Jammu & Kashmir High Court
Shamsher Singh vs Union Of India & Ors on 20 March, 2009
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 1219 OF 2005 Shamsher Singh Petitioners Union of India & Ors. Respondent !Mrs. Surinder Kour, Advocate ^Mr. P.S. chandal , Advocate Hon'ble Mr. Justice H. Imtiyaz Hussain Date: 20/03/2009 :J U D G M E N T :
Petitioner was enrolled in the Army in the year 1982. On completion of basic military training at Artillery Centre, Nasik Road Camp, he was posted to unit for rendering further service. On 16.10.1995 he was admitted in Command Hospital (WC) Chandimandir and was discharged form there on 8.11.1995 for diagnosis "NEUROSIS". The petitioner was placed in Low Medical Category CEE (Temporary) for six months due to disease 'NEUROSIS ICD-300' w.e.f. 6.11.1995. On his subsequent review, the petitioner was placed in Low Medical Category BEE ( Permanent) w.e.f. 6.5.1999 and retained in service in the Public interest, being permanent Low Medical Category BEE ( Permanent) for so long as his services were required. He was again admitted in Command Hospital ( WC) Chandimandir on 3rd Oct. 2000 and was discharged from there on 24th Jan. 2001. As per 2 opinion of classified specialist ( Psychiatry) dated 1.12.2000 he was hospitalized with aggravation of his symptoms. Psychiatric evaluation revealed anxiety, depression and disturbed bio-drives. Response to the treatment was unsatisfactory due to which the medical authority did not recommend his retention in service, so he was declared unfit for further retention in military service. The petitioner was examined by the Medical Board who formed an opinion that the petitioner was having disability "NEUROSIS ( OLD) 3000,167 which is neither attributable to nor aggravated by military service and assessed percentage of disability @ 20% for two years. It was further opined by the invaliding Medical Board that the disability of the petitioner was a constitutional disorder and not connected with the military service. On the basis of the opinion formed by the invaliding Medical Board, the case of the petitioner was recommended to be invalided out of service in Medical Category EEE i.e. permanent unfit for military service. As such the petitioner was invalided out of service w.e.f. 7.2.2001 with total qualifying service of 16 years 09 months and 28 days for which he was sanctioned service pension vide P.P. Order No. S/061175/2001 dated 18th Oct. 2001. The petitioner applied for disability pension but the same has been disallowed by the respondents on the ground that the disease with which he was suffering was neither attributable to nor aggravated by the military service but was constitutional in nature.
Through the medium of the present petition the petitioner has prayed for writ of certiorari for quashing the order No. D- 3/73/597/12/2001 dated 14.3.2002. He has further prayed for a direction to the respondents to grant disability pension to him and to fix and release such pension retrospectively w.e.f. the date the petitioner was discharged and boarded out from service on account of disability.
3The respondents have in their detailed reply stated that as per Regulation 173 of the Pension Regulations for the Army 1961, disability pension can be granted to an individual provided disability is viewed as either attributable to or aggravated by the military service and percentage of disability is assessed at 20% or above. Since the disease with which the petitioner was suffering was in the opinion of the Medical Board neither attributable to nor aggravated by the military service the petitioner cannot be granted disability pension under the said regulations.
Heard. I have considered the matter.
Learned counsel for the petitioner relies on two Division Bench authorities of this Court Union of India v. Surjeet Kumar 2007 (2) SLJ 856 and Union of India v. Sepoy Suram Singh LPA (SW) 141/2005 decided on 1.10.2008 in support of the contentions raised.
He submitted that though the Medical board in the present case has opined that the disease with which the petitioner was suffering was neither attributable to nor aggravated by the military services, there is no record on file to show that the disease was of constitutional in nature. Learned counsel would submit that at the time the petitioner was enrolled in Army he was subjected to a medical test in which he was declared fit for the army service. There is no medical opinion to show that the disease could not have been deducted on medical examination prior to the acceptance for service. In view of these facts the presumption under regulation 48(9) is that the disease would be deemed to have arisen during service.
Learned counsel for the respondents as on the other hand stated that the disease "NEUROSIS ICD-300 is not mentioned in the list of diseases as contained in the Appendix of the Regulations as such it cannot be said that the disease has been contracted 4 during the course of Army Service. In support learned counsel has placed reliance on Davinder Singh v. Union of India & Ors. 2006(2) JKJ 300 HC and Union of India v. Surinder Singh Rathore 2008(2) SC 623 .
The issue arising in the present case has elaborately been dealt with by the Division Bench of this Court in Union of India v. Surjeet Kumar where the court after quoting regulation 48 has in para 9 of the judgment observed as under:-
" Perusal of various rules of the entitlement Rules demonstrates that an Army personnel invalided out from service enjoys a presumption in his favour of his entitlement to disability pension because the disease or disability, suffered by him, is presumed to be attributable to, or aggravated by military service, and such claimant is not required to be called upon to prove the conditions of his entitlement. Rule 9 of the Army Regulations, supports this presumption. Rule 14(b) of the Entitlement Rules further demonstrates that in case no note of the disease from which the respondent had been suffering, was made at the time of his acceptance for military service, the disease would be deemed to have arisen in service unless however, the medical opinion, for reasons to be stated, notices that the disease was such which could not have been detected on medical examination prior to individual's acceptance for service."
The court has further observed in para 10 of the judgement as under:-
"In view of the position demonstrated by the above quoted two rules of the Entitlement Rules, the position becomes quite clear that in case the subsequent medical opinion of the Board of Doctors, holds the disease to be a constitutional disease, the individual would be disentitled to claim disability pension. The medical opinion of board of Doctors would, however, prevail only if the Board had recorded that the disease was such which could not have been detected on individual's medical examination at the time of his acceptance in the Army service."5
From the service record of the respondents as reflected in the objections of the respondents and annexures placed alongwith objections it appears that the disease has been contracted by the petitioner during the course of his service. Admittedly the petitioner was medically fit at the time he joined the army service. There is no observation in the records that the disease was such as could not have been deducted at the time of petitioner's acceptance into army service. Applying the law laid down by the said Division Bench authority I find the respondents have not gone into this aspect of the matter and have not properly appreciated the case as projected by the petitioner. The authorities submitted by the learned counsel for the respondents are in these circumstances distinguishable and not applicable to the present case.
In these circumstances I find due force in the please raised in the present petition. I find the respondents have rejected the petitioner not looking into the legal position properly.
The result is that this petition is allowed. Order impugned is set aside. Respondents shall reconsider the matter regarding grant of disability pension in favour of the petitioner and pass appropriate orders.
Disposed of.
Jammu 20.3.2009 ( H. Imtiyaz Hussain) Judge Mujtaba *CS*