during the period of traveling in a body or singly by a prescribed or organized route.

(d) When proceeding from his duty station to his leave station or returning to duty from his leave station, provided entitled to travel at public expense i.e. on railway warrant, on concessional voucher, on cash TA (irrespective of whether railway warrant/cash TA is admitted for the whole journey or for a portion only), in Government transport or when road mileage is paid/payable for the journey.

(e) When journeying by a reasonable route from one's official residence to and back from the appointed place of duty irrespective of the mode of conveyance, whether private or provided by the Government.

(f) An accident which occurs when a man is not strictly 'on duty' as defined may also be attributable to service, provided that it involved risk which was definitely enhanced in kind or degree by the nature, conditions, obligations or incidents of his service and that the same was not a risk common to human existence in modern conditions in India. Thus for instance, where a person is killed or injured by another party by reason of belonging to the Armed Forces, he shall be deemed 'on duty' at the relevant time. This benefit will be given more liberally to the claimant in cases occurring on active service as defined in the Army/Naval/Air Force Act.'

93. Rule 12(e) reproduced above is as amended on 3rd February, 1992 effective from 24th August, 1992.

94. Rule 12(d) appears to have caused the Respondents some difficulty in interpretation, particularly the expression 'entitled to travel at public expense.' By a letter dated 27th October, 1998 issued by the Under Secretary to the Government of India, Ministry of defense it was, thereforee, explained that this expression.

'..... implies that once an individual subject to Army/Navy/AF Act is sanctioned leave by competent authority and he/she is entitled to travel from his/her duty station to leave station or vice versa on availing warrant/concession voucher or Cash TA etc. he/she becomes entitled to travel at public expense irrespective of whether such an individual has obtained/utilized railway warrant/concession voucher/Cash TA etc or not.'

95. The aforesaid letter also laid down the guidelines for the applicability of the revised interpretation (which is to the benefit of disabled personnel and, thereforee, binding on the Respondents) as under:-

'2. The following guidelines are given for applicability of revised interpretation correctly while deciding the cases:

(a) All Army personnel while traveling between their place of duty to leave station and vice-versa are to be treated on duty irrespective of whether they are in physical possession of railway warrant/concession vouchers/Cash TA etc or not. An individual on authorised leave would be deemed to be entitled to travel at public expense.

(b) The time of occurrence of injury should fall within the time an individual would normally take in reaching the leave station from duty station or vice-versa using the commonly authorised available mode(s) of transport. However injury beyond this time period during the leave would not be covered.

(c) The provisions of this rule are applicable only when journey is undertaken by the shortest possible routes. Any deviation from the shortest routes will require sanction of the competent authority.

(d) Where an individual is recalled from leave for reasons beyond his own control or returns to duty station earlier voluntarily, benefit would be given if sanction of the competent authority exists for the same.

(e) Where more than one mode of transport exists for going to/coming from leave station, the benefit should be given irrespective of the mode of transport chosen. For instance, journey by road is at times more convenient than by train. In case an individual opts for the most convenient mode of transport, the benefit should be given to the individual. This benefit should also be given to the individual where dislocation of normal traffic is due to strike, flood and other natural calamities and one is compelled to travel by unconventional mode of transport due to reasons beyond one's own control.

3. These provisions shall be made applicable to cases occurring on or after the issue of these orders. Pending cases with the Ministry on the date of issue of this order will also be decided and regulated under the revised orders.'

96. Rule 13 provides that injuries and accidents sustained while on duty will be deemed to have resulted from military service. The cause of the injury would, however, have a bearing on the quantum of disability pension to be awarded.

97. Rule 13 reads as follows:-

'13. In respect of accidents or injuries, the following rules shall be observed:-

(a) Injuries sustained when the man is 'on duty' as defined, shall be deemed to have resulted from military service, but in case of injuries due to serious negligence/misconduct the question of reducing the disability pension will be considered.

(b) In cases of self-inflicted injuries whilst on duty, attributability shall not be conceded unless it is established that service factors were responsible for such action; in cases where attributability is conceded, the question of grant of disability pension at full or at reduced rate will be considered.'

98. Rule 14 relates to disability caused by diseases. A substantial change has been made in the 1982 Entitlement Rules as against the 1961 Entitlement Rules. The Rules originally framed in 1982 has further been amended by a corrigendum dated 20th June, 1986 issued by the Ministry of defense, Government of India.

99. Rule 14 as it exists today with effect from the date of the promulgation of the 1982 Entitlement Rules reads as follows:-

'14. In respect of diseases, the following Rules will be observed:-

a) For acceptance of a disease as attributable to Military service, the following two conditions must be satisfied simultaneously:-

(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.

b) If medical authority holds, for reasons to be stated, that the disease although present at the time of enrolment could not have been detected on medical examination prior to acceptance for service, the disease, will not be deemed to have arisen during service. In case where it is established that the conditions of military service did not contribute to the onset or adversely affect the course of disease, entitlement for casualty pensionary award will not be conceded, even if the disease has arisen during service.

c) Cases in which it is established that conditions of Military service did not determine or contribute to the onset of the disease but, influenced the subsequent course of the disease, will fall for acceptance on the basis of aggravation.

d) In case of congenital, hereditary, degenerative and constitutional diseases which are detected after the individual has joined service, entitlement to disability pension shall not be conceded unless it is clearly established that the course of such disease was adversely affected due to factors related to conditions of military service.

2. These provisions will be effective from the date of promulgation of the Entitlement Rules, 1982. The pending cases shall, be decided as per these provisions.'

100. Rule 15 of the 1982 Entitlement Rules places the equivalent Rule 7(d) of the 1961 Entitlement Rules in a compressed form.

101. Rule 15 reads as follows:-

'15. The onset and progress of some diseases are affected by environmental factors related to service conditions, dietic compulsions, exposure to noise, physical and mental stress and strain. Disease due to infection arising in service, will merit an entitlement of attributability. Nevertheless, attention must be given to the possibility of pre-service history of such conditions which, if approved, could rule out entitlement of attributability but would require consideration regarding aggravation. For clinical description of common diseases reference shall be made to the Guide to Medical Officers (Military Pensions) 1980, as amended from time to time. The classification of diseases affected by environmental factors in service is given in Annexure-III to these rules.'

102. Annexure-III to the 1982 Entitlement Rules (Annexure-I and II having been deleted earlier) classifies the various diseases as follows:-

(a) Diseases affected by climatic conditions.

(b) Diseases affected by stress and strain.

(c) Diseases affected by dietary compulsions.

(d) Diseases affected by training, marching, prolonged standing etc.

(e) Environmental diseases.

(f) Diseases affected by altitude.

(g) Diseases affected by service in submarines and in diving.

(h) Diseases affected by service in flying duties.

(j) Diseases not normally affected by service (including those pertaining to the eyes)

103. Rule 16 pertains to communicable diseases and diseases caused by infection, with which we are not presently concerned.

104. Rule 17 is a new provision and, if faithfully implemented, it would have reduced much litigation. The Rules as ti was originally promulgated in 1982 has since been completely amended by a corrigendum dated 21st June, 1996 issued by the Ministry of defense, Government of India. This corrigendum is effective from the date of promulgation of the 1982 Entitlement Rules and reads as follows:-

'Medical Opinion and Competent Medical Authorities

17(a) For the purpose of these rules, the following authorities shall be the Appropriate/Competent Medical Authorities for giving medical opinion on the aspects of assessment of disability and acceptance of death/disablement due to causes attributable to/aggravated by military service:-

(i) In respect of initial claims of Commissioned Officers Medical Advisor (Pension)/Jt.Dir.AFMS (Pension) in the Office of the Dir.General, Armed Forces Medical Services (DGAFMS) (ii) IN respect of initial claims of personnel below Officer rank Medical Advisor (Pension)/Jt.Din AFMS(Pension) attached to the Office of Chief CDA (Pensions). (iii) At the First Appeal stage Dy.DGAFMS (Pension) in the office of DGAFMS (iv) At the Second Appeal stage Dir.General Armed Forces Medical Services (DGAFMS) (b) At the time of invalidment/release of a service personnel medical views on attributability/aggravation and degree of disability shall be given by the Invaliding Medical Board (IMB)/Release Medical Board (RMB). The findings of the IMB/RMB/RSMB which are recommendatory in nature shall be reviewed by the Competent Medical Authority at the time of consideration of Initial claim/Appeal for grant of disability pension. The Competent Medical Authority may for reasons to be recorded in writing, alter or modify the recommendations of IMB/RMB/RSMB/Lower Medical Authorities.

(c) The Competent Medical Authorities after review of the IMB/RMB/RSMB proceedings/findings of the lower Medical Authorities, study of related medical/service documents, the clinical profile recorded and keeping in mind the a etiology and nature of disease, shall evaluate the role played by service factors in the onset/progress of the disability. The recommendations of the Competent Medical Authority as accepted by the Pension Sanctioning Authorities i.e., Chief CDA (Pension)/Ministry of defense shall be final with regard to the entitlement and assessment of disability for the purpose of grant of disability pension.'

105. Rule 18 deals with a pre-disposition or inherent constitutional tendency, which is not a disease, but if there is a precipitating or causative factor in service which produces the disease then it would be attributable to service notwithstanding the inherent disposition.

106. Rule 18 reads as follows:-

'18. Predisposition: 'Predisposition' of 'inherent constitutional tendency' in itself is not a disease. And if there is a precipitating or causative factor in service which produces the disease, then it is attributable to service, notwithstanding the inherent disposition.'

107. Rule 19 relates to aggravation of diseases and this reads as follows:

'19. Aggravation: If it is established that the disability was not caused by service, attributability shall not be conceded. However, aggravation by service is to be accepted unless any worsening in his condition was not due to his service or worsening did not persist on the date of discharge/claim.'

108. Rule 20 concerns conditions of unknown a etiology while Rule 21 relates to a delay in diagnosis or the adverse effects of treatment (similar to Rule 8 of the 1961 Entitlement Rules).

109. Rule 22 is a rather lengthy rule relating to assessment of the degree of disability. However, what is of importance is the first part of Rule 22, which provides as follows:-

'Assessment of degree of disability is entirely a matter of medical judgment and is the responsibility of medical authorities.'

110. As already mentioned hereinabove, Rules 23 to 25 deal with appeals against the rejection of a disability claim. These are completely new provisions and their promulgation was necessary, but was apparently not brought to the notice of any Court, as yet.

111. These Rules provide as under:-

'23. Right of Appeal: Where entitlement is denied by the Pension Sanctioning Authority on initial consideration of the claim, the claimant has a right of appeal against decision on entitlement and assessment. Whereas for decisions on entitlement all concerned authorities have to give opinions, assessment of degree of disablement is entirely a matter of medical judgment and is the responsibility of appropriate medical authority.

24. Detailed procedure to be followed for appeals shall be issued by Ministry of defense from time to time. However, to avoid inordinate delay in taking final decisions on the disability/family pensionary claims, suitable time limits at each stage of the claim shall be laid down.

25(a). defense Minister's Appellate Committee on Pensions - DMACP shall deal with second or the final appeal on claim for casualty pensionary awards. This Committee consists of- Chairman RM/RRM Members URM Chiefs of Staff (Army, Navy & Air Force) defense Secretary Financial Adviser (DS) DGAFMS JAG (Three Services) (b) Appellate Committee for First Appeals ACFA shall deal with claims for casualty pensionary awards on first appeals. This Committee consists of: Chairman DS (Pensions), Ministry of defense dealing with pension cases. Members Director Personal Services, Army HQ and his counterparts in Naval and Air HQ dealing with pension cases. Deputy Director General (Pensions) of Office of DGAFMS Deputy Financial Adviser (Pensions).'

112. Rule 27 lays down the functions and responsibilities of various authorities such as the Services Headquarters, the Judge Advocate General and the Medical Authorities. Responsibility is fixed on each of these authorities and we hope and expect that while deciding the claims for disability pension, these three authorities will coordinate with each other to arrive at a correct decision.

113. Rule 27 reads as follows:-

'27. (a) Service HQ - Appropriate Service Authority shall be responsible for giving their views on matters relating to relevant service factors.

(b) Judge Advocate General (JAG) - He shall be responsible for giving opinion on legal matters.

(c) Medical Authority - Assessment of disablement and entitlement in case of disabilities other than injuries are purely medical issues. Views on such medical issues shall be given by the appropriate medical authorities as under:-

(i) Medical Boards shall give 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.'

Post 1st January, 1996 position

114. Pursuant to the recommendations of the Fifth Central Pay Commission as contained in paragraphs 164.10 and 164.22, the Ministry of defense issued a letter dated 7th February, 2001 for the implementation of these recommendations. The subject of this letter was regarding the finding of the Medical Boards - the intention being to bring finality to the recommendation of the Medical Boards, both in terms of attributability as well as the assessment with regard to percentage of disability.

115. Paragraph 10 of the letter dated 7th February, 2001 states that the provisions contained therein will be applicable to serving personnel who were in service on or after 1st January, 1996 and that cases already finalized will not be re-opened.

116. Paragraph 11 states that:

'11. These rules will be read in conjunction with Pension Regulations of the three Services, Entitlement Rules to Casualty Pensionary Awards to the Armed Forces Personnel, 1982 and Guide to Medical Officers (Military Pension) 1980, as amended from time to time.'

117. As regards injury cases, the decision on attributability will be taken by the authority next higher to the Commanding Officer of the injured. The assessment with regard to percentage of disability as recommended by the IMB and approved by the next higher medical authority will be final. Similarly, the proceedings of the Medical Board will be approved by the next higher authority than the one who constituted the Medical Board. There is, of course, a provision for review which may be asked for by the individual and a provision for reconsideration if there is a wide variation in the proceedings of the Medical Boards.

118. The relevant paragraphs of the letter dated 7th February, 2001 in this regard are as under:

'2. Attributability. Decision regarding attributability would be taken by the authority next higher to the commanding officer which in no case shall be lower than a brigade/sub area commander or equivalent.

3. Assessment. The assessment with regard to the percentage of disability as recommended by the Invaliding Medical Board/Release Medical Board as approved by the next higher medical authority, would be treated as final unless the individual himself requests for a review.

4. Approving Authority for Medical Boards. Medical Board proceedings in respect of the personnel of the three Services will be approved by the next higher medical authority than the one which consulted the board as heretofore. In case where disability is abnormally high or low, approving authority will refer the proceeding back to the medical boards for reconsideration. If required he may physically examine/get the individual re-examined to ascertain the correct position.'

119. As regards cases arising out of diseases contract, it has been stated that finality will attach to the views of the Medical Adviser (Pensions) in respect of Personnel Below Officer Rank and the Ministry of defense in respect of Commissioned Officers both with regard to attributability/aggravation and assessment of percentage of disability. There is a provision for reconsideration of the assessment in cases of wide variation.

120. The relevant paragraphs from the letter dated 7th February, 2001 are as follows:-

'5. Attributability/Aggravation. Attributability/ aggravation in respect of cases pertaining to invalidment owing to various diseases/retirement with various diseases shall continue to be adjudicated by MA (P) In respect of Personnel Below Officer Rank (PBOR) and by MOD in case of Commissioned Officers as hithertofore.

6. Assessment. The assessment with regard to percentage of disability as recommended by the Invaliding Medical Board/Release Medical Board and as adjudicated by MA (P) in respect of PBOR and MOD In case of Commissioned Officers would be treated as final and for life unless the individual himself requests for review, except in cases of disabilities which are not of a permanent nature. In the event of substantial difference of opinion between the Initial award given by the Medical Boards and MA (P), the case will be referred to a Review Medical Board. The opinion of the Review Medical Board, which will be constituted by DGAFMS as and when required shall be final.'

121. A reassessment of the disability will now be a one-time affair, rather than a periodic one, as in the past. This is provided for in paragraph 7 of the letter, which reads as under:-

'7. Re-assessment of Disability. There will be no periodical reviews by the Resurvey Medical Boards for re-assessment of disabilities. In cases of disabilities adjudicated as being of a permanent nature, the decision once arrived at will be final and for life unless the individual himself requests for a review. In cases of disabilities which are not of a permanent nature there will be only one review of the percentage by a Reassessment Medical Board, to be carried out later within a specified time frame. The percentage of disability assessed/recommended by the Reassessment Medical Board will be final and for life unless the individual himself asks for a review. The review will be carried out by Review Medical Board constituted by DGAFMS. The percentage of disability assessed by the Review Medical Board will be final.'

122. Significantly, it has been confirmed in paragraph 8 of the letter dated 7th February, 2001 that:-

'8. There will be no changes in the procedure for handling appeal cases and post discharge claims.'

Clarifications

123. It seems that in the actual working of the contents of the letter dated 7th February, 2001, the Controller General of defense Accounts (CGDA) required some clarifications. The Ministry of defense gave these by a letter dated 4th March, 2002.

124. In respect of the next higher medical authority and the next approving higher medical authority as mentioned in paragraphs 3 and 4 of the letter dated 7th February, 2001, it was clarified that for the IMB pertaining to PBORs, the position would be as follows:-

'(A) Army HQrs.

(a) Release Medical Board (RMB)

(i) xxx xxx xxx

(ii) xxx xxx xxx

(b) Invaliding Medical Board (IMB)

(i) xxx xxx xxx

(ii) PBOR:IMB held at Hospital underNext higher authorityConfirmed byAccepted byRemarksDivADMS (Div)--------The IMB Proceedings are sent to respective Record OfficeArea/CorpsDDMS (Area/Corps)--------ComdADMS (Comd)--------

125. As regards the question of 'wide variations' in the assessments of the medical authorities, it was clarified that no specific criteria can be laid down since it is a matter of clinical judgment based on the facts of the case.

-III-

126. Learned counsels cited a large number of cases before us. The list appears to be inexhaustible. This is a pity because it suggests that despite the legal position having been explained more than a dozen times by various Courts, the Respondents continue to act contrary to the law. This is a disease that should be immediately treated by the concerned authorities so that they may continue to be governed by the rule of law.

127. For convenience, we shall first refer to decisions of the Supreme Court and then of the various High Courts to appreciate how to law has been applied and how it has developed over a period of time.

Supreme Court decisions

128. Learned counsel for the parties referred us to four decisions of the Supreme Court on the subject.

129. Ex-Sapper Mohinder Singh v. Union of India, Civil Appeal No. 164/1993 decided on 14th January, 1993 was a case in which the Medical Board that examined the Appellant had assessed his disability at 40%. This was reduced to less than 20% by the Chief Controller of defense Accounts (Pensions) (CCDA). Consequently, the Appellant became disentitled to disability pension. The Respondents sought to justify the action of the CDDA on the ground that it had consulted a higher medical authority and it was then that it had interfered in the assessment of the disability.

130. The Supreme Court examined the relevant materials but was not satisfied with the plea taken by the Respondents and was not prepared to act on the vague allegations made in the counter affidavit. Under the circumstances, the Supreme Court upheld the assessment of the Medical Board at 40% and set aside the conclusion of the CCDA.

131. What is of importance is the conclusion of the Supreme Court that the assessment made by the Medical Board, which had examined the Appellant, should be respected until a fresh Medical Board examines him and reaches a different conclusion. Consequently, if there is a difference of medical opinion, an attempt should first be made to reconcile the differences and if that is not possible, then the opinion of the Medical Board, which examined the individual, will prevail. thereforee, even if the 'next higher medical authority' disagrees with the Medical Board, it can do so only after examining the individual. However, it can, for valid medical reasons, persuade the Medical Board to examine the individual again and, if necessary, reconsider its opinion.

132. Lance Dafadar Joginder Singh v. Union of India and Ors. : JT1993(5)SC332 was a case of a claim for disability pension arising out of an injury.

133. The Appellant was proceeding on casual leave in 1976 and while boarding the train he was involved in an accidental which resulted in severe injuries. A Court of Inquiry was held into the incident and the Appellant's Commanding Officer agreed with the findings of the Court of Inquiry that the injuries were sustained while on duty. The Appellant was, nevertheless, denied disability pension.

134. The Supreme Court observed in paragraph 5 of the Report that 'No Army Regulation or Rule has been brought to our notice to show that the appellant is not entitled to disability pension. It is rather not disputed that an Army personnel on casual leave is to be treated on duty.' Accordingly, the Supreme Court accepted the Appellant's claim for disability pension.

135. Union of India and Anr. v. Baljit Singh : (1996)11SCC315 was a case where the Respondent suffered an injury while in service in 1979. Later in 1981, he was diagnosed to be suffering from neurosis superimposed on an immature histrionic personality. He was recommended to be invalided out from service. He was denied disability pension, but on a writ petition filed by him, the High Court directed the Appellants to pay him disability pension.

136. It is not clear from the Report whether the invalidment of the Respondent was on account of the injury sustained by him or on account of his neurosis or both. However, the Supreme Court mentions that the report of the Medical Board was that the injury suffered by the Respondent was not due to military service.

137. In this context, it was held in paragraph 6 of the Report that:-

'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 and 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 for the military service. Accordingly, we are of the view that the High Court was not totally correct in reaching that conclusion.'

138. The legal principle that this decision reiterates (earlier laid down in Mohinder Singh) is that primacy has to be given to the decision of the Medical Board, which examines the claimant. The Medical Board may be the one that has examined him in the first instance or the 'next higher medical authority'. If the claimant disputes the conclusion of the Medical Board, then he has to affirmatively establish, as a fact, that his injury (or disease) was attributable to military service or was aggravated thereby leading to his invalidment from military service.

139. Madan Singh Shekhawat v. Union of India and Ors. : AIR1999SC3378 was a case in which the Appellant, a Sawar (horse rider) was discharged on medical grounds in 1987. He was traveling to his home station on authorised casual leave. While alighting from the train, he had an accident which resulted in the amputation of his right arm. His claim for disability pension was rejected by the CDA since he was not on military duty.

140. When the Appellant was traveling, he was doing so on his own expense and the High Court held that, thereforee, under the relevant rules, he was not entitled to any disability pension.

141. The Supreme Court considered Rule 6(c) of the 1961 Entitlement Rules (although it is the 1982 Entitlement Rules which are applicable but this really makes no difference because the 1982 Entitlement Rules appear to be more in favor of the Appellant than the 1961 Entitlement Rules). The words that required to be interpreted were 'at public expense.'

142. It was said in paragraph 15 of the Report:

'It is the duty of the court to interpret a provision, especially a beneficial provision, so as to give it a wider meaning rather than a restrictive meaning which would negate the very object of the rule.'

143. So saying, it was held by the Supreme Court in paragraph 18 and 19 of the Report as under:-

'18. Applying the above rule, we are of the opinion that the rule-makers did not intend to deprive the army personnel of the benefit of the disability pension solely on the ground that the cost of the journey was not borne by the public exchequer. If the journey was authorised, it can make no difference whether the fare for the same came from the public exchequer or the army personnel himself.

19. We, thereforee, construe the words 'at public expense' used in the relevant part of the rule to mean travel which is undertaken authorisedly. Even an army personnel entitled to casual leave may not be entitled to leave his station of posting without permission. Generally, when authorised to avail the leave for leaving the station of posting, an army personnel uses what is known as 'travel warrant' which is issued at public expense, the same will not be issued if the person concerned is traveling unauthorisedly. In this context, we are of the opinion, the words, namely, 'at public expense' are used rather loosely for the purpose of connoting the necessity of proceeding or returning from such journey authorisedly, meaning thereby that if such journey is undertaken even on casual leave but without authorisation to leave the place of posting, the person concerned will not be entitled to the benefit of the disability pension since his act of undertaking the journey would be unauthorised.'

144. The Appellant was, thereforee, held entitled to the benefit of disability pension.

145. It may be mentioned that the Respondents had presciently accepted the principle, laid down by the Supreme Court, in paragraph 2(a) of their letter dated 27th October, 1998 wherein guidelines have been given for the interpretation of the expression 'entitled to travel at public expense' occurring in Rule 12(d) of the 1982 Entitlement Rules.

Full Bench decision

146. The controversy over the burden of proof as to 'who has to establish that disablement was occasioned on account of military service or was aggravated there from' was the subject matter of reference to the Full Bench of the Kerala High Court in K.K. Jose v. Union of India, W.A. No. 1784/1997 (and other connected cases) decided on 22nd March, 2000.

147. The Full Bench did not discuss the facts of any case, but merely dealt with the legal issue. After quoting a passage from Baljit Singh, it was said:-

'Some of the Hon'ble Judges who have dealt with the matter seem to have proceeded on the basis that what was required to establish was that the disease is not attributable to military service or has not been aggravated by it, and thereforee, burden of establishing it was placed on the employer. What the Supreme Court has clearly laid down is that when a claim is made, it has to be affirmatively established. Obviously, the claim is made by a person claiming disability pension. thereforee, the initial burden is on him to establish that the injury sustained while in service was due to military service or was aggravated which contributed to invalidation for military service.'

148. The Full Bench then referred to the Pension Regulations and the 1961 Entitlement Rules, particularly Rule 7(b) thereof (which is not materially different from Rule 14(b) of the 1982 Entitlement Rules) and said:-

'We find that the examination by the Medical Board cannot be termed to be an empty formality. This is evident from the fact that the examining body is required to record reasons as contemplated in Rule 7(b). The purpose of incorporation of such condition seems to be that the benefit is being denied to a person who claims it on account of disease or injury while in military service.'

149. The reference made to the Full Bench was then answered in the following manner:-

'(a) The burden will be on the claimant to establish that the injury or the disease was on account of the military service or aggravated on account of it.

(b) The onus in this regard is of a rebuttable nature.

(c) The Medical Board is required to elaborately deal with the matter and record reasons as contemplated in Rule 7(b) to Appendix II and also to take note of various aspects highlighted in Appendix II itself.

(d) Unless the requisite formalities which are to be observed have been so done, the appellate body or for that matter the High Court while exercising powers under Article 226 of the Constitution can examine the matter. But the scope of judicial review in such matter is rather limited as the High Court does not act as the appellate authority. Only when the conclusions are perverse without any material to support it or where irrelevant materials have been taken into consideration for arriving at a conclusion, the High Court can interfere while adjudicating the petition under Article 226 of the Constitution. (See Mohan Amba Prasad Agnihotri and Ors. v. Bhaskar Balwant Aher (D) through LRs. 2002 (2) SCALE 186).'

Division Bench decisions

150. The question of grant of disability pension has come up for consideration before the Division Bench of this Court on several occasions, and occasionally before the Division Benches of other High Courts.

151. Union of India and ors. v. WO R.P. Dikshit, LPA Nos. 226 and 323 of 1998 decided on 7th April, 2000 dealt with two appeals concerning Air Force personnel.

152. LPA No. 226/1998 (R.P. Dikshit) was one of retention in service and not really for grant disability pension. In this case, the Respondent suffered from a detachment of the retina. The learned Single Judge observed that no note was made of his disability at the time of his recruitment in service. It was consequently inferred that the disability was attributable to military service.

153. Allowing the appeal, the Division Bench noted that the Medical Board had opined that the disease was constitutional in nature and not attributable to military service. Relying upon Mohinder Singh, the Division Bench gave primacy to the opinion of the Medical Board and, thereforee, set aside the finding of the learned Single Judge in this regard.

154. The Division Bench then relied upon Baljit Singh and held that it was for the Respondent to establish that military service aggravated or contributed to the onset of the disability or that the circumstances were such that the disability could set in. The Respondent had failed to establish this. Consequently, even in this view of the matter, there was no reason to decide in favor of the Respondent.

155. So far as LPA No. 323/1998 (R.P. Singh) is concerned, the case was one of extension of service. A Medical Board held in April, 1993 had opined that the Respondent's disability (arthritis is of the knee) was attributable to service. The Respondent was given an extension but subsequently in 1996, without any fresh Medical Board examining him, a decision was taken not to grant an extension of service on the ground that the disability was not attributable to service.

156. On these facts, the learned Single Judge directed the Appellants to re-consider his case for extension on merits. Relying upon Mohinder Singh, the Division Bench held that the view of the Medical Board, which examined the respondent ought to be respected until a fresh Medical Board examines him and comes to a different conclusion. The decision of the learned Single Judge was, thereforee, upheld to this extent.

157. Deepak Kumar Singh v. Union of India : 68(1997)DLT788 was also a case pertaining to the Air Force. The Petitioner was suffering from diabetes. When he was recruited, no note was made in the documents of enrolment that he was suffering from any disease or disability.

158. About two years later, the Medical Board found him to be diabetic with a disability assessed at 40%. He was then invalided out of service. His claim for disability pension was not accepted by the Controller of defense Accounts (P) (CDA). He preferred an appeal against the rejection of his claim but it was turned down.

159. It is not clear from the narration of facts whether the Medical Board, while recommending discharge of the Petitioner, had found that the diabetes was aggravated by or attributable to military service. But, the CDA concluded that the disability was neither attributable to nor aggravated by military service.

160. The Division Bench referred to Rule 7(b) of the 1961 Entitlement Rules and relied upon the fact that no note of the disease was made at the time of the Petitioner's enrolment nor did not Medical Board record any opinion that the disease could not have been detected prior to his acceptance in service. It was, thereforee, held that the disease, which led to the Petitioner's discharge from service, was deemed to have arisen during military service.

161. Relying upon Mohinder Singh, the Division Bench accepted the opinion of the Medical Board that the disability of the Petitioner was 40% and held that the decision denying him disability pension was unsustainable.

162. We may observe here that merely because a disability has arisen during military service, it does not follow that the disability is attributable to or aggravated by military service. These are two different questions, which have to be answered independently.

163. We may only say that in the absence of the opinion of the Medical Board regarding attributability of aggravation of the disability due to military service, the appropriate course of action would be to have the Respondent therein re-examined by the Medical Board and a definite opinion obtained on the question of attributability or aggravation of the disease.

164. Chief of Air Staff v. Jai Bhagwan Rohilla, LPA No. 534/1999 decided on 26th November, 2001 overruled the decision of the learned Single Judge in Jai Bhagwan Rohilla v. Chief of Air Staff, 2000 (1) SCT 910. This was also a case which pertained to the Air Force and one where the Respondent suffered from diabetes. The Medical Board in this case, while recommending the Respondent's discharge from service, had held that his disease was constitutional and not attributable to military service or aggravated thereby. The Medical Board had assessed his disability at 60%. On the basis of the decision of the Medical Board, the Respondent was denied disability pension.

165. A writ petition filed by the Respondent challenging the denial of disability pension was allowed by a learned Single Judge. In appeal, the Division Bench placed reliance on Mohinder Singh to give primacy to the opinion of the Medical Board and upon the decision in Baljit Singh to hold that in the absence of any material on record, it was not possible to disturb the conclusion of the Medical Board or otherwise prove that his disease was attributable to or aggravated by military service.

166. Ex-Captain Randhir Singh Gurra v. Union of India and Ors., CW 2424/1994 decided on 25th July, 1997 was yet another case pertaining to the Air Force. The Petitioner was suffering from schizophrenia and was invalided out of service in 1991. The Commanding Officer of the Petitioner had recommended the grant of disability pension but from the facts of the case, it is not very clear what the recommendation of the Medical Board was except that his disability was assessed at 60% for two years. The CCDA rejected the case of the Petitioner for disability pension on the ground that the disease was constitutional in nature and was not attributable to or aggravated by or even connected with military service.

167. The Division Bench noted that when the Petitioner was recruited, no note was made of his disease. There was also nothing on record to suggest that his disease could not have been detected on medical examination prior to his acceptance into service Relying upon Rule 7(b) of the Entitlement Rules (apparently the 1961 Entitlement Rules), it was held that the CCDA should have accepted the recommendation of the Commanding Officer which was in consonance with the presumption that the disease was due to the effects of stress and strain and had arisen during military service. Reliance was placed on Mohinder Singh for accepting the disability at the percentage given by the Commanding Officer, that is, 60%.

168. Raghubir Singh v. Union of India and Anr. : (1999)ILLJ82Del was a case where the Petition had sustained an injury in his ear. The IMB assessed is disability at 30% and recommended his discharge from service. He was discharged on 24th February, 1991.

169. On the basis of the medical opinion, the Commanding Officer sanctioned disability pension to the Petitioner but the CCDA rejected the claim on the ground that the disability was neither attributable to nor aggravated by military service.

170. The contention of the Petitioner was that the injury was sustained while he was in service and, thereforee, the presumption is that it was attributable to military service. On considering the facts of the case, the Division Bench inferred that since the Petitioner sustained the injury while he was in service, it must be attributable to military service.

171. The question that was considered by the Division Bench was whether the CCDA could override the opinion given by the IMB. Relying upon Mohinder Singh, it was held that the CCDA had no power to override the opinion of the IMB. If it was satisfied with the opinion of the IMB, it could have referred the matter for re-examination by a properly constituted Medical Board for re-assessment of the disability.

172. In Union of India and Ors. v. Savitri Devi Mehta and Ors. : 97(2002)DLT796 , one of the questions that arose was whether the disability of the deceased could have been reduced from 40% to 20% without a fresh medical examination. Quite obviously, the learned Single Judge answered this question in the negative, which was upheld by the Division Bench. No additional or separate reasons were recorded for upholding the view of the learned Single Judge.

173. In Ex-Lance Naik Om Prakash v. Union of India and Ors., CW 4622/1994 decided on 15th December, 2002 with other connected matters, a Division Bench of this Court reiterated the law laid down in Baljit Singh and K.K. Jose and referred the matters to the concerned Benches for a decision on the merits of each case.

174. A Division Bench of the Patna High Court in Union of India v. Muneshwar Prasad, LPA No. 1110/2001 decided on 7th February, 2002 also had occasion to consider the issue of disability pension.

175. In this case, the Medical Board found that the disability caused by 'health problems' suffered by the Respondent was constitutional and not one that could be attributable to or aggravated by military service. On the basis of the medical report, the Respondent was discharged from service in January, 1981. Relying upon Baljit Singh, the Patna High Court held that there was no cogent reason to reject the opinion of the Medical Board, and, thereforee, upheld the denial of disability pension.

176. Jarnail Singh v. Union of India and Ors. 1997 (3) RSJ 619 arose under the 1982 Entitlement Rules. While the Petitioner was on leave, he was operating a wheat thresher. His right hand was crushed and thereafter amputated. The Petitioner made a claim for disability pension but it was rejected. A departmental appeal filed by the Petitioner was also rejected. The Division Bench of the Punjab & Haryana High Court which heard his writ petition questioning the denial of disability pension, firstly considered the issue whether a person on casual leave can be said to be on duty or not. While answering this question in the affirmative, the Division Bench relied upon Joginder Singh and Smt. Charanjit Kaur v. Union of India and Ors. : (1994)ILLJ987SC . We are not really concerned with this issue. An individual may be 'on duty' for all practical purposes such as receipt of wages etc. but that does not mean that he is 'on duty' for the purpose of claiming disability pension under the 1982 Entitlement Rules.

177. A person to be on duty is required, under the 1982 Entitlement Rules, to be performing a task, or a task the failure to do which would constitute an offence triable under the disciplinary code applicable to him. A person operating a wheat thresher while on casual leave cannot, by any stretch of imagination, be said to be performing an official duty or a task the failure to perform which would lead to disciplinary action. To this extent, we respectfully disagree with the view of the Division Bench of the Punjab & Haryana High Court that the Petitioner was 'on duty' while operating a wheat thresher.

178. The second issue considered by the Punjab & Haryana High Court was whether the injury suffered by the Petitioner was attributable to or aggravated by military service. The Division Bench answered this in the negative.

179. In paragraph 13 of the Report, it was held:-

'We are of considered view that the injury suffered by a member of the armed force must be directly or indirectly attributable to or aggravated by military service. May be remotely but it must find its origin from the nature and scope of the duties and discipline of the force. Obviously, a person on casual leave would not be performing his normal duties but the event which results in infliction of injury to the member of the force must be ancillary to the recognised sphere of military duty and discipline. The injury causing disability, thereforee, must springs from such event and circumstances which falls within expected standard of functioning of disciplined members of the armed forces. The expression attributable to military service has to be understood in its wide spectrum, but this understanding must find its limit within the principle of prudence and reasonableness. If the injury suffered by the member of the armed force is the result of an act a line to the sphere of military service or in no way be connected to his being on duty as understood in the above sense, it would not be legislative intention nor to our mind would be permissible approach to generalise the statement that every injury suffered during such period would necessarily be attributable to or aggravated by military service.'

180. After discussing various judgments, it was held in paragraph 18 of the Report that in the absence of any causal connection between the injury and military service, the Petitioner was not entitled to disability pension.

181. It was held:-

'On proper analysis of the above discussion the position that emerges is that an accident or injury suffered by a member of the armed forces must have some casual (causal) connection to the aggravation or attributability to military service and at least should arise from such activity of the member of the force as he is expected to maintain or to in his day-to-day life as a member of the force. The nexus between the two is not apparently one so as to cover every injury or accident. The hazards of Army service cannot be stretched to the extent of unlawful and entirely unconnected acts or omissions on the part of the member of the force even when he is on leave.'

Single Judge decisions

182. Learned Single Judge of this Court have also had occasion to consider the issue of disability pension.

183. In Ex-Sepoy Jagbir Singh v. Union of India 2000 (2) SCT 555, the Petitioner was boarded out in 1992 due to some 'eye problem' on the advise of the Medical Board which assessed his disability at 40%. In the counter affidavit it was stated that the disease suffered by the Petitioner was an idiopathic disorder which cannot be detected at the time of enrolment, being quiescent.

184. Relying on Mohinder Singh, the learned Single Judge accepted the view of the Medical Board that his disability was 40%.

185. The learned Single Judge then relied upon Deepak Kumar Singh to conclude that the disease not having been detected at the time of enrolment must be deemed to have been arisen during military service and, thereforee, the Petitioner was entitled to disability pension.

186. Corporal Satbir Singh v. Union of India 1999 (5) SLR 352 was a case pertaining to the Air Force. The Petitioner was found to be medically fit at the time of enrolment. He was medically boarded out of service in 1995 and his disability was assessed at 60%. According to the Medical Board, the Petitioner suffered from a constitutional disease. The CCDA rejected the claim for disability pension because the Petitioner was not suffering from any ailment, which could be attributed to military service, nor did the ailment exist before or during military service nor was it aggravated by military service.

187. A learned Single Judge of this Court set arise the view of the Medical Board because it had not given any reason why the ailment was not attributable to military service. It was said that the word 'constitutional' is general in nature and that the description of the disease as 'constitutional' by the Medical Board is not final. The learned Single Judge set aside the decision of the CCDA, which agreed with the Medical Board.

188. We are of the view that this decision requires to be overruled. When the Medical had given a categorical opinion that the Petitioner's ailment was constitutional and even the CCDA had opined that the Petitioner was not suffering from any ailment which could be attributed to or aggravated by military service and that it did not exist before or during military service, the learned Single Judge could not have set aside the concurring opinions merely because it was felt that the word 'constitutional' is not an adequate reason for denying disability pension. The learned Single Judge clearly fell in error in substituting his views for that of the IMB as well as the CCDA.

189. There are several decisions rendered by learned Single Judges of the Punjab & Haryana High Court which have dealt with this issue.

190. In Joginder Singh Ex. Lt. v. Union of India and Anr. 1994 (4) SLR 409, it was held that the Medical Board having assessed the disability at 20%, the CCDA could not have reduced it to 15-19%. The Petitioner had appealed to the appellate medical authority which had endorsed the opinion of the CCDA. The learned Single Judge noted that neither the CCDA nor the appellate medical authority had examined the Petitioner and, thereforee, the disability of the Petitioner could not have been reduced from 20% as assessed by the Medical Board.

191. Surmukh Singh v. Union of India and Ors. 1999 (4) SLR 510 was a case where the Medical Board had assessed the disability of the Petitioner at 40% but this was reduced by the CCDA to less than 20%. Relying upon Mohinder Singh, the Punjab & Haryana High Court set aside the view of the CCDA.

192. Nachhattar Singh v. Union of India and Ors. 1999 (2) SLR 691, Ex-Subedar Clerk Nirmal Singh v. Union of India and Ors. 1999 (7) SLR 644 and Naik Darshan Singh v. Union of India 1999 (7) SLR 398 are also decisions rendered by learned Single Judge of the Punjab & Haryana High Court based on Mohinder Singh and following the principle that the CCDA cannot sit in judgment over the opinion of the Medical Board.

-IV-

193. It was submitted before us by learned counsels for the Petitioners that the pension sanctioning authority is the Commanding Officer of the individual concerned and not the CDA or the CCDA. This does not seem to be correct in view of Regulation 21 of Part II of the Pension Regulations read with Table V thereof which clearly specifies that the CDA is the authority to sanction the grant of pension. In any event, this issue is not of vital importance so far as the decision of these cases is concerned in view of the decision of the Supreme Court in Mohinder Singh.

194. Even otherwise, learned counsels directed their ire at the 'arbitrary' decisions taken by the CDA or the CCDA from time to time while denying disability pension. Their grievance was that despite categorical statements of the law, the CDA or the CCDA continues to ignore it, compelling disabled persons to approach the Courts for justice. They submit that the Respondents are doing nothing to rein in the CDA or the CCDA.

195. We are of the opinion that learned counsels for the Petitioners are fully justified in being agitated in this regard. Despite the law having been laid down by the Supreme Court and followed in several decisions by various High Courts, our analysis of the decisions given above unmistakably suggests that the CDA or the CCDA continues to act as it pleases. It must be clearly understood by the law implementing authorities that when the law is declared by the Supreme Court, it is of universal application and is not confined to the facts of a particular case only. thereforee, when the Supreme Court declares the law, as for example in Mohinder Singh, it does so in respect of all such cases, and not only in the case of one individual. Consequently, when the CDA or the CCDA deals with a case, it has to keep in mind the decision of the Supreme Court and apply the legal principles laid down therein to all similar cases. The large number of cases that we have considered above seem to indicate is that the CDA or the CCDA believes (erroneously) that the law has to be laid down or repeated in each and every case; or, it adopts an 'I don't care' sort of attitude. If it is the latter, then the attitude or the CDA or the CCDA suggests that if its decision is wrong or contrary to a decision of a Court, then some Court of competent jurisdiction will correct it. This is neither the right approach to have nor is it a legally acceptable course of action. The sooner it is corrected, the better it is for all armed forces personnel, serving or retired, otherwise they may one day find themselves the victims of the vagaries of the CDA or the CCDA.

196. In this context, we may only recall what was said by a learned Single Judge of this Court in similar circumstances in cases pertaining to disability pension in Ex. LNK Gordhan v. Union of India and Ors., CW No. 2010/2000 decided on 19th October, 2001. It was said:-

'A copy of this judgment should be placed before the Chief of Army Staff as well as the Chief of the Air Staff for their perusal since the policy adopted by the CDA/CCDA is not only deleterious and demoralizing for the Armed Forces but is contrary to repeated pronouncements of difference High Courts as well as the Hon'ble Supreme Court.'

197. If this was the extent of the frustration felt by the Court, one can well imagine the frustration of disabled armed forces personnel. All that we need to say is, 'Please wake up'!

198. Having read through and considered all the judgments with the assistance of learned counsel who cited them, it is now necessary for us to give our conclusions based on an analysis of these decisions, the relevant Entitlement Rules and the decisions pertaining thereto.

Conclusions

199. We have considered the various submissions ably mad by a large number of learned counsels on an issue involving a deep study of all kinds of administrative instructions and orders. We have also gone through the judgments cited above. The legal principles that can be derived from the decisions of the Courts and the interpretation of various rules, regulations and orders are as follows:-

Generally:

(1) Disability pension is granted to an individual who is boarded out from service:-

(a) On account of a disability.

(b) The disability is attributable to or aggravated by military service.

(c) The disability is assessed at 20% or above.

The determination of attributability or aggravation is as per the 1961 Entitlement Rules or the 1982 Entitlement Rules as the case may be. [Regulation 173].

(2) Before invalidating an individual from service, an effort should first be made to adjust him against a sheltered appointment. If it is not possible to adjust him against a sheltered appointment, only then can he be boarded out from service. [Regulation 173-A].

(3) Disability pension may be granted for life if the disability is incapable of improvement. Otherwise, it may be granted for a lesser period. [Regulation 185].

(4) The quantum of disability pension may increase or decrease depending upon the increase or decrease of the disability. [Regulations 187 and 188].

(5) When an individual is being recruited, he apparently goes through a medical examination. In the medical examination:

(a) he may be found suffering from a disability which disentitles him from being recruited, in which event he may not be recruited.

(b) he may be found suffering from a disability which does not disentitle him from being recruited and he is then recruited. In such a case, a note must be made of the disability in the documents of enrolment.

(c) he may be found not suffering from any disability.

(6) The Medical Board examining an individual for boarding him out from service is required to determine whether the disability which has necessitated the boarding out of the individual, existed before his enrolment or if it arose during military service. [Rule 2]. If it existed before his enrolment, it has to be stated whether a note was made of it or not. [Rule 7(b)].

(7) The Medical Board is also required to certify if the disability which has necessitated the boarding out of an individual is attributable to military service (if it has arisen during service) or if the disability is and remains aggravated due to military service (if it existed before his enrolment). [Rule 2(a)].

(8) There must be a causal connection between the disability and military service, both for it to be attributable to military service or being aggravated thereby. Otherwise, it cannot be accepted that the disability was attributable to or aggravated by military service. [Rule 3 read with Jarnail Singh]. All relevant evidence has to be taken into consideration by the Medical Board for deciding whether or not a disability is attributable to or aggravated by military service. An individual will, however, be entitled to the benefit of reasonable doubt. [Rule 4].

(9) The opinion of a Medical Board that examines an individual will have primacy over the opinion of any other medical authority (including the opinion of a 'next higher medical authority' or even the Medical Adviser (P) attached to the office of the CDA or the CCDA) unless that other medical authority has also examined the individual. [Mohinder Singh]. Alternatively, the Medical Board may reconsider its opinion after a fresh examination of the individual. [Raghubir Singh]. The exception to this will be in cases where the 'next higher medical authority' or the Medical Board Adviser (P) takes a view which favors the individual.

(10) The decisions contained in the letter dated 7th February, 2001 and subsequent clarifications are administrative in character. The Respondents, for their own decision making process, will be bound by them. The contents of the letter dated 7th February, 2001 however, do not and cannot, alter the basic law laid down by the Supreme Court in Mohinder Singh giving primacy to the opinion of the authority that physically examines an individual.

(11) In the event an individual disputes the correctness of the opinion of the Medical Board, the burden will be on him to establish, as a fact, that the disability was attributable to or aggravated by military service. [Baljit Singh, K.K. Jose and Om Prakash].

Disease cases under the 1961 Entitlement Rules

(1) If a disease arises (or is deemed to arise) during military service, the Medical Board has also to decide whether the conditions of military service determined or contributed to the onset of the disease and that it was due to circumstances of duty in military service. [Rule 7(c)]. If the opinion is in the affirmative, then the disease is attributable to military service.

(2) If the Medical Board concludes that the conditions of military service did not determine or contribute to the onset of the disease, or if a disease is noted in the documents of enrolment, then the Medical Board will be required to decide if military service influenced the subsequent course of the disease. If medical opinion is in the affirmative, it may be a case of aggravation of the disease due to military service. [Rule 7(a)].

(3) If an individual suffered from a disease prior to his enrolment, and the Medical Board so determines, then it is also required to decide whether the disease could or could not have been detected at the time of enrolment. [Rule 7(b)].

(4) If medical opinion decides, for reasons to be stated, that the disease could not have been detected at the time of enrolment, it will be deemed not to have arisen during military service. [Rule 7(b)].

(5) However, if medical opinion holds that the disease could have been detected at the time of enrolment (but it was not so detected), or if detected but no note was made of it in the document of enrolment, then it will be deemed to have arisen during military service. [Rule 7(b) read with Deepak Kumar Singh and Raghubir Singh Gurra]. It will, nevertheless, have to be decided if the disease was attributable to or aggravated by military service.

Disease cases under the 1982 Entitlement Rules

(1) In essence, the 1982 Entitlement Rules are far more liberal than the 1961 Entitlement Rules, dealt with above. The basic and essential conditions and requirements under the 1961 Entitlement Rules continue in the 1982 Entitlement Rules.

(2) However, the approach under the 1982 Entitlement Rules is that it is presumed that a person is physically fit at the time of enrolment unless any disability is noted. If the individual is subsequently discharged from service on medical grounds, the presumption is that any deterioration in health has taken place due to military service. [Rule 5].

(3) An individual claiming disability pension is now required to prove his entitlement for disability pension. [Rule 9]. Consequently, if thee is a difference of medical opinion, it has to be resolved by the medical authorities. If it is resolved against the individual, then the burden of proof will fall on him to affirmatively establish his claim as a fact. [Baljit Singh, K.K. Jose and Om Prakash]. However, if there is still some doubt about the entitlement of the individual to disability pension, then he will be entitled to the benefit of doubt.

(4) In cases of a constitutional disorder (including congenital, hereditary or degenerative diseases), it has to be decided by the Medical Board whether conditions of military service adversely affected the individual [Rule 14(b)].

(5) If a precipitating or causative factor produces a disease, then the disease would be attributable to service notwithstanding the predisposition or inherent constitutional tendency of the individual. [Rule 18].

(6) If a disability in an individual is not attributable to conditions of military service, it may yet have been aggravated thereby. [Rule 19].

Injury or accident cases

200. By and large, the determination or cause of a disability as a result of an injury or an accident poses few problems in adjudication of entitlement for disability pension. This is a question of fact that may be easily determined by the Respondents, if necessary, by holding a Court of Inquiry into the events that led to the accident or injury. The legal issues that arises can be dealt with on the principle given below.

(1) If an individual suffers an injury or an accident while on duty, it will be deemed to have arisen in or from military service. [Rule 6(a)].

(2) The words 'on duty' are explained to mean the period during which an individual is performing an official task or a task, the failure to perform which, may lead to adverse action under the disciplinary code applicable to the individual. [Rule 6(b)].

(3) The words 'on duty' are given an extended meaning under Clauses (c) and (d) of Rule 6, for the benefit of an individual. Consequently, if an individual suffers an injury or an accident while he is required to or authorised to go to or return from his leave station (even though on casual or annual leave), he will be on duty because if he fails to do what he is required or authorized to do, he will be liable for disciplinary action. [Rule 6(c) read with Madan Singh Shekhawat].

(4) Nevertheless, an injury or an accident suffered by an individual during military service must not be self-inflicted, or due to serious negligence on the part of the individual or because of misconduct committed by him. [Rule 6(a)]. At the same time, there must also be a causal connection between the injury or accident and military service. [Rule 3 read with Jarnail Singh].

(5) The 1982 Entitlement Rules adhere to the basic principles laid down by the 1961 Entitlement Rules, though somewhat more liberally. For example, undertaking a journey 'at public expense' for the purposes of being 'on duty' [Rule 12] has been liberalized by a clarificatory letter dated 27th October, 1998, predating as it were, the interpretation given in Madan Singh Shekhawat.

Similarly, an injury or accident which is self-inflicted, or caused due to serious negligence or misconduct may still entitle an individual to disability pension but the cause of the injury will have a bearing on the quantum of the disability pension. [Rule 13].

201. The conclusions that we have arrived at are based on the submissions made before us and after considering the facts of the various cases that we heard. The large number of cases that we have dealt with would cover most types of situations that may generally arise. Our conclusions would, thereforee, take care of most normal situations. Some exceptional cases may, of course, require special consideration. We make it clear that only to this extent, these conclusions are not exhaustive.

202. There are a few miscellaneous aspects, which arose during the hearing of these cases which, we feel, also need to be addressed.

Delay in approaching the Courts

203. Learned counsel for the parties made submissions on the question of delay and laches in filing a writ petition for grant of disability pension. In some connected cases, the writ petition was filed after several years. There have been cases where there is a delay of between 10-15 years. The contention of learned counsel for the Petitioners in cases of this nature is that denial of disability pension is a continuing cause of action and that there is no period prescribed for filing a petition under Article 226 of the Constitution.

204. It is not necessary for us to decide this question. However, we cannot overlook the fact that in such cases the records maintained by the Respondents may be in some far off place. Once the legal process is set into motion, the Respondents have to communicate with several offices in various parts of the country. They are required to search out old records, some of which of may be non-existent having been destroyed or weeded out. All this requires expending labour and energy, not to mention time.

205. If a person is disabled, he may reasonably expect to be entitled to some financial support. Such a person will, more often than not, be aware of his right to claim disability pension, more particularly when he needs it perhaps more than anybody else does because of his physical or mental condition. To assume that such a person is neither aware of his entitlement or his right may not be justified. Such an individual, having served with the armed forces would, in the normal course, be expected to know the benefits that he may be entitled to on his release from the armed forces, one such benefit being pension if he retire in the normal course or disability pension if he retires due to some medical problems. thereforee, entertaining petitions filed by disabled personnel after several years on the basis that they may not have been aware of their entitlement or their rights is to really turn a Nelson's eye to a state of affairs which one can reasonably assume is existing.

206. On the other hand, it can also be said that if an individual has not applied for disability pension for several years, and yet has been able to survive without his disability pension, then he is not really dependent upon it for his sustenance. Consequently, even if his writ petition is allowed, he need not be given arrears of disability pension for several years, if not decades. This may be partially true and yet may not be completely fair to an individual who has served in the armed forces to the best of his ability.

207. Our experience from this batch of cases and other similar cases is that delayed claims for disability pension are usually supported by the excuse that the person was illiterate or was not aware of his rights or of what is generally going on. There may be some such genuine cases. But at the same time there may instances where an individual may be gambling to see if he can get the benefit of doubt and thereby obtain an order for grant of disability pension even though he may not strictly be entitled to it. We have thereforee, to draw a balance between the two sets of cases.

208. Having heard submissions on the facts of many such cases, we are of the view that as a thumb rule it may be appropriate if the law of limitation as it applies to civil suits is applied in such situations. thereforee, claims for grant of disability pension may be entertained despite a great delay, but the delayed claim should not be granted for a period exceeding three years prior to the date of filing the writ petitions unless the individual has been diligently pursuing the matter with the Respondents or has made a representation which has not been disposed of by the Respondents. This will, of course, depend on the facts of each case and no binding rule can be laid down in this regard.

Departmental appeals

209. The 1982 Entitlement Rules provide for an collaborate appeals procedure in Rules 23 to 25. As per the letter dated 7th February, 2001 the appeals procedure remains unchanged. In this context, we had enquired of learned counsel for the Respondents during the hearing of these cases about the number of appeals that may be pending before the Appellate Authorities and the procedure being followed in the disposal of appeals.

210. As regards the number of appeals, we were told that in the calendar year 2000, the number of appeals filed was 1902 and the number accepted was 387. It is not clear whether the balance appeals were rejected or whether the balance appeals (or some of them) are pending.

211. As regards the procedure required to be framed as per Rule 24 of the 1982 Entitlement Rules, we were told that:-

'2. No separate guidelines have been issued for disposal of appeals. However, the appeals are disposal off by the Appellate Committees in accordance with provisions contained in entitlement rules/pension Regulation of the respective services and guide to Medical Officers.'

212. This information has been given to us by learned counsel for the Respondents by handing over in Court a copy of a letter dated 24th May, 2002 sent by the Under Secretary (Pen.A∾) to the Zonal Officer (PD), Delhi Cantonment.

Directions

213. In view of the above, and keeping in mind the suggestions given by learned counsels for the claimants, and some apprehensions expressed by them, we are of the opinion that certain directions need to be given to the Respondents so that cases pertaining to claims of disability pension can be dealt with in a manner which should satisfy the claimants, both at the initial stage as also at the appellate stage. We are hopeful that if these directions are adhered to in letter and spirit, not only will the burden of the Courts be reduced, but individual claimants may feel persuaded to avoid unnecessary appeals.

214. We, thereforee, give the following directions:-

(1) When a claim for disability pension is rejected by any of the pension sanctioning authorities, including the CDA or the CCDA, the letter/order rejecting the claim should specifically indicate that the individual is entitled to file a first appeal to the Appellate Committee for First Appeals. He should be advised that an appeal might be preferred within a specified period, say six months. The designation and address of the person to whom the first appeal has to be sent should also be indicated.

A similar sort of information is given in cases pertaining to the Customs Act, 1962 and the Central Excises and Salt Act, 1944. This procedure is working quite satisfactorily under these two statues and so we see no reason why a similar procedure cannot be adapted in respect of cases pertaining to disability pension.

(2) When the Appellate Committee for First Appeals rejects the first appeal of the claimant, he should be specifically informed in the letter/order of rejection that he is entitled to make a second and final appeal to the defense Minister's Appellate Committee on Pensions. The claimant should be advised that an appeal might be preferred within a specified period, say six months. The designation and address of the person to whom the second and final appeal should be sent should also be indicated.

(3) The Respondents should advise a simple form that can easily be filled up by an individual while filing a first appeal and a second or final appeal. This form should contain all the relevant particulars that a claimant may be required to fill up to assist and enable the appellate authorities to take a proper decision in the appeals. Apart from anything else, this will standardize the procedure and bring about consistency and uniformity in dealing with cases. Needless to say, this will be of immense help to a Court of law should a writ petition be filed against the decision of the defense Minister's Appellate Committee on Pensions.

(4) One of the grievances made before us was that a claimant is not given all the relevant material to enable him to file an effective appeal. We, thereforee, direct that on a demand being made by a claimant for any specific particulars regarding his medical condition, the same should be supplied to him (unless there is a violation of medical ethics or the information is confidential under the applicable medical rules) to enable him to make an effective appeal for grant of disability pension. The material should be supplied to the claimant within a period of sixty days from the date of receipt of the request.

(5) To the extent possible, the appellate authorities should endeavor to dispose of all such appeals pending before them, or filed hereafter, within a period of six months.

Final Orders

215. In so far as this writ petition is concerned, we find that the Medical Board had concluded that the disease of the Petitioner was neither attributable to nor aggravated by military service. This view was upheld by the CCDA.

216. Under the circumstances, we do not think it appropriate to disturb the concurrent conclusions arrived at by the Respondents. The Petitioner is thereforee, not entitled to disability pension.

217. So far as the remaining cases in this batch of writ petitions is concerned, we issue a writ of certiorari and remand the matter to the Controller of defense Accounts (P)/Chief Controller of defense Accounts (P), Allahabad to re-consider all these cases in the light of the conclusions arrived at by us and directions given. The Controller of defense Accounts (P)/Chief Controller of defense Accounts (P) will, of course, be entitled to confirm its view, in accordance with law. We make it clear that if any Petitioner has any grievance with regard to the payment of any other amount, including any service pension, he may raise the issue before the appropriate authority.

218. The writ petitions are disposed of in the aforesaid terms. Each of the petitioners, including the Petitioner in the present case, will be entitled to litigation expenses of Rs. 2,500/- each.