Karnataka High Court
Ex Cfn No. 14589670 Arul Raj vs P.C.D.A. (P.G. 3 Section) (Represented ... on 23 February, 2006
Equivalent citations: 2006(2)KARLJ468, 2006 (3) AIR KAR R 159
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. Writ petition by a person who had been recruited to the Indian Army as solder in the year 1985, who was unfortunately invalidated out of service in the year 1989. The invalidation from service was on the premise that the Medical Board had assessed that the petitioner was suffering from a disability to an extent of 60% and was suffering from Schizophrenia (295) and unfortunately for the petitioner also opined that it was a constitutional disorder and not connected with service.
2. Petitioner who had barely put in four years of service, not only lost his job but also his pension and unfortunately he did not even get the disability pension. Petitioner has been fighting a losing battle for getting what is known as disability pension.
3. Under the Army Act, 1950, the Army Rules, 1964 and Pension Regulations for Army, 1961, a person who is invalidated from service is also entitled to get what is known as disability pension, if at the time of leaving service, a person is suffering from a disability which is assessed over and above 20% by the Medical Board and if the disability is attributable to military service over and above the regular pension.
4. Regulation 173 of the Pension Regulations for Army, 1961 (for short, 'the Regulations'), which is relevant for the purpose, reads as under:
173. Unless otherwise specifically provided a disability pension may be granted to an individual who is invalidated from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20% or over.
The question whether a disability is attributable to or aggravated by military service shall be determined under the Rules in Appendix II.
5. Petitioner, it appears, repeatedly represented to the respondents seeking for grant of disability pension, but the respondents having not obliged, had approached this Court once earlier by filing W.P. No. 23149 of 2002, which came to be allowed in terms of the order dated 30-3-2005, a copy of which is produced at Annexure-A to the writ petition, inter alia, setting aside the orders of the respondents and directing to examine the matter afresh, by keeping in mind as to whether the medical illness was acquired prior to entry into service or was acquired during the course of his service in the army, and this Court had also opined that having regard to the inordinate delay in approaching the Court, if the respondent-authorities, authorities record a finding in favour of the petitioner, the petitioner will be entitled to claim such disability pension only on and after 10-6-2002.
6. The matter having received consideration afresh at the hands of the respondents, but having gone again against the petitioner in terms of the communication dated 27-6-2005 (copy at Annexure-C), the petitioner is again before this Court.
7. Brig. M.K. Krishnamurthy, learned Counsel appearing for the petitioner has put forth several contentions. One main submission is that the record clearly indicate that the petitioner was not suffering from any disability much less an illness of the nature of Schizophrenia at the time of entry into service; that within four years if the medical board of the respondent-organisation assessed and opined that he was suffering from a disability of 60% due to the decease - Schizophrenia (295) - it is obviously attributable to the tension, pressure and workload in defence service; that at any rate a presumption arises that it can only be attributable to military service and it is a situation as ruled by a learned Single Judge of the Punjab and Haryana High Court in the case of Santokh Singh Gill v. Union of India 1992(6) SLR 749 (P and H), the authority is wrong in concluding that the petitioner was not entitled to disability pension as the Medical Board had opined that such condition was not attributable to nor aggravated by the military service.
8. It is also the submission of learned Counsel for the petitioner that even the opinion of the Medical Board that the disability was constitutional one and not attributable to military service, is not a tenable opinion; that it is clearly wrong as could be inferred from another decision of the Punjab and Haryana High Court in the case of Kanta Devi v. Union of India 1991(1) SLR 68 (P and H), as also in the decision rendered by this Court in the earlier round of litigation by the very petitioner.
9. The respondents having been put on notice, have entered appearance through Sri A. Padmanabhan, learned Central Government Standing Counsel and have also filed counter.
10. It is inter alia averred in the statement of objections that the case of the petitioner has been strictly considered in accordance with the Rules and Regulations relating to entitlement of disability pension and it is based on the records in the light of the Regulation 173 of the Regulations; that the Medical Board having clearly opined that the petitioner's disability viz., Schizophrenia (295) assessed to the extent of 60% disability was not one attributable to military service, but constitutional; that it is precisely this opinion of the Medical Board which disentitled the disability pension to the petitioner; that the action of the respondents is fully in consonance with the materials on record and based on the relevant rules and regulations and that there is no occasion for interference in writ jurisdiction and urges for dismissal of the writ petition.
11. To support his submission, learned Standing Counsel has placed reliance on the decision of the Division Bench of our High Court in the case of Union of India, v. N.M. Venkata Re'ddy W.A. No. 987 of .1996, DD: 13-8-1997, wherein the Division Bench of this Court had indicated that in a situation where persons who had been in sen/ice for a short while and who approaches for relief by filing petition before this Court after an inordinate delay, it is not a fit case for entertaining the petition for grant of any relief. The Division Bench also held that substituting the opinion of the Court as was done by the learned Single Judge for the opinion of the Medical Board was not warranted, particularly as the learned Single Judge has failed to deal with a particularly certificate issued by the doctor was not satisfactory etc. The Division Bench by this decision has reversed the decision of the learned Single Judge in N.M. Venkata Reddy v. Union of India and Ors. 1997(4) Kar.UJ. 490.
12. Though the delay aspect to some extent be was got over by the petitioner, as indicated in the order passed by this Court in the earlier round of litigation, the submission of Brig. Krishnamurthy, learned Counsel for the petitioner that the opinion of the Medical Board was not very correct by placing reliance on the decision of the Punjab and Haryana High Court in the case of Kanta Devi, cannot be accepted as a ratio, as the decision of this Court rendered by the Division Bench is binding and has to be followed.
13. Sri Padmanabhan, learned Standing Counsel appearing for the respondents also placed reliance on the decision of the Supreme Court in the case of Union of India v. Dhir Singh China . In this decision, the Supreme Court has ruled that the presumption as was drawn and the decision of the Punjab High Court in the case of Santokh Singh Gill was not proper that even assuming that a person was not satisfied with the opinion of the Medical Board, it could be got over only in accordance with Regulation 53 and if that course of action had not been taken, the petitioner cannot seek to challenge the opinion of the Board etc.
14. The case of Dhir Singh China, was one where a person who had retired from army service on superannuation at and the time of retirement had. been assessed to certain extent of disability and therefore sought for disability pension over and above the normal pensionary benefits. In the present case, the submission of learned Counsel for the petitioner is that as the petitioner was invalided from military service within four years from the date of joining service, he is not even eligible for any other type of pension and if at all the only possible pension he can get will be disability pension, even which is sought to be unjustly denied.
15. The disability pension is one which is provided over and above and normal pensionary benefits, if it is found that the person has acquired disability due to military service. The disability may be one aggravated due to military service or which began during the military service and because of the nature of service. A reading of the relevant regulation viz., Regulation 173 read with its appendices indicate that a disability pension is given in. all such cases where it is reasonably possible to infer that such disability is attributable to military service. In fact under Appendix II, even a presumption is drawn in favour of a person who acquires disability during military service if the opinion of the Medical Board is not specific or has not expressed any cause for disability. Unfortunately, in the case of petitioner, the opinion of the Medical Board is that it is a constitutional disability not attributable to military service. A clear opinion of this nature cannot bo understood in any other manner than that the disability which the petitioner had acquired may be assessed at the extent of 60% was not one attributable to military service and it cannot be given any other meaning and it is neither possible nor proper for this Court to rewrite an opinion of this nature or hold the opinion as not a proper opinion even though the learned Counsel for the petitioner would urge that the very opinion was an erroneous one etc,
16. In the light of the records being against the petitioner in the sense the Medical Board had clearly expressed that the disability was not attributable to service conditions or while in service, there was no v/ay of petitioner being extended the disability pension.
17. If the authorities have adhered to the Rules and Regulations, and on. the facts and circumstances of the case and relevant law, no exception can be taken to such order. However, pathetic petitioner's case may be, it is not the function of this Court to dole out any largesse on sympathetic consideration, as if it is to be done, it will be by laving down a law which is not in consonance with the Rules and Regulations and that will be defeating the very object of having a common/uniform rule or regulation which is the essence of rule of law. It is precisely for this reason, the authorities functioning under these Rules and Regulations some times may blow hot and cold, may pick and choose, may favour persons may victimize persons; that the conduct and functioning of such authorities are sought to be regulated by the Rules and Regulations which bind them. A judgment of this Court is to ensure such public authorities function within the parameters of such Rules and Regulations and not to issue a direction to either contravene the same or to act in any way contrary to the existing rules and regulations. If any rule or regulation is found to be wanting or inadequate, it is the function of the law makers to take note of it and make suitable provision (of law). The difficulties or hardship that may be experienced in a given case cannot be generalized to give a new interpretation or different dimension to the statutory provisions.
18. It is for these reasons, this writ petition is dismissed.