JUDGMENT
R.L. Anand, J.
1. Ex-Junior Warrant officer Sutan-tar Singh has filed the present writ petition against the respondents under Articles 226/227 of the Constitution of India and has prayed that a writ in the nature of mandamus directing the respondents to grant him disability pension @ 100% w.e.f. 8.3.1992 to 6.3.1997 be issued. It may be mentioned here that on the basis of the report of the Re-Survey Medical Board the petitioner is already getting the benefit of disability pension by assessing his disability to be 50% w.e.f. 7.3.1997.
2. Some facts can be noticed in the following manner :-
The petitioner was enrolled in the AIR Force on 21.1.1964. He was invalidated from the Air Force on 8.3.1992 on medical grounds. He submits that his disability was assessed at 100% by the Invalidating Medical Board and, therefore, he is entitled to the benefit of disability pension at 100% from 8.3.1992 to 6.3.1997 though the respondent-authorities are paying him this benefit by assessing his disability at 50%. It may also be clarified here that the petitioner was even getting the benefit of disability pension at 50% prior to 8.3.1992 and subsequent to 6.3.1997. In the present writ petition the dispute is only whether the petitioner is entitled to the disability pension for 50% disability or 100% disability for a limited period starting from 8.3.1992 to 6.3.1997, The case sought to be made out by the petitioner is that since this disability was assessed at 100% composite and this disability is attributable to the Air Force service, therefore, he is entitled to the benefit of 100% instead of 50% disability for the disputed period as referred above.
3. Notice of the writ petition was given to the respondents. According to the respondents, the petitioner has been rightly paid the disability pension @ 50% and there is no further scope of enhancement.
4. I have heard the learned counsel for the parties and with their assistance have gone through the records of the case.
5. During the course of submissions the learned counsel for the respondents has placed before me the findings of the Medical Re-survey Board which examined the petitioner on 7.3.1992. A reading of the same would show that the petitioner suffered from the following diseases :-
1) Pulmonary Tuberculosis (011)
2) Interstitial Pulmonary Fibrosis (519)
6. The Board gave the opinion that so far disease No. 1 is concerned, it is aggravated to Air Force service and so far disease No. 2 is concerned it is auto-immune disorder having no connection with the service. In column No. 4 of the Medical-chart the Board has assessed 50% disability with regard to first disease and 100% with regard to second disease. The disability has been assessed for one year. Against the composite assessment with respect to the diseases the Board gave its opinion as 100%. Here the controversy starts. Both the parties have given their own interpretation to the opinion of the Board. As per the respondents the disease No. 2 i.e. Industrial Pulmonary Fibrosis (519) is not attributable to Air Force service and thus the petitioner is only entitled to the benefit of 50% disability on account of first disease i.e. Pulmonary Tuberculosis (011) and that too for a period of one year. On the contrary, the petitioner has given a different interpretation. The stand of the learned counsel for the petitioner is that the petitioner was boarded out from the service on account of two diseases mentioned above and the Board assessed 100% disability, therefore, the petitioner is entitled to the benefit of disability pension by
assessing his disability at 100% for the disputed period i.e. 8.3.1992 to 6.3.1997.
7. Let us see what is the rule or regulation in this regard. 100% disability which has been recorded by the Medical Board, in my opinion, has been recorded on the basis of Rule 22 of the Entitlement Rules for Casualty Pensionary Awards, 1982 which talks of the assessment. This rule lays down as Under :-
“…..Where disablement is due to more than one disability a composite assessment of the degree of disablement snail also be made by reference to the combined effect of all such disabilities in addition to separate assessment for each ability…..”
Thus it becomes mandatory for the Medical Board firstly to make a mention of each disability and then to make a mention of the composite effect of both the disabilities. The first disability has been assessed at 50% and the second disability has been assessed at 100%. The composite effect of both the disabilities is 100%. Meaning thereby that the disability suffered by the petitioner was 100% and not 50% as interpreted by the learned counsel for the respondent.
8. Now the point for determination is whether the disability assessed as 100% is attributable to the Air Force service or not. The second disease i.e. Interstitial Pulmonary Fibrosis is totally independent from disease No. 1 i.e. Pulmonary Tuberculosis. It appears that on account of first disease the petitioner also suffered the second disease and the parent disease of Pulmonary Tuberculosis also started effecting the intestine of the body of the petitioner. In these circumstances, it cannot be held that” the second disease is a part of disease No. 1. Rather, it is an independent disease and therefore, the petitioner was entitled to the benefit of disability pension at 100%. Since the parent disease is Tuberculosis and it is attributable to the Air Force service, therefore, I am of the considered opinion that the petitioner is entitled to the benefit of disability pension at 100% and not 50% for the disputed period starting from 8.3.1992 to 6.3.1997.
9. The learned counsel for the respondents relies upon a judgment dated 22.3.2000 passed by Kerala High Court and argued that the High Court cannot sit over the opinion of the Medical Board. Since the Medical Board has stated that disease No. 2 is not attributable to the Air Force service, therefore, the petitioner is not entitled to the benefit of 100% disability. I do not subscribe to the argument raised by the learned counsel for the respondent. The opinion of the Medical Board is only persuasive in nature and cannot go against the statute itself. I have already tried to show that 100% disability was assessed by the Board and it was held to be composite itself. The second disease is not the part of the first disease, rather it is the disease independent in nature and this disease is attributable to the Air Force, service. The opinion evidence of the Medical Board cannot bind the opinion of the High Court which has the right to assess independently whether the opinion of the Board is based on proper
appreciation of facts and circumstances of the case.
10. I also do not accept the contention of the learned counsel for the respondents that there is a delay in filing the present writ petition. The records shows that the present writ was filed in the year 1997 and the petitioner is making a prayer for the release of benefit of disability pension for the period from 8.3.1992 to 6.3.1997 at 100%, therefore, I hold that there is node-lay or laches on the part of the petitioner in-filing the present petition.
Resultantly, this writ petition is allowed and directions are given to the respondents to release the benefit of disability pension to the petitioner from 8.3.1992 to 6.3.1997 by assessing his disability at 100% and not 50% within three months from the receipt of the copy of the order. No order as to costs.
11. Writ petition allowed.