Punjab-Haryana High Court
Ex-Hav. Shamsher Singh vs The Union Of India (Uoi) And Ors. on 4 May, 2006
Equivalent citations: (2006)143PLR482
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
JUDGMENT M.M. Kumar, J.
1. This petition filed under Article 226 of the Constitution prays for issuance of a direction to the respondents to grant the petitioner disability pension with all consequential benefits along with 18 percent interest from the date he has been boarded out of service on the ground that he was placed in low medical category RE.E., permanent. A further prayer for quashing order dated 5.11.2004 (Annexure P. 13) has also been made whereby the second appeal tiled by the petitioner against the order rejecting his prayer for disability pension, has been dismissed.
2. Brief facts of the case are that the petitioner joined the Military service and was enrolled in E.M.E. on 4.8.1984. On 24.2.2000 he was placed in medical category BEE permanent. He is alleged to have acquired disability on account of his posting at far off places with rigorous and hazardous terrains. Eventually the petitioner was released from the Army on medical ground on 31.7.2000 but no disability pension was paid to him. The claim of the petitioner for disability pension was rejected on 21.1.2001 (Annexure P.2) by holding that the disease was neither attributable nor aggravated by the military service. The appeal tiled by the petitioner was forwarded by the respondents for consideration to the higher authorities as is evident from the perusal of order dated 22.3.2001 ( Annexure PA). The appeal was rejected on 16.10.2003 (Annexure P.8). The second appeal filed by the petitioner was forwarded to the competent authority on 28.1.2004 (Annexure P. 10). The petitioner has approached this Court by filing C.W.P. No. 11983 of 2004 which was disposed of by issuing direction to the respondents to decide his second appeal (Annexure P12). Accordingly, his second appeal has been rejected on 5.11.2004 (Annexure P13).
3. After hearing the learned Counsel for the parties at some length, perusing the record and the relevant rules and regulations, we have reached the conclusion that this petition is devoid of merit and is thus liable to be dismissed. Regulation 173 of the Pension Regulations for the Army, 1961 (for brevity the 'Regulations') and sub Rule 2A of Rule 13(3) of the Army Rules, 1954 clearly envisages that disability pension is admissible to a person in case the disability is attributable to or aggravated by military service in non battle casualty and is assessed 20 percent or more. Regulation 173 is extracted below for facility of reference:
173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non battle casualty and is assessed 20 percent or over.
The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in appendix 11.
4. A perusal of the afore-mentioned regulation would reveal that if a person is boarded out of service on account of disability which is attributable to or aggravated by military service in a non battle casualty then disability pension is granted. A further condition required to be fulfilled is that disability must be 20 percent or more. The question whether disability is attributable to or it has been aggravated by military service is required to be determined under the rules as enumerated in Appendix II. It is admitted position that disability of petitioner is 11 to 14 percent and therefore he cannot be held entitled to the benefit of Regulation 173 because he did not fulfill the basic condition of disability to the extent of 20 percent or more. Therefore, the first prayer of the petitioner for disability pension is without merit and is liable to be rejected.
5. The second prayer of the petitioner that he is entitled to be recalled in the army service is equally devoid of merit because under Rule 15A read with Sub-rule 2A of Rule 13, the petitioner was released from the Army as he was found to be in lower medical category which is lower than AYE. The petitioner was thus found to be lacking prescribed physical standard. Such a release as contemplated by Rule 13(2) and Rule 15-A of the Rules. The afore-mentioned rules are extracted below for facility of reference:
13. Authorities empowered to authorise discharge. -
(1) and (2) xx xx xx xx (2A). Where the Central Government or the Chief of the Army Staff decides that any person or class or persons subject to the Act should be discharged from service, either unconditionally or on the fulfillment of certain specified conditions, then, not withstanding anything contained in this rule, the Commanding Officer shall also be the competent authority to discharge from service such person or any person belonging to such class in accordance with the said decision.
15.A Release on medical grounds.- (1) An officer who is found by a Medical Board to be permanently unfit for any form of military service, may be released from the service in accordance with the procedure laid down in this rule.
(2) The President of the Medical Board shall, immediately after the Medical Board has come to the conclusion that the officer is permanently unfit for any form of military service, issue, a notice specifying the nature of the disease or disability he is suffering from and the finding of the Medical Board and also intimating him that in view of the finding he may be released from the service; every such notice shall also specify that the officer may, within fifteen days of the date of receipt of the notice, prefer a petition against the finding of the Medical Board to the Chief of the Army Staff through the President of the Medical Board.
Provided that where in the opinion of the Medical Board the officer is suffering from a mental disease and it is either unsafe to communicate the nature of the disease or disability to the officer or the officer is unfit to look after his interests, the nature of the disease or disability shall be communicated to the officer's next of kin who shall have the like right to petition.
(3) If no petition is preferred within the time specified in Sub-rule (2), the officer may be released From the service by an order to that effect by the Chief of the Army Staff (or the Adjutant General) (4) If a petition is preferred within the time specified in Sub-rule (2), it shall be forwarded to the Central Government together with the records thereof and recommendation of the Chief of the Army staff (or the Adjutant General). The Central Government may, after considering the petition and the recommendation of the Chief of the Army Staff (or the Adjutant General) pass such order as it deems fit]
5. A perusal of Rule 15A of the Rules would show that if any person has been found permanently unfit for any form of military service then a notice is required to be issued to such a person specifying the nature of disease or disability he is suffering from (he finding of the Medical Board. Such a person is also required to he told that in view of the finding he may be released from service. The officer could prefer a petition within fifteen days to the Chief of the Army Staff through the President Medical Board. In case the officer suffers from mental disease then intimation has to be sent to the next of kin. If no petition is filed within fifteen days then the officer may be released from service. It is admitted position that the petitioner was released from service on 31.7.2000 by following the afore-mentioned provision as is evident from order dated 28.2.2000 (Annexure P.II). It could not be disputed that the petitioner was brought before the Release Medical Board held on 6.6.2006 which considered his disease as "Bilateral Posterior sub Capsular cataract both eyes". It was neither considered attributable to or aggravated by military service being constitutional disorder. The Medical Board assessed the same at 11 % to 14%. These facts are clear from a perusal of para I of preliminary submissions. It is well settled that the Courts are not to reopen the medical opinion expressed by the Release Medical Board as has been held in Controller of Defence, Accounts (Pension) and Ors. v. S. Balchandran Nair . Moreover, once the petitioner has been found to be permanently unfit then there cannot be any possibility of recalling him to serve the army. Therefore, we do not find any substance in the second prayer made by the petitioner.
6. In view of the above, this petition fails and the same is dismissed.