Nirmal Singh, J.
1. Petitioner who came to be enrolled in the Army on 4th of October, 1978, was discharged from service on 21st of August, 1981, on compassionate grounds at the request made by the petitioner. Thereafter, he was re-enrolled in the Defence Security Corps on 31st of May'82, and served upto 1987, when he suffered from intense pain in the head and applied for medical leave which was granted to him. Before the petitioner could recover and join back his duties, he received a communication dated 25th of May'88, from the respondents that the petitioner has been discharged from service on medical grounds. Petitioner thereafter applied to respondents for grant of disability pension, which was rejected. He filed a writ petition bearing SWP No. 2012/01, which was disposed of vide judgment dt. 27th of March02.
2. The case of the petitioner is that after the writ petition aforementioned was allowed by this Court, the respondents implemented the judgment and released service as well as disability pension in favour of the petitioner @Rs.l275/- per month w.e.f. 1st of Jan'96, for life and Rs. 465/- per month from the same date till the next Review Medical Board is held. It is stated that in Nov'02, the petitioner was directed by respondent No. 2 to appear before the Review Medical Board at Army Hospital, Satwari, Jammu, where he appeared for re-assessment of his disability and remained admitted in the hospital for three days. It is stated that the petitioner was informed that his disability has been assessed at the same rate which was at the time of his discharge.
3. The grievance of the petitioner is that even though his disability was assessed at 30% at the time of his discharge and while he remained admitted in the hospital, for review of his disability by the Medical Board, he was informed that the disability has been assessed at the same rate but vide letter No. PEN/RSMB-2/7237895/152 dt. 23rd of Feb04, the petitioner was intimated that his disability has been assessed at less than 20%, i.e. 0%, and therefore, he is not entitled for future disability pension. It is stated that during the stay of the petitioner in Military Hospital at Satwari when he was to appear before the Review Medical Board, no tests whatsoever were conducted by the said Board and he was not re-examined. It is stated that under these circumstances, lowering of the disability of the petitioner from 30% to 0% without any medical check up by the Review Medical Board and resultant denial of the disability pension is not in accordance with the rules. It is stated that in terms of Army Pension Regulation 173-A, the army personnel who are placed in lower medical category permanently and who are discharged being non suitable to any other employment in their own trade/category, are to be granted disability pension irrespective of their percentage of disability. It is thus stated that the action of respondents in denying the disability pension to the petitioner is not in accordance with the law.
4. Respondents in their objections have stated that the petitioner who was enrolled in the Remount Veterinary Corps on 4th of Oct'78 was discharged from service on 21st of Aug'81 under Rule 13(3) item III (iv) of Army Rules, 1954, at his own request on extreme compassionate grounds. It is stated that thereafter petitioner was re-enrolled in Defence Security Corps in Medical category AYE by the Recruiting Medical Officer but the said officer at the time of enrolment of the petitioner could not detect the constitutional disorder from which the petitioner was suffering i.e. Hysterical Reaction ICD 300(b). It is stated that in July87, when the petitioner was serving with 106 DSC Platoon attached to Naval Stores Depot Ghatkopar, Bombay, he was admitted in INHS Asvini Colaba, Bombay, where he remained under treatment and was detected a case of Hysterical Reaction. The petitioner was again subjected to medical treatment in the said hospital in July87, and thereafter in Nov87, the petitioner was examined by the Medical Board at INHS Asvini Colaba, Bombay, which Board recommended to be invalided out from service in medical category EEE (Permanent) due to the aforesaid disability. The said recommendation was accepted by the competent authority and the petitioner was boarded out of service on 27th of Nov87. It is further stated that the petitioner was paid the disability pension after his earlier writ petition was allowed by this Court and this was paid to him @30% as assessed by the Medical Board. The further stand taken is that thereafter, the petitioner was examined by Re-Survey Medical Board for review of his disability on 23rd Dec02, which Board opined that the disability from which the petitioner suffered and on the basis of which he was boarded out of service is no more in existence and as a result, the degree of the disability was assessed at 00% for life. It is under these circumstances stated that the disability pension of the petitioner was stopped after the aforesaid assessment made by the Re-Survey Medical Board. So far as the assertion of the petitioner that he is entitled to disability pension in terms of Army Pension Regulation 173-A is concerned, it is stated that only those army personnel who are placed in lower medical category other than EEE are entitled to benefit under the aforesaid Regulation and the petitioner who was boarded out of service being placed in medical category EEE is not entitled to any benefit under the aforesaid Regulation. It is thus stated that the petitioner cannot claim disability pension after the opinion has been expressed by the Re-Survey Medical Board that the degree of the disability of the petitioner is 00%.
5. A perusal of Annexure R.1 with the objections filed by the respondents which are the proceedings conducted by the Invaliding Medical Board, shows that the petitioner has been recommended to be invalided out from service in medical category EEE(Psy) Permanent and the disability of the petitioner has been assessed at 30%. The Re-Survey Medical Board, which as per the stand taken by the respondents examined the petitioner assessed the disability of the petitioner at 00% permanent. The said assessment of the Re-Survey Medical Board appears to be doubtful as the percentage of the disability may be 00% but the same cannot be said to be permanent as normally no opinion can be expressed in this regard even by a Specialist doctor that the disease from which an individual suffered and has recovered at any stage cannot develop the same in future. Even otherwise, the assertion made by the petitioner in the writ petition is that even though he remained admitted in the hospital for three days for re-examination by the Re-Survey Medical Board, he was not medically checked up by the said Board and was only told that his disability has been assessed at the same rate as it was during the time of his discharge from service.
6. In view of the above, in order to reach to a just conclusion, it will be appropriate if the petitioner is got medically checked up from a civil medical board. It is accordingly directed that Medical Superintendent, Government Medical College, Jammu, would constitute a Medical Board for examination of the petitioner. Petitioner to appear before the Medical Superintendent of the said hospital along with a copy of this order on 28th of July'08, who shall take further steps as indicated above and would accordingly intimate the petitioner about the date on which he has to appear before the said Medical Board. The report of the Medical Board would be submitted to this Court in a sealed cover. The whole exercise be completed within a period of one month from the date, a copy of this order is made available to the Medical Superintendent, GMC, Jammu.
7. Registry is directed to list this matter immediately after the report as indicated above, is received by this Court.