IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Writ Petition No. 91 of 2007
DATE OF DECISION : FEBRUARY 25, 2009
NO.13733810-H EX-HAV. HIRA SINGH
....... PETITIONER(S)
VERSUS
UNION OF INDIA & ORS.
.... RESPONDENT(S)
CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr. Rajesh Sehgal, Advocate, for the petitioner(s).
Ms. RB Sharma, Advocate, for respondents.
AJAI LAMBA, J. (Oral)
Ex-Havaldar Hira Singh has filed this petition under Articles
226/227 of the Constitution of India praying for issuance of a writ in the
nature of certiorari for quashing order dated 5.12.1998 (Annexure P-1) and
order dated 31.7.2004 (Annexure P-6). The effect of the impugned orders
is that the disability element of pension claim of the petitioner has been
rejected.
Undisputed facts are that the petitioner was enrolled in the
Civil Writ Petition No. 91 of 2007 2
Army on 14.11.1979. At the time of entry in Army, the petitioner did not
suffer from any disability as no note was given to that effect by the
medical board that examined the petitioner.
The petitioner was admitted in Military Hospital on
14.1.1997, suffering from Primary Hypertension V-67. The petitioner was
downgraded to Low Medical Category CEE (Temporary) on 3.3.1997. On
review, the petitioner was placed on Low Medical Category BEE
(Permanent) for two years with effect from 20.9.1997 to 11.9.1999. The
petitioner was invalidated out on 31.5.1998.
In brief, the contention of the learned counsel for the
petitioner is that the Medical Board examined the petitioner and gave a
clear opinion that he had suffered disability on account of Hypertension,
which was aggravated by military service. The matter was forwarded to
Principal Controller of Defence Accounts (Pension), Allahabad (for short
‘PCDA(P)’) who, however, declined the relief of disability pension to the
petitioner.
It is the contention of the learned counsel for the petitioner
that the PCDA(P) did not get the petitioner re-examined by any medical
board so as to reassess/review the case of the petitioner to come to a
different conclusion. No reasons have been assigned and no material has
been placed before this court to justify the action of PCDA(P). In this
regard, learned counsel for the petitioner has relied on a judgment of the
Hon’ble Supreme Court of India in Civil Appeal No.164 of 1993 (arising
out of SLP(c) No.4233 of 1992) titled ‘Ex Sapper Mohinder Singh vs.
Union of India’ decided on 14.1.1993, which has been followed by a
Civil Writ Petition No. 91 of 2007 3
Division Bench of this Court in Ex-Subedar Jasmail Singh Vs Union of
India and others, 2006(2) Law Herald 1480.
Learned counsel for the petitioner has also relied on a
judgment of this Court rendered in Civil Writ Petition No.1687 of 2002,
decided on 31.5.2006 (Ex-Recruit Jagjit Singh vs. Union of India &
Others).
Learned counsel for the respondents has not been able to
dispute the facts, as stated above. It would be appropriate to reproduce
the stand of the respondents which, in effect, states the case of the
petitioner. In this regard, reply to paras 7 to 11 (on merits) of the written
statement is extracted below:-
“7 to 11. That in reply to para 7 to 11 it is submitted
that during the course of service, the petitioner was
admitted in 167 Military Hospital on 14.1.1997 where his
disease ID ‘PRIMARY HYPERTENSION’ was detected.
In this context refer details of petitioner’s hospitalization/
medical categorization given in brief of case. The
petitioner was downgraded to medical category CEE
(Temporary) with effect from 3.3.1997 due to disease
‘PRIMARY HYPERTENSION’. On review he was
placed in low medical category BEE (Permanent) for
two years with effect from 20.9.1997 to 11.9.1999. As
per Army order 46/80 the employment of permanent low
medical category personnel, at all times, is subject to
the availability of suitable appointment commensurate
with their medical category and also to the provision that
this can be justified in the public interest and that their
retention will not exceed the sanctioned strength of the
Regiment/ Corps. When such an appointment is not
available or when their retention exceeds the
Civil Writ Petition No. 91 of 2007 4sanctioned strength of the Regiment/ Corps, they will be
discharged irrespective of the service put in by them.
Though, the petitioner was willing to continue in service,
but shelter appointment commensurate with his medical
category was not available with the unit. The petitioner
was discharged from service under Army Rule 13(3)
item (v) with effect from 31.5.1998 (AN) and was finally
SOS from Army Service with effect from 1.6.1998 after
holding his Release Medical Board. The Release
Medical Board of the petitioner was held at Military
Hospital Jabalpur on 23.2.1998 and was approved by
DADH, HQ MB Area on 7.3.1998. Duly constituted
medical board assessed the disability of the petitioner at
20% for two years. The duly constituted Medical Board
also opined that the disability of the petitioner was not
attributable to but aggravated by military service and the
same was connected with service. Accordingly,
Records J & K RIF vide letter No.SR/13743810/26/DP
dated 31.7.1998 forwarded petitioner’s disability pension
claim to PCDA (P) Allahabad for adjudication. While
adjudicating the petitioner’s disability pension claim
medical Advisor (Pension) attached to PCDA (P)
Allahabad, who is competent authority to adjudicate the
initial disability pension claim of PBOR in terms of Govt.
of India, Ministry of Defence letter No.1(1)/81/D (Pen-C)
dated 21.6.1996 opined that the petitioner’s disability ID
‘PRIMARY HYPERTENSION’ is constitutional in nature
and not related to military service. Accordingly PCDA
(P) Allahabad vide letter No/G-3/95/154/8/98 dated
24.11.1998 rejected petitioner’s disability pension claim.
The petitioner was informed about the decision of PCDA
(P) Allahabad vide Records J & K RIF letter
No.SR/13743810/29/DP dated 5.12.1998 with an advice
that he may prefer an appeal to the Government of
Civil Writ Petition No. 91 of 2007 5India, Ministry of Defence against the decision of PCDA
(P) Allahabad through Records J & K RIF, but not later
than six months from the date of rejection of his
disability pension i.e. with effect from 24.11.1998.
Hence, the contention of learned counsel for petitioner
that the petitioner was not given the letter of rejection as
passed by the pension sanctioning authority is baseless
and incorrect. It is further submitted that as per para
173 of Pension Regulations for the Army 1961 (Part 1)
disability pension is conditional grant which is granted
only to those individuals who are discharged from
service on account of disability which is attributable to or
aggravated by military service and is assessed at 20%
or more. In this instant case the Medical Advisor
(Pension) attached to PCDA (P) Allahabad, who is
competent authority to adjudicate the initial disability
pension claim of PBOR in terms of Govt. of India,
Ministry of Defence letter No.1(1)/81/D (Pen-C) dated
21.6.1996 while adjudicating petitioner’s claim opined
that the disability ID ‘PRIMARY HYPERTENSION’ is
constitutional in nature and not related to military
service. Hence, he is not entitled to disability pension
as per rules governed on the subject. The copies of the
letters dated 21.6.96, 24.11.1998 & 5.12.1998 are
attached as ANNEXURE R/1 to R/3.”No other contention has been raised by either of the counsel.
I have considered the issue.
In Ex-Recruit Jagjit Singh’s case (supra), this Court has held
in the following terms:-
“Having heard the learned counsel for the parties
at a considerable length and after perusing the
documents placed on record, I am of the view that the
Civil Writ Petition No. 91 of 2007 6short issue involved in both the petitioner (SIC) is that
whether the CCDA or PCDA could sit in judgment over
the opinion of the experts in medical line. It is admitted
position that the disability of the petitioner in both
petitions was certified to be 20% by the Re-Survey
Medical Board. However, the PCDA has rejected the
disability pension by assessing the invalid disability at
less than 20%. The aforesaid mentioned issue is
squarely covered by the judgment of the Hon’ble
Supreme Court in the case of Ex. Spper Mohinder
Singh v. Union of India (Civil Appeal No.164 of 1993
decided on 14.1.1993, wherein it has been held as
under:-“From the above narrated fact and the stand taken
by the parties before us, the controversy that falls
for determination by us is in a very narrow
compass viz. Whether the Chief Controller of
Defence Accounts (Pension) has any jurisdiction
to sit over the opinion of the experts (Medical
Board) while dealing with the case of grant of
disability pension, in regard to the percentage of
the disability pension, or not. In the present case,
it is nowhere stated that the petitioner was
subjected to any higher Medical Board before the
Chief Controller of Defence Accounts (Pensions)
decided to decline the disability pension to the
petitioner. We are unable to see as to how the
accounts branch dealing with the pension can sit
over the judgment of the experts in the medical
line without making any reference to a detailed or
higher medical Board which can be constituted
under the relevant instructions and rules by the
Director General of Army Medical Core.”
The aforementioned view has been followed by
Civil Writ Petition No. 91 of 2007 7Division Benches of this Court in the case of Satpal
Singh Vs. Union of India and others (CWP No.15445 of
2003, decided on 26.09.2005); Ex-Sapper Ujaggar
Singh Vs. Union of India and others (CWP No.17688 of
1996, decided on 9.10.1997) and in a recent judgment
in the case of Ex-Subedar Jasmail Singh Vs Union of
India and others 2006(2) Law Herald 1480.
I, respectfully follow the view taken by the Hon’ble
Supreme Court as well as this Court and hold that the
CCDA/PCDA cannot sit in judgment over the opinion
expressed by Re-Survey Medical Board. Accordingly,
applying the principle laid down by the aforementioned
judgments, these petitions deserve to be allowed.
During the course of arguments, learned counsel
for the respondents have raised the issue of delay in
filing petitions after a long gap of 40 years. This
argument is not tenable in as much as. It is a settled
position of law that the right to receive pension of any
kind is a recurring cause of action and it accrues every
month. In this regard, the judgments relied upon by the
learned counsel for the petitioner, as detailed in the
earlier part of the judgment are fully applicable in the
instant petitions.
In view of the above, both the writ petitions are
allowed. A direction is issued to the respondents to
assess the disability pension of the petitioner in each
case by keeping in view that they had suffered 20%
disability for life, which is referable to service, with effect
from the dates of their disability pension has been
discontinued. It shall include both disability element and
service element of pension. However, the arrears are
confined to 38 months preceding the date of filing of
petitions, which are 24.01.2002 (CWP No.1687 of 2002)
and 29.01.2002 (CWP No.1906 of 2002). The arrears
Civil Writ Petition No. 91 of 2007 8shall be paid within a period of two months from today.
The petitioners in both cases shall continue to get the
disability pension for life.”
The judgment of the Hon’ble Supreme Court of India in Ex
Sapper Mohinder Singh (supra), has been followed in Ex-Recruit Jagjit
Singh’s case (supra). Likewise, this Court in Ex-Subedar Jasmail Singh’s
case (supra) has followed the dictum laid down in Ex Sapper Mohinder
Singh (supra).
Having considered the stand of the respondents, it follows
that the Release Medical Board of the petitioner was held at Military
Hospital, Jabalpur on 23.2.1998. The Medical Board assessed the
disability of the petitioner at 20% for two years and further opined that the
disability was aggravated by military service and was connected with his
service. When the matter was forwarded to the PCDA(P) for adjudication,
the Disability Pension Claim Medical Advisor (Pension) attached to that
authority opined that the petitioner’s disability i.e. “Primary Hypertension”
was constitutional in nature and not related to military service and,
therefore, rejected the claim of the petitioner for disability pension.
The documents appended with the written statement do not
indicate that the petitioner, in fact, was medically examined by any higher
medical authority. Thus, the decision taken by the PCDA(P) is rendered
de hors the facts. Although, a decision has been taken by the PCDA(P) to
the detriment of the rights of the petitioner, no reasons have been
assigned. Reasons were required to be given by the PCDA(P),
particularly because there was no complaint of any disability since the
petitioner joined the Army in the year 1979 till 1998 i.e. for 19 years. The
Civil Writ Petition No. 91 of 2007 9
PCDA(P) has declared the disease to be constitutional, however, without
placing any material before this court in evidence of the fact that has been
made the basis to deny the claim of the petitioner. A specific note with
supporting material was required to be given that the disease could not
have been detected at the time of induction of the petitioner in Army. No
material has been placed before this Court to show that any such note was
given and nor any material has been brought forth to justify the action of
the PCDA(P).
Merely saying that the matter had been adjudicated by an
authority having competent jurisdiction would not serve the purpose in
law. So as to assess that the disease was constitutional [as held by the
PCDA(P)] and not aggravated by military service (as opined by the
Release Medical Board on physical examination of the petitioner), reasons
had to be assigned and that too after examination of the petitioner by some
higher medical board. The PCDA(P) had no legal authority, in facts or in
law, to sit over the judgment of the experts in the medical line, without
making any reference to a detailed or higher medical board. In this view
of the matter, the case is squarely covered by the judgment rendered by
the Hon’ble Supreme Court of India and as followed by a Division Bench
of this Court, as noticed above.
The writ petition is, accordingly, allowed. The petitioner
would be allowed disability pension at the rate of 20% from the date of his
discharge.
February 25, 2009 ( AJAI LAMBA ) Kang JUDGE