Judgment:
C.T. Ravikumar, J.
1. The appellants herein were the respondents and the respondent herein was the petitioner in W.P.(C). No. 35634 of 2007. The respondent/petitioner was a Constable in the Border Security Force. Hejoined the service as such on 16.8.1990 and subsequently, he was deputed to the Computer Wing for the Border Fencing and Flood Fighting Project of the Indo-Pak Border. He had worked there during the period from 1998 to 2004. Thereafter, he was posted to 60 Battalions and while working there he lost vision of his left eye and his right eye vision gradually started diminishing. Diagnosis revealed affliction of Retinal Vascultis on both eyes and Vitreous Hemorrhage on the left eye. The petitioner was directed to appear before the Medical Board. The Medical Board initially placed him in low medical category due to his diminishing eye sight and thereafter under the medical category S1H1A1P3(T-24)E3(T-24) with effect from 26.5.2006. On 22.2.2007, as per Ext.P1 he was adjudged medically unfit to continue in the service of B.S.F. with 80% permanent disability. Pursuant to Ext.Pl proceedings, the petitioner was issued with Ext.P2 show cause notice as to why he should not be retired for on the ground of physical unfitness. Later, as per Ext.P3 dated 9.3.2007, the name of the petitioner was struck off from the strength of the said unit with effect from 13.4.2007 and was thus made to retire from service with effect from that date. After such retirement, as per Ext.P4, the petitioner was granted only the normal invalid pension. Aggrieved by the denial of the disability pension, the petitioner had filed Ext.P5 representation. But the request of the petitioner was not acceded to and the same was rejected as per Exts.P6 and P7. It was stated therein that the disease was not one covered under the list of classification of diseases that could be contracted/attributable by service under Schedule I.A. Rule 3(4) of the Central Civil Service (Extraordinary Pension) Rules (for short 'the Rules'). The petitioner approached this Court challenging Exts.P6 and P7 orders.
2. A counter affidavit was filed in the Writ Petition on behalf of the respondents. Two reasons were assigned therein for rejecting the request of the petitioner. Firstly, it was contended that the percentage of disability which culminated in the loss of vision was not directly attributable to the service conditions and secondly, that the disease is not one covered under the list of classification of diseases that could be contracted/attributable by service under Schedule IA, Rule 3(4) of the Rules.
3. After considering the rival contentions, the learned Single Judge declined to accept the contentions of the appellants/respondents. It was found that the person who contracted the disease which ultimately resulted into the disability could not be denied the disability pension merely because the disease which resulted in such disability is not one covered under the list of classification of diseases that can be contracted/attributable by service under Schedule IA, Rule 3(4) of the Rules. To arrive at the said conclusion and to issue consequential directions, the learned Single Judge relied on the decision of this Court in Vijoy v. The Director General of B.S.F. and Anr. reported in : 2005 (4) KLT 919 : ILR 2006 (1) Ker. 43 wherein it was held that the diseases enlisted under the Schedule could not be taken as an exhaustive one. The learned Single Judge relied on the said judgment and based on the finding of the Medical Board that the disease was contracted during the service of the respondent/petitioner and that it was aggravated on account of the stress and strain of service, found that it is attributable to service conditions. In the absence of a finding that the said disease was contracted due to genetic conditions or contributed by the petitioner, it was found that it could only be attributable to service conditions. Accordingly, Exts.P6 and P7 were quashed and consequential directions were issued to the respondents therein. This appeal has been filed feeling aggrieved by the said judgment of the learned Single Judge.
4. The contentions raised before the learned Single Judge were reiterated on behalf of the appellants and the respondent. The factual details noticed above would show that the name of the respondent/petitioner was struck off from the strength of the Unit and he was made to retire after about 17 years of service. The Medical Board, as per Ext.Pl, found 80% permanent disability and adjudged him medically unfit to continue in service. Admittedly, the respondent/petitioner lost vision of his left eye and the right eye vision was gradually diminishing. Diagnosis revealed affliction of Retinal Vascultis on both eyes and Vitreous Hemorrhage on the left eye. Ext.P1 would reveal that the disability was so assessed by a duly constituted Medical Board. The appellants cannot, therefore suspect or doubt the verity of Ext.P1. It be so, the appellants cannot be heard to contend against the same either directly or indirectly. The appellants have no case that at the time of his entry in service, the respondent/petitioner had any kind of disorder or disease in his eyes. It is a fact that the respondent/petitioner had continued under the services of the Border Security Force for about 17 years. Ext.P1 would reveal that it was during the said service that he contracted the disease and that the same was aggravated on account of the stress and strain of service. In this contest, Ext.Pl Medical Board proceeding Part II assumes relevance. Ext.P1, in so far as it is relevant, reads thus:
(1) Finding of the board: The board having examined No. 90477148 Ct.P.U. Sunny of BSF are of the opinion that he is suffering from Retinal Vascultis (both eyes), Vitreous Hemorrhage in left eye operated. Complete loss of vision in left eye, Diminished vision in right eye, and Diabetes Millitus and is considered unfit for further service in BSF,
(2) Was the disability contracted in service?
Yes.
(3) Was it contracted in circumstances over which he had no control ?
Yes.
(4) Is it directly attributable to the condition of service?
No.
(5) If not directly attributable to service was it aggravated thereby and if so by what specific condition?
Yes. due to stress and strain.
In the light of the findings of the Medical Board, it is only profitable and proper to refer to Rules 3A and 9 of the Rules and they, in so far as relevant for the purpose of the case, read thus:
3. For the purpose of these rules unless there is anything repugnant in the subject or context:
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3A(1)(a). Disablement shall be accepted as due to Government service provided that it is certified that it is due to wound, injury or disease which:
i. is attributable to Government service, or
ii. existed before or arose during Government service and has been and remains aggravated thereby.
(2) There shall be a casual connection between:
(a) disablement and Government service, and
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9.(2). If the Government servant is boarded out of Government service on account of his disablement, the quantum of disability pension for cent per cent disability shall be specified in Schedule II hereto annexed.
Besides the above extracted rules, the guidelines given in this regard in the Appendix that forms part and parcel of the Rules also assume relevance. The relevant guidelines given under paras. 2 and 5 read as follows:
2. In deciding on the issue of entitlement, all the evidence (both direct 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.
5. In respect of diseases, the following rules will be observed:
(a) Cases, in which it is established that conditions of Government 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 death will ordinarily be deemed to have arisen in service if no note of it was made at the time of the individual's acceptance for Government 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 Government service determined or contributed to the onset of the disease and that the conditions were due to the circumstances on duty in Government service.
(d) In considering whether a particular disease is due to Government service it is necessary to relate the established facts, in the aetiology 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.
5. The rules and guidelines extracted above are definitely meant to aid the Medical Officers and the Medical Board as well. The appellants did not dispute either the competency of the Medical Board that examined the respondent or the authenticity of Ext.P1 proceedings. A perusal of Ext.Pl would reveal that the Medical Board has found that the respondent herein was afflicted with Retinal Vascultis on both eyes and Vitreous Hemorrhage on the left eye and that the disability was contracted during the service and still further, that it was aggravated due to the stress and strain of service. It was assessed as 80% permanent disability. The fact that it was the said disablement that led to his ouster from service is beyond dispute. The cumulative effect and satisfaction of these aspects would have been sufficient to concede attributability of disablement to the B.S.F. service if the said disease which afflicted his eyes are included in Schedule IA of the Rules. Can the mere non-inclusion be enough to enable the appellants to extricate from the liability or responsibility? If in the affirmative, should it shatter the soul of law in this case? While considering the said questions, the statutory maxim 'Ratio legis est anima legis' which means' the reason of the law is the soul of the law' also has to be borne in mind.
6. There can be no doubt that this Court cannot substitute its views in place of experts' opinion. But, when once the duly constituted competent Medical Board which is conscious of all the aforesaid rules and guidelines after examining the patient certifies that the disabled personnel contracted the disease during the course of service and that it was aggravated due to the stress and stain of service and still further, that it is 80% permanent disability and therefore, unfit for further service in B.S.F., this Court cannot throw up hands in despair merely because the diseases that afflicted and disabled the respondent are not included in the Schedule. Admittedly, it is this disablement that led to his ouster from service and that no note of this disablement or disease was made at the time of his acceptance for service. It will not be inapposite to state in this context that some of the diseases like Fibrositis, Bronchitis, Eczema cited as examples in the guidelines are not included in Schedule IA of the Rules, but still in such cases assessment of disability by the Medical Board is provided. In short, the vital questions in these matters are whether the disablement of the serving personnel was contracted during the service? What is the extent of disability? Whether it was aggravated due to the stress and strain of the service and whether it led to the ouster of the personnel from the service? In this case, admittedly, the genesis of the disability is not genetic and it was not noted at the time when the respondent was inducted into the service and the Medical Board has answered all the aforesaid aspects in the affirmative and assessed him as having 80% permanent disability.
7. The next question is whether that hapless personnel who served the Border Security Force for about 17 years be denied disability pension for the mere reason that the disease which took away his precious sense of vision is not a disease enlisted under Schedule IA, Rule 3(4) of the Central Civil Service (Extraordinary Pension) Rules. The yardstick for inclusion of diseases in the list under the said Schedule would make it clear that it can never be an exhaustive list. When once it is found that the concerned personnel had contracted the disease on account of service conditions, he cannot be shown the doors empty handed. It is his sincere service during the period of about two decades that caused him the disablement. Therefore, when the competent and duly constituted Medical Board itself opined that the disability was 80% and the same was aggravated by service conditions, the benefits otherwise entitled cannot be denied to the respondent/petitioner solely for the reason that the disease was not one enlisted under Schedule IA, Rule 3(4) of the Central Civil Service (Extraordinary Pension) Rules. There is not even a whisper in the counter affidavit or in Ext.Pl that the genesis of the disease is genetic. The scheme of the rules would bring forth that the object sought to be achieved is grant of disability pension to a serving personnel invalidated and ousted from service owing to disability rendering him unfit to continue in B.S.F. Therefore, the under inclusion, rather non-inclusion of the disease that led to the disability, in the Schedule requires a purposive interpretation in the facts obtained in this case, to make the appellant entitled to disability pension. In the totality of the circumstances, we are of the opinion that the conclusions and findings of the learned Single Judge are nothing but a plausible view that can be taken in the facts obtained in this case. The declaration and directions were issued pursuant to such plausible conclusions and findings. We find absolutely no reason to interfere with such conclusions and findings which resulted in the declaration and directions.
8. However,theentitlementofapeisonneldrawinginvalidpensiontoclaimdisability pension as well, was not discussed in the Writ Petition. Even if such a personnel is disentitled to disability pension, whether the disability element could be reckoned for fixing the invalid pension etc. are questions pointedly raised in some cases and they are now pending consideration of this Court. In the circumstances, we may hasten to add that our finding regarding the entitlement of the respondent for invalid pension shall not stand in the way of the competent authority considering whether the respondent is entitled to draw both disability pension and in valid pension at a time, subject to the final decision in the pending cases. The respondent, if to be affected, shall be given an option to choose either disability pension or invalid pension. It is made clear that in such eventuality the respondent will be at liberty to challenge the order to the extent it adversely affects him.
Subject to the above, the Writ Appeal is dismissed.