Jammu & Kashmir High Court
Shakti Devi vs Union Of India (Uoi) And Ors. on 24 January, 2006
Equivalent citations: 2006(2)JKJ683
JUDGMENT Y.P. Nargotra, J.
1. This writ petition has been filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir by widow of Solider Balbir Singh who was serving in the Army and has since been expired. The said Balbir Singh Was discharged from the Army on 30th of May 1976 on medical grounds, by then he had rendered four years, six months and twenty one days service. As per the Medical Board, he was suffering from Traumatic Gangrene left little finger (OPTD)(Amputation Done). At the time of his discharge, his disability was assessed at 20%, and therefore, in terms of the Pension Rules, he was granted disability pension w.e.f. 31.5.1976 to 18.01.1986 for a period of ten years at the stipulated rate. Again in terms of pension Rule 185 of the Army Pension Regulations 1961, re-survey with regard to the disability of the husband of the petitioner was held by the medical board constituted by the Army. The Medical Board assessed the disability of the deceased Balbir Singh again at 20% for a further period of ten years w.e.f 19.1.1986 to 30.12.1995. Accordingly for this period also disability pension under the rules was released in favour of the husband of the petitioner. After the expiry of second spell of ten years 3rd re-survey of the deceased Balbir Singh was got conducted from the Medical Board by the respondents on 14.2.1996, and disability assessed at 20%. Accordingly, pension case of the petitioner was submitted to PCDA (P) Allahabad for adjudication vide Army Corps Records letter No. l050155/RA/23/Pen dated 18.03.19.96.
2. As per the stand of the respondents PCDA(P) Allahabad adjudicated upon the case in consultation with Medical Advisor (Pension) who is attached to PCDA(P) Allahabad appointed by Dte Gen AFMS New Delhi for uniform application of Entitlement Rules. The PCDA(P) Allahabad in exercise of the powers conferred upon it under Rule 17(b) of Entitlement Rules 1982, did not accept the assessment of the said Balbir Singh at 20% as assessed by the Medical Board and assessed the same at 6 to 10%. Since the disability was less than 20%, therefore, the pension of the husband of the petitioner was stopped w.e.f 31.12.1995. The petitioner seeks to challenge the legality of the stoppage of the disability pension of her husband.
3. The contention of Mr. Qureshi learned Counsel for the petitioner is that in terms of the Regulations 185 the third medical assessment of the disability was not permissible as per rules. He submits that after the 2nd assessment the disability was found to be persisting and remained unmodified so disability pension was to be sanctioned for life. He further submits that even on third re-survey the disability of said Balbir Singh was assessed by the medical board at 20% and the same could not validly be reduced by PCDA(P) without getting him re-examined by a Medical Board if he was not satisfied with the given opinion of medical board. He submits that stoppage of the pension at the instance of PCDA(P) Allahabad is illegal, therefore, should be set aside.
4. On the other hand, the contention of Mrs. Goswami, learned Counsel for the respondent is that though Regulation 185 does not speak of 3rd re-survey, but according to her in the administrative discretion of the respondents third re-survey of the medical board could be held. The findings of the 3rd medical board according to her were only recommendary in character and could be disregarded legally by PCDA(P) if found not acceptable and disability could be reduced by it on re-assessment and as such, in such circumstances no exception can be taken to the stoppage of the pension of the husband of the petitioner.
5. Regulation 185 of the Army Pension Regulations reads as under:
185.(a) If the disability is certified on the basis of an invaliding or resurvey medical board to be incapable of improvement disability pension shall be granted for a period of 10 years in the first instant. During this period the pensioner will have a right to claim re-assessment of his pension on the basis of aggravation, if any. Where the disability pension is modified as a result of reassessment, the pension shall again be granted for a period of 10 years from the date of the revised award provided the disability is still regarded as incapable of improvement each successive assessment at a higher or lower rates will be for a 10 years period during which the pensioner will be given an opportunity to have his pension reassessed on the basis of further aggravation,
(b) When the percentage of disablement has remained unmodified for a period of 10 years, the pensioner shall be brought before Re-survey Medical Board at the end of ten years and in the event of the disability still being regarded by the pension shall be sanctioned for life. Thereafter, no revision of pension will be admissible.
(c) In cases where he invaliding disability as loss of limb (s) total loss of sight, loss of one eye, amputation, etc. and where the question of improvement/worsening of its physical condition does not arise, the award shall be sanctioned for life in the first instance itself.
6. From the reading of the above regulation, it is manifest that for the first time the disability could be assessed for a period of 10 years, and after the expiry of this period pensioner could be brought before the medical board for re-assessment of his disability and if on the second re-assessment by the Medical Board the disability was found to be still persisting and incapable of improvement then pension has to be sanctioned for life. This apart clause 'C' envisages that if disability is loss of limb, total loss of sight, loss of one eye, amputation, etc. then pension is to be sanctioned for life in the first instance itself.
7. In the present case the disability was assessed at 20%, admittedly, because the pensioner had lost left finger of left hand. It is also admitted case of the respondents that disease "TRAUMATIC GANGRENE LEFT LITTLE FINGER (OPTD) (AMPUTATION DONE )" was attributed to Military service, as such , it was the case of loss of finger, and was covered by clause 'c' of Regulation 185. Therefore, in view of the provision contained in Clause (c) of Regulation 185 of Army Pension Regulations, the disability pension was to be sanctioned in favour of the deceased Balbir Singh for life in the first instance. Respondents granted the disability pension in favour of the deceased Balbir Singh for a period of 10 years only.
8. Be it so the disability was first assessed for a period of ten years, it was re-surveyed by the Medical Board after the expiry of ten years and was found to be persisting un-modified at the same percentage therefore, in view of clause 'b' the disability was to be sanctioned for life. It appears that respondents did not take note of Clause (b) of Regulation 185 and sanctioned pension for a further period of ten years, instead of for life. After the expiry of another ten years spell the case of the pensioner deceased Balbir Singh was got re-examined by the Medical Board for the purposes of assessment of his disability which could not have been done legally there being no provision for third re-survey. Since third re-assessment was not legal, therefore, PCDA (P) Allahabad possessed no jurisdiction to review the assessment and should have sanctioned the pension for life on the basis of second re-survey made by the Medical Board. This is one aspect of the matter.
9. The other aspect of the matter is that even third time the Medical Board on re-survey had found the disability at 20%. The PCDA(P) could not havevalidly superseded the opinion of the Board without getting said Balbir Singh re-examined by another Medical Board for reaching on the conclusion that disability had reduced from 20% to 6 to 10%. The expert opinion rendered by the Medical Board is ordinarily binding upon the pension sanctioning authority. If the pension sanctioning authority doubts the correctness of such an opinion and wants to re-assess the same then it can be done only by getting the disability of the pensioner re-surveyed from another medical board consisting of experts more in number than the members constituting the first medical board. Opinion rendered by a medical board stands on a higher pedestal than the opinion of a lone medical expert.
10. It is not the case of the respondents that disability of the pensioner was re-assessed in the light of any opinion of another medical board. The reduction of the percentage of the disability of the pensioner from 20% to 6-10 percent therefore was unjustified and consequentially the order of stoppage of pension is unsustainable. At the time of second re-survey by the Medical Board, the disability at 20% was found persisting and remaining un-modified, therefore, in view of mandate of Regulation 185 (b) the pension was to be granted for life. The re-assessment made by the PCDA (P) Allahabad by order dated 14.2.1996, is therefore, illegal the same is therefore, quashed and the pensioner- deceased Balbir Singh husband of the petitioner is held entitled to disability pension till the date of his death. Therefore, petitioner widow of deceased Balbir Singh is entitled to all the consequential benefits with interest at the rate of 6%. The respondents shall compute and release the same in favour of the petitioner along with arrears within a period of four months from today.