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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
O R D E R
LRs. of Babu Ram v. Union of India & Ors.
S.B.CIVIL WRIT PETITION NO.4065/1998
under Article 226 of the Constitution
of India.
Date of Order : 13th March, 2009
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
Mr. R.K.Soni, for the petitioners.
Mr. M.S.Godara, for the respondents.
....
BY THE COURT :
After death of original petitioner Shri Babu
Ram, this petition for writ is prosecuted by his legal
heirs. The chronology of the facts necessary to be
noticed is as follows:-
1. The petitioner was enrolled with Indian Army on
28.7.1982;
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2. At the time of enrollment he was found
medically fit, thus, was placed in “AYE”
category;
3. His vision at the time of recruitment was of
6/6;
4. During field duties, he suffered with Optic
Atrophy and Astrocytoma, thus, he was subjected
to surgical operation of head which further
deteriorated his condition;
5. After serving for 11 years, 5 months and 27
days the petitioner was invalided out from
military service on 24.1.1994 by placing him
“EEE” medical category with 100% disability
element;
6. The Chief Controller of Defence Account
(Pension), (hereinafter referred to as “CCDA
(P)”, Allahabad held the petitioner not
entitled for disability pension by treating
invaliding disability neither attributable nor
aggravated by military service; and
7. The appeal preferred by the petitioner against
the decision aforesaid also came to be rejected
in the month of February, 1996.
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In the factual background, as stated above,
this petition for writ was filed on 16.11.1998 with a
prayer to direct the respondents to grant the
petitioner disability pension including disability
element and all other benefits of his disability and
also to carry out a resurvey medical board. Further a
direction is sought to provide proper treatment/
assistance to the petitioner.
The petitioner during pendency of this
petition for writ died on 18.3.2002, thus, by an order
dated 24.7.2003 the legal representatives of the
petitioner, those are his widow and seven daughters,
were substituted as petitioners to pursue present
petition for writ.
In the petition for writ, the main contention
taken on behalf of the petitioner is that the CCDA(P),
Allahabad was having no authority to declare the
petitioner disentitled for disability pension by
taking the invaliding disability neither attributable
nor aggravated by military service. Such a finding
could have been given only by a competent medical
board.
In reply to the writ petition the respondents
came forward with a case that as a matter of fact the
decision of the CCDA(P) was founded on the
recommendation made by a competent medical board.
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Alongwith reply to the writ petition the respondents
have also placed on record a copy of the medical board
proceedings. As per the documents placed on record, at
the first instance Colonel D.K.Sen, Senior Adviser
(Opthalmology), CH (SC) Pune, opined on 13.8.1993 as
follows:-
“An old case of Rt Parietal high grade III
Astrocytoma (Optd) with hamiparesis left and
“Bilateral optic Atrophy Rt Left”. His ocular
condition has further deteriorated and his
vision in Rt eye is finger is finger counting
at 3′ feet only. Left eye central vision is
6/12 but he has got gross constriction of
visual field all round. His vision is left
eye in likely to deteriorate further. He is
not considered fit to continue in service.
Recommended to be invalided out of service in
Med Cat EEE.”
An another opinion was given by Major
P.K.Thakur, Graded Specialist Radiotherapy on
19.8.1993 as follows:-
“This 30 Yrs old serving Sep as MT DVr, is a
case of Rt Purintal Astroctoma gr.III-4 who
presented first in Mar 88 with frontal
headache, bluned vision, SMS 7th n palay and
gr IV Weakness Lt half of body. A CECT done
on 02 Nov 88 revealed a large Rt pariotal SOL
with case effect. Craniotery and debulking
was does on 08.11.88 which confirmed
distopath diagnosis of high grade asfrocytoma
5B/3060-68/88 and MDTC B/1269-1274/88. Post Op
oranial Rt to a dese of 5800 rade/88
fractiona delivered concluding 20.1.89.
Adjuvaat chemethoropy (consisting of VDR + CC
NU + precarbasing) given at 6 weekly
intarvvol Total aourses given Six, ending Jan
90. He has been observed for 12 so in cat CEE
(T), 6 mo in cat CEE(T) and for 2 years in
cat BEE (P).
Presently his general condition is fair.
Systemic exam of chest CVS P/A is normal. CNS
exam reveals normal HMF. Bilateral
papillcodoma. VA (a) FC 3, (L) 6/12 with
severe restiction of visual fields gr IV Lt
hoviporesis pereisty. Pt is ambulant, and
isoluntary covenants are present. Routine
hamogref, urinanalysis, liver function tests
are normal. CMR is NAD. No other
investigation are indicated with the
persisting Lt homiparesis blindness of Rt eye
and with secorely restricted fiels of the
other eye (which has progressed), after being
observed for 5 years it is Surmiseel, that
these disabilities wile presint if not weresn
further. E. cannot serve as a useful soldier.
In view of the above and conousent with the
opiaiod of dviser opthalmology as obtnined on
13.3.93, it is opined that the patient be
invalided out of service incat EEE.”
The medical board opined that disability as a
consequent to which the petitioner was invalided out
was not attributable to service during peace or under
field service conditions it had not been aggravated
during the military service and that was also not
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connected with service. The relevant portion of the
opinion of the medical board reads as follows:-
“(a)In respect of each disability the Medical
Board on the evidence before it will express
it views as to whether,
(i)It is attributable to service during peace
or under field service conditions; or
(ii)It has been aggravated thereby and remain
so; or
(iii)It is not connected with service.
The Board should state fully the reason in
regard to each disability on which its
opinion is based.
Disability A B C ATIEA - CCPITY 1 & 2 1 & 2 1 & 2 BE - - - ASTROCYTOMA NO NO Yes CADE III IV
In respect of each disability shown as
attributable under A, the Board should state
fully, the specific condition and period in
service which caused the disability.
1 & 2 – N.A.
…..
…..
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Disability Percentage Probable Composite
(as numbered of duration of assessment
in question disablement the degree (all
I, part II) of disabilities)
disablement
Optic 80.00% Two years 100.00%
Atrophy (Eighty (One hundred
percent) percent)
GRADE III IV 80.00%
(Eighty
percent)
377 IUI
(Emphasis given by me.)
In rejoinder to the reply the petitioner has
contested the mode of opinion given by the medical
board. It is contended that the opinion given by the
medical board is absolutely laconic as no reason in
regard to each disability is given to support the
findings. As per counsel for the petitioner the board
was under obligation to state fully the reasons in
regard to each disability on which its opinion was
based. Counsel for the petitioner has pointed out the
requirement aforesaid as referred in part III of the
model form relating to “medical board proceedings
invaliding all ranks”. According to counsel for the
petitioner this Court in Laxman Ram v. Union of India
& Ors., SBCivil Writ Petition No.834/2006, decided on
12.12.2008, while considering the same issue, held
that the medical board while reaching at a conclusion
that disability occurred to a defence personnel was
neither attributable nor aggravated because of
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military service is required to assign reasons to
support such conclusion and if such conclusion is
without any basis, then that is not required to be
treated conclusive.
On the other hand, it is stated by counsel
for the respondents that the opinion of the medical
board is not open to challenge as it is a conclusion
arrived by experts on adequate examination of the
complete medical record of a defence personnel i.e.
the petitioner in present case.
Heard counsel for the parties.
From perusal of the report of the medical
board, relevant portion of which is quoted in
preceding paras, it is apparent that Colonel D.K.Sen,
Senior Adviser (Opthalmology) opined regarding disease
of the petitioner but he nowhere stated that such
disease was constitutional in nature or that was
neither attributable to military service nor
aggravated during military service. It is also
pertinent to note that Colonel D.K.Sen, while
submitting his opinion, specifically averred that the
condition of the petitioner further deteriorated after
surgical operation. Similarly, Major P.K.Thakur
prescribed necessary details regarding ailment and
disability of the petitioner but he too nowhere stated
regarding origin of disease.
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The medical board framed its opinion on basis
of the comments given by Colonel D.K.Sen and Major
P.K.Thakur. While forming its opinion the medical
board has not assigned even a single reason to reach
at a conclusion that disability of the petitioner was
neither attributable nor aggravated because of
military service. The medical board gave its opinion
in most cryptic manner by mentioning “No” or “Yes”.
Medical board is a body of experts and experts are
specialist in their subjects with a developed faculty
of judging and deciding the issues relating to their
subjects. They are required to judge the issues
rightly, justly, wisely and with authority. The
opinion given by the experts is supposed to be based
on special knowledge of a subject beyond that of an
average person. Normal individuals and bodies rely on
their opinions and also act as per guidelines
prescribed by them, therefore, a body of experts bear
heavy responsibility for giving definite opinion with
cogent reasons. Such an opinion must be capable to
express its qualified, technical, skilled and
analytical background. It cannot be and should not be
in casual and unqualified manner. If opinion of an
expert is not based on cogent reasons or that contains
ambiguity, then that is nothing but a conclusion of a
lay man. An opinion of expert must disclose sound
application of mind to establish its objectivity and
alliance with the subject.
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In the present case, no such expertees or
thorough consideration reflects with the medical
opinion. It was all the more necessary in light of the
requirement under the model form for prescribing
medical opinion by stating fully the reasons in regard
to each disability on which the opinion was based.
Despite such obligation, the Board has not stated any
reason to support its finding.
In view of whatever said above and in light
of the judgment of this Court in the case of Laxman
Ram (supra), opinion given by the medical board is not
at all conclusive.
The petitioner served Indian Army for a
period of about 12 years and at the time of his
recruitment he was found absolutely fit with “AYE”
medical category. While in active field service he
suffered with three disabilities, consequently he was
declared 100% disabled. A specific opinion was also
given by Colonel D.K.Sen that the condition of the
petitioner deteriorated after surgery. There is
nothing available on record to reach at the conclusion
that the disease of the petitioner was constitutional
by nature. Now, unfortunately the petitioner is no
more, thus, no further medical examination is
possible. In such circumstances, I consider it proper
to presume that disability suffered by the petitioner
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was attributable as well as aggravated due to military
service.
Consequently, this petition for writ deserves
acceptance. Accordingly, the same is allowed. The
denial of the disability element to the petitioner by
the CCDA(P), Allahabad is declared illegal and,
therefore, the same is quashed. The respondents are
directed to allow disability pension to the petitioner
from the date he was invalided . Petitioner Babu Ram
has already died, therefore, whatever right accrues as
a consequent to the directions above, be given to his
legal representatives.
No order to costs.
( GOVIND MATHUR ),J.
kkm/ps.