JUDGMENT
Swatanter Kumar, J.
1. The petitioner was enrolled in Regular Army as Combatant Soldier on 7th January, 1976 and was allotted Army No. 14526399. According to the petitioner he had been examined by the Recruiting Medical Officer and was also subsequently put to different regular medical check ups. He went through strict military training and was also posted at different places where he even worked in stressful conditions of service. In the year 1981, the petitioner started having health problems and was brought before the Medical Board on 10th October, 1981. The Medical Board recommended that the petitioner be invalided out of service in low medical category EEE with 20% disability pension. The Commanding Officer of the Unit informed the petitioner that he could not offer any alternate/sheltered appointment to the petitioner and on 1st November, 1981, he sanctioned discharge of the petitioner from service with disability element of 20%. The disability pension claim duly sanctioned was submitted to PCDA(P) for allotment of PPO number and release of disability pension in favor of the petitioner. However, the claim of the petitioner was rejected by CDA(P) Allahabad and this was communicated to the petitioner vide letter dated 19th April, 1982. From 1986, the petitioner has been corresponding with the respondents but of no avail. Earlier the petitioner had filed a writ petition bearing No. 6722/2001, which was disposed of by the Court in terms of judgment of the Court in the case of Ct. Jasbir Singh v. UOI and Ors. on 6th March, 2003. Again vide letter dated 8th March, 2004, the request of the petitioner was finally declined by the respondents. This compelled the petitioner to file second writ petition before this Court.
2. According to the respondents, the Invaliding Medical Board had considered the disability of the petitioner as “EPILEPSY (IDTOEATHIC) 345 (V-67)” and the same was neither attributable to nor aggravated by military service and as such, the Medical Board denied the benefit to the petitioner. In the counter affidavit filed by the respondents, the facts are not disputed. It is admitted that petitioner was invalided out of service on 31st October, 1981 with 20% disability for 2 years and the petitioner was granted terminal benefits. The case of the petitioner was referred to PCDA(P) on 2nd December, 1981 for adjudication, which was rejected on the advice of the Medical Advisor (Pension) being not attributable to army service. Further it is averred that after the order of the Court dated 6th March, 2005, speaking order has been passed, which is not arbitrary and petitioner is not entitled to the prayed reliefs.
3. The proceedings of the Invaliding Medical Board has been produced in Court by the respondents. It has been stated by the Medical Board that it is a constitutional disorder and not related to service. The petitioner is stated to be suffering from “EPILEPSY (IDTOEATHIC) 345 (V-67)”. The disability is determined by the Board as 20% for a period of 2 years. It may be noticed at this stage that along with Medical Board Proceeding, the petitioner was subjected to examination by Classified Specialist (Medicine), who observed that even when the petitioner fell ill earlier, he was examined by the doctors. It was recorded that “This individual description of seizure is not fully conformity of epilepsy. There is no clinical basis in the description of the seizure unconsciousness has not been established with inpaucity is neurological examination has not revealed any local sign. Systematic examination reveals no symptomatic cause for epilepsy – NAD. ECG within normal limits, X-Ray Skull NAD. Metabolic parameters are within normal limits. This individual be observed in medical category CEE…”. After subsequent attacks, the petitioner was considered to be unfit for further service as he was unlikely to be a fit soldier.
4. Learned Counsel appearing for the petitioner heavily relied upon Clause 33 of the `Guide to Medical Offices (Military Pensions) 2002, which reads as under:
33. Epilepsy
This is a disease which may develop at any age without obvious discoverable cause. The persons who develop epilepsy while serving in forces are commonly adolescents with or without ascertainable family history of disease. The onset of epilepsy does not exclude constitutional idiopathic type of epilepsy but possibility of organic lesion of the brain associated with cerebral trauma, infections (meningitis, cysticercus, encephalitis, TB) cerebral anoxia in relation to service in HAA, cerebral infarction and hemorrage, and certain metabolic (diabetes) and demyelinating disease should be kept in mind.
The factors which may trigger the seizures are sleep deprivation, emotional stress, physical and mental exhaustion, infection and pyrexia and loud noise.
Acceptance is on the basis of attributability if the cause is infection, service related trauma.
Epilepsy can develop after time lag/latent period of 7 years from the exposure to offending agent (Trauma, Infection, TB). This factor should be borne in mind before rejecting epilepsy cases.
Where evidence exists that a person while on active service such as participation in battles, warlike front line operation, bombing, siege, jungle war-fare training or intensive military training with troops, service in HAA, strenuous operational duties in aid of civil power, LRP on mountains, high altitude flying, prolonged afloat service and deep sea diving, service in sub-marine, entitlement of attributability will be appropriate if the attack takes place within 6 months. Where the genetic factor is predominant and attach occurs after 6 months, possibility of aggravation may be considered.
5. Counsel for the petitioner also relied upon Regulation 423 of the `Guide to Medical Officers (Military Pension), issued by DGAFMS, Govt. of India, which reads as under:
423 Attributability to service
(a) For the purpose of determining whether the cause of a disability or death is or is not attributable to service, it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a field service/active service area or under normal peace conditions. It is, however, essential to establish whether the disability or death bore a casual connection with the service conditions. All evidence both direct and circumstantial, will be taken into account and benefit of reasonable doubt, if any, will be given to the individual. The evidence to be accepted as reasonable doubt, for the purpose of these instructions, should be of a degree of cogency, which through not reaching certainty, nevertheless carries a high degree of probability. In this connection, it will be remembered that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. If the evidence is so strong against an individual as to leave only a remote possibility in his favor, which can be dismissed with the sentence “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt. If on the other hand, the evidence be so evenly balanced as to render impracticable a determinate conclusion one way or the other, then the case would be one in which the benefit of the doubt could be given more liberally to the individual, in cases occurring in field service/active service areas.
(b) The cause of a disability or death resulting from a wound or injury will be regarded as attributable to service if the wound/injury was sustained during the actual performance of “duty” in armed forces. In case of injuries, which were self inflicted or due to an individual’s own serious negligence or misconduct, the board will also comment how far the disablement resulted from self-infliction, negligence or misconduct.
(c) The cause of a disability or death resulting from a disease will be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the armed forces determined and contributed to the onset of the disease. Cases, in which it is established that service conditions did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will be regarded as aggravated by the service. A disease which has led to an individual’s discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of the individual’s acceptance for service in the armed forces. However, if medical opinion holds, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have risen during service.
(d) The question, whether a disability or death is attributable to or aggravated by service or not, will be decided as regards its medical aspects by a medical board or by the medical officer who signs the death certificate. The medical board/medical officer will specify reasons for their/his opinion. The opinion of the medical board/medical officer in so far as it relates to the actual cause of the disability or death and the circumstances in which it originated will be regarded as final. The question whether the cause and the attendant circumstances can be attributed to service will, however, be decided by the pension sanctioning authority.
(e) To assist the medical officer who signs the death certificate or the medical board in the case of an invalid, the C.O. unit will furnish a report on:
(i)AFMS F-81 in all cases other than those due to injuries.
(ii)IAFY-2006 in all cases of injuries other than battle injuries.
(f) In cases where award of disability pension or reassessment of disabilities is concerned, a medical board is always necessary and the certificate of a single medical officer will not be accepted except in case of stations where it is not possible or feasible to assemble a regular medical board for such purposes. The certificate of a single medical officer in the latter case will be furnished on a medical board form and countersigned by the ADMS (Army)/DMS (Navy)/DMS(Air).
6. The disease of epilepsy coming after years of service would normally be attributable to military service and in any case it would be aggravated by military service. Various causes have been stated in these provisions, which make it obligatory upon the authorities to consider whether the petitioner was posted to such places, which may result in onset of such disease. It is also to be recorded whether the cause is not discoverable and the person did not develop epilepsy while in service. The medical board has no where stated that epilepsy of the petitioner is not related to infection, service trauma or other conditions stated for aggravation of the disease under these rules. These rules require liberal construction to extend the benefit to as many persons of the army as the law permits rather than denial of the same. The opinion of the medical expert is that Neurological examination had not revealed any local sign of such disease. All his symptomatic examinations or other diagnosis were found to be within normal limits.
7. When the rules contemplate that various factors have to be considered by the medical board before they can form an opinion in relation to attributability or aggravation of disease by military service then they essentially must follow the prescribed procedure and give reasons in terms thereof. It is difficult to reconcile the observations of the Classified Specialist and one vague line written by the medical board. It is expected of such authorities to work in line with spirit of law and perform their duties in comity with the discipline of the force. The Court cannot lose sight of the fact that they have been vested with powers, in exercise of which, they can deny or grant benefit of disability pension to a person, who has admittedly served the army and developed the problem during the course of service.
8. For the reasons aforestated, we quash the order dated 8th March, 2004 while partially allowing this writ petition. We direct the respondents to subject the petitioner to appellate medical board within 3 months from the date of pronouncement of this judgment and thereafter pass an order in accordance with law. We do express a pious hope that the appellate medical board will act in terms of prescribed procedure and rules and make a reason based opinion.
9. The writ petition is accordingly disposed of, while leaving the parties to bear their own costs.