{"id":113655,"date":"2009-02-25T00:00:00","date_gmt":"2009-02-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/no-13733810-h-ex-hav-hira-singh-vs-union-of-india-ors-on-25-february-2009"},"modified":"2015-04-20T07:19:49","modified_gmt":"2015-04-20T01:49:49","slug":"no-13733810-h-ex-hav-hira-singh-vs-union-of-india-ors-on-25-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/no-13733810-h-ex-hav-hira-singh-vs-union-of-india-ors-on-25-february-2009","title":{"rendered":"No.13733810-H Ex-Hav. Hira Singh vs Union Of India & Ors on 25 February, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
No.13733810-H Ex-Hav. Hira Singh vs Union Of India & Ors on 25 February, 2009<\/div>\n
        IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n\n                            CHANDIGARH.\n\n\n\n\n                                        Civil Writ Petition No. 91 of 2007\n\n                            DATE OF DECISION : FEBRUARY 25, 2009\n\n\n\n\nNO.13733810-H EX-HAV. HIRA SINGH\n\n                                                    ....... PETITIONER(S)\n\n                                VERSUS\n\nUNION OF INDIA & ORS.\n\n                                                    .... RESPONDENT(S)\n\n\n\nCORAM : HON'BLE MR. JUSTICE AJAI LAMBA\n\n\n\nPRESENT: Mr. Rajesh Sehgal, Advocate, for the petitioner(s).\n         Ms. RB Sharma, Advocate, for respondents.\n\n\n\nAJAI LAMBA, J. (Oral)\n<\/pre>\n
            Ex-Havaldar Hira Singh has filed this petition under Articles<\/p>\n
226\/227 of the Constitution of India praying for issuance of a writ in the<\/p>\n
nature of certiorari for quashing order dated 5.12.1998 (Annexure P-1) and<\/p>\n
order dated 31.7.2004 (Annexure P-6). The effect of the impugned orders<\/p>\n
is that the disability element of pension claim of the petitioner has been<\/p>\n
rejected.\n<\/p>\n
            Undisputed facts are that the petitioner was enrolled in the
\n Civil Writ Petition No. 91 of 2007                              2<\/span><\/p>\n
Army on 14.11.1979. At the time of entry in Army, the petitioner did not<\/p>\n
suffer from any disability as no note was given to that effect by the<\/p>\n
medical board that examined the petitioner.\n<\/p>\n
              The petitioner was admitted in Military Hospital on<\/p>\n
14.1.1997, suffering from Primary Hypertension V-67. The petitioner was<\/p>\n
downgraded to Low Medical Category CEE (Temporary) on 3.3.1997. On<\/p>\n
review, the petitioner was placed on Low Medical Category BEE<\/p>\n
(Permanent) for two years with effect from 20.9.1997 to 11.9.1999. The<\/p>\n
petitioner was invalidated out on 31.5.1998.\n<\/p>\n
              In brief, the contention of the learned counsel for the<\/p>\n
petitioner is that the Medical Board examined the petitioner and gave a<\/p>\n
clear opinion that he had suffered disability on account of Hypertension,<\/p>\n
which was aggravated by military service. The matter was forwarded to<\/p>\n
Principal Controller of Defence Accounts (Pension), Allahabad (for short<\/p>\n
‘PCDA(P)’) who, however, declined the relief of disability pension to the<\/p>\n
petitioner.\n<\/p>\n
              It is the contention of the learned counsel for the petitioner<\/p>\n
that the PCDA(P) did not get the petitioner re-examined by any medical<\/p>\n
board so as to reassess\/review the case of the petitioner to come to a<\/p>\n
different conclusion. No reasons have been assigned and no material has<\/p>\n
been placed before this court to justify the action of PCDA(P). In this<\/p>\n
regard, learned counsel for the petitioner has relied on a judgment of the<\/p>\n
Hon’ble Supreme Court of India in Civil Appeal No.164 of 1993 (arising<\/p>\n
out of SLP(c) No.4233 of 1992) titled ‘Ex Sapper Mohinder Singh vs.<\/p>\n
Union of India’<\/a> decided on 14.1.1993, which has been followed by a
\n Civil Writ Petition No. 91 of 2007                               3<\/span><\/p>\n
Division Bench of this Court in Ex-Subedar Jasmail Singh Vs Union of<\/p>\n
India and others, 2006(2) Law Herald 1480.\n<\/p>\n
            Learned counsel for the petitioner has also relied on a<\/p>\n
judgment of this Court rendered in Civil Writ Petition No.1687 of 2002,<\/p>\n
decided on 31.5.2006 (Ex-Recruit Jagjit Singh vs. Union of India &<\/p>\n
Others).\n<\/p>\n
            Learned counsel for the respondents has not been able to<\/p>\n
dispute the facts, as stated above. It would be appropriate to reproduce<\/p>\n
the stand of the respondents which, in effect, states the case of the<\/p>\n
petitioner. In this regard, reply to paras 7 to 11 (on merits) of the written<\/p>\n
statement is extracted below:-\n<\/p>\n
            “7 to 11.    That in reply to para 7 to 11 it is submitted
\n            that during the course of service, the petitioner was
\n            admitted in 167 Military Hospital on 14.1.1997 where his
\n            disease ID ‘PRIMARY HYPERTENSION’ was detected.
\n            In this context refer details of petitioner’s hospitalization\/
\n            medical categorization given in brief of case.              The
\n            petitioner was downgraded to medical category CEE
\n            (Temporary) with effect from 3.3.1997 due to disease
\n            ‘PRIMARY HYPERTENSION’.                 On review he was
\n            placed in low medical category BEE (Permanent) for
\n            two years with effect from 20.9.1997 to 11.9.1999. As
\n            per Army order 46\/80 the employment of permanent low
\n            medical category personnel, at all times, is subject to
\n            the availability of suitable appointment commensurate
\n            with their medical category and also to the provision that
\n            this can be justified in the public interest and that their
\n            retention will not exceed the sanctioned strength of the
\n            Regiment\/ Corps.         When such an appointment is not
\n            available    or      when   their   retention   exceeds      the
\n Civil Writ Petition No. 91 of 2007                            4<\/span><\/p>\n
            sanctioned strength of the Regiment\/ Corps, they will be
\n            discharged irrespective of the service put in by them.
\n            Though, the petitioner was willing to continue in service,
\n            but shelter appointment commensurate with his medical
\n            category was not available with the unit. The petitioner
\n            was discharged from service under Army Rule 13(3)
\n            item (v) with effect from 31.5.1998 (AN) and was finally
\n            SOS from Army Service with effect from 1.6.1998 after
\n            holding his Release Medical Board.            The Release
\n            Medical Board of the petitioner was held at Military
\n            Hospital Jabalpur on 23.2.1998 and was approved by
\n            DADH, HQ MB Area on 7.3.1998.               Duly constituted
\n            medical board assessed the disability of the petitioner at
\n            20% for two years. The duly constituted Medical Board
\n            also opined that the disability of the petitioner was not
\n            attributable to but aggravated by military service and the
\n            same was connected with service.                Accordingly,
\n            Records J & K RIF vide letter No.SR\/13743810\/26\/DP
\n            dated 31.7.1998 forwarded petitioner’s disability pension
\n            claim to PCDA (P) Allahabad for adjudication. While
\n            adjudicating the petitioner’s disability pension claim
\n            medical Advisor (Pension) attached to PCDA (P)
\n            Allahabad, who is competent authority to adjudicate the
\n            initial disability pension claim of PBOR in terms of Govt.
\n            of India, Ministry of Defence letter No.1(1)\/81\/D (Pen-C)
\n            dated 21.6.1996 opined that the petitioner’s disability ID
\n            ‘PRIMARY HYPERTENSION’ is constitutional in nature
\n            and not related to military service. Accordingly PCDA
\n            (P) Allahabad vide letter No\/G-3\/95\/154\/8\/98 dated
\n            24.11.1998 rejected petitioner’s disability pension claim.
\n            The petitioner was informed about the decision of PCDA
\n            (P)   Allahabad    vide   Records   J   &    K RIF     letter
\n            No.SR\/13743810\/29\/DP dated 5.12.1998 with an advice
\n            that he may prefer an appeal to the Government of
\n Civil Writ Petition No. 91 of 2007                             5<\/span><\/p>\n
            India, Ministry of Defence against the decision of PCDA
\n            (P) Allahabad through Records J & K RIF, but not later
\n            than six months from the date of rejection of his
\n            disability pension i.e. with effect from 24.11.1998.
\n            Hence, the contention of learned counsel for petitioner
\n            that the petitioner was not given the letter of rejection as
\n            passed by the pension sanctioning authority is baseless
\n            and incorrect. It is further submitted that as per para
\n            173 of Pension Regulations for the Army 1961 (Part 1)
\n            disability pension is conditional grant which is granted
\n            only to those individuals who are discharged from
\n            service on account of disability which is attributable to or
\n            aggravated by military service and is assessed at 20%
\n            or more.       In this instant case the Medical Advisor
\n            (Pension) attached to PCDA (P) Allahabad, who is
\n            competent authority to adjudicate the initial disability
\n            pension claim of PBOR in terms of Govt. of India,
\n            Ministry of Defence letter No.1(1)\/81\/D (Pen-C) dated
\n            21.6.1996 while adjudicating petitioner’s claim opined
\n            that the disability ID ‘PRIMARY HYPERTENSION’ is
\n            constitutional in nature and not related to military
\n            service. Hence, he is not entitled to disability pension
\n            as per rules governed on the subject. The copies of the
\n            letters dated 21.6.96, 24.11.1998 & 5.12.1998 are
\n            attached as ANNEXURE R\/1 to R\/3.”<\/p>\n
            No other contention has been raised by either of the counsel.\n<\/p><\/blockquote>\n
            I have considered the issue.<\/p><\/blockquote>\n
            In Ex-Recruit Jagjit Singh’s case (supra), this Court has held<\/p>\n
in the following terms:-\n<\/p>\n
                   “Having heard the learned counsel for the parties
\n            at a considerable length and after perusing the
\n            documents placed on record, I am of the view that the
\n Civil Writ Petition No. 91 of 2007                          6<\/span><\/p>\n
            short issue involved in both the petitioner (SIC) is that
\n            whether the CCDA or PCDA could sit in judgment over
\n            the opinion of the experts in medical line. It is admitted
\n            position that the disability of the petitioner in both
\n            petitions was certified to be 20% by the Re-Survey
\n            Medical Board. However, the PCDA has rejected the
\n            disability pension by assessing the invalid disability at
\n            less than 20%. The aforesaid mentioned issue is
\n            squarely covered by the judgment of the Hon’ble
\n            Supreme Court in the case of Ex. Spper Mohinder
\n            Singh v. Union of India (Civil Appeal No.164 of<\/a> 1993
\n            decided on 14.1.1993, wherein it has been held as
\n            under:-\n<\/p><\/blockquote>\n
                  “From the above narrated fact and the stand taken
\n                  by the parties before us, the controversy that falls
\n                  for determination by us is in a very narrow
\n                  compass viz. Whether the Chief Controller of
\n                  Defence Accounts (Pension) has any jurisdiction
\n                  to sit over the opinion of the experts (Medical
\n                  Board) while dealing with the case of grant of
\n                  disability pension, in regard to the percentage of
\n                  the disability pension, or not. In the present case,
\n                  it is nowhere stated that the petitioner was
\n                  subjected to any higher Medical Board before the
\n                  Chief Controller of Defence Accounts (Pensions)
\n                  decided to decline the disability pension to the
\n                  petitioner. We are unable to see as to how the
\n                  accounts branch dealing with the pension can sit
\n                  over the judgment of the experts in the medical
\n                  line without making any reference to a detailed or
\n                  higher medical Board which can be constituted
\n                  under the relevant instructions and rules by the
\n                  Director General of Army Medical Core.”<\/p><\/blockquote>\n<\/blockquote>\n
                  The aforementioned view has been followed by
\n Civil Writ Petition No. 91 of 2007                             7<\/span><\/p>\n
            Division Benches of this Court in the case of Satpal
\n            Singh Vs. Union of India and others (CWP No.15445 of
\n            2003, decided on 26.09.2005); Ex-Sapper Ujaggar
\n            Singh Vs. Union of India and others (CWP No.17688 of
\n            1996, decided on 9.10.1997) and in a recent judgment
\n            in the case of Ex-Subedar Jasmail Singh Vs Union of
\n            India and others 2006(2) Law Herald 1480.\n<\/p><\/blockquote>\n
                  I, respectfully follow the view taken by the Hon’ble
\n            Supreme Court as well as this Court and hold that the
\n            CCDA\/PCDA cannot sit in judgment over the opinion
\n            expressed by Re-Survey Medical Board. Accordingly,
\n            applying the principle laid down by the aforementioned
\n            judgments, these petitions deserve to be allowed.\n<\/p><\/blockquote>\n
                  During the course of arguments, learned counsel
\n            for the respondents have raised the issue of delay in
\n            filing petitions after a long gap of 40 years. This
\n            argument is not tenable in as much as. It is a settled
\n            position of law that the right to receive pension of any
\n            kind is a recurring cause of action and it accrues every
\n            month. In this regard, the judgments relied upon by the
\n            learned counsel for the petitioner, as detailed in the
\n            earlier part of the judgment are fully applicable in the
\n            instant petitions.\n<\/p><\/blockquote>\n
                  In view of the above, both the writ petitions are
\n            allowed. A direction is issued to the respondents to
\n            assess the disability pension of the petitioner in each
\n            case by keeping in view that they had suffered 20%
\n            disability for life, which is referable to service, with effect
\n            from the dates of their disability pension has been
\n            discontinued. It shall include both disability element and
\n            service element of pension. However, the arrears are
\n            confined to 38 months preceding the date of filing of
\n            petitions, which are 24.01.2002 (CWP No.1687 of 2002)
\n            and 29.01.2002 (CWP No.1906 of 2002). The arrears
\n Civil Writ Petition No. 91 of 2007                                 8<\/span><\/p>\n
             shall be paid within a period of two months from today.
\n             The petitioners in both cases shall continue to get the
\n             disability pension for life.”<\/p><\/blockquote>\n
             The judgment of the Hon’ble Supreme Court of India in Ex<\/p>\n
Sapper Mohinder Singh (supra), has been followed in Ex-Recruit Jagjit<\/p>\n
Singh’s case (supra). Likewise, this Court in Ex-Subedar Jasmail Singh’s<\/p>\n
case (supra) has followed the dictum laid down in Ex Sapper Mohinder<\/p>\n
Singh (supra).\n<\/p>\n
             Having considered the stand of the respondents, it follows<\/p>\n
that the Release Medical Board of the petitioner was held at Military<\/p>\n
Hospital, Jabalpur on 23.2.1998. The Medical Board assessed the<\/p>\n
disability of the petitioner at 20% for two years and further opined that the<\/p>\n
disability was aggravated by military service and was connected with his<\/p>\n
service. When the matter was forwarded to the PCDA(P) for adjudication,<\/p>\n
the Disability Pension Claim Medical Advisor (Pension) attached to that<\/p>\n
authority opined that the petitioner’s disability i.e. “Primary Hypertension”<\/p>\n
was constitutional in nature and not related to military service and,<\/p>\n
therefore, rejected the claim of the petitioner for disability pension.<\/p>\n
             The documents appended with the written statement do not<\/p>\n
indicate that the petitioner, in fact, was medically examined by any higher<\/p>\n
medical authority. Thus, the decision taken by the PCDA(P) is rendered<\/p>\n
de hors the facts. Although, a decision has been taken by the PCDA(P) to<\/p>\n
the detriment of the rights of the petitioner, no reasons have been<\/p>\n
assigned.    Reasons were required to be given by the PCDA(P),<\/p>\n
particularly because there was no complaint of any disability since the<\/p>\n
petitioner joined the Army in the year 1979 till 1998 i.e. for 19 years. The
\n Civil Writ Petition No. 91 of 2007                              9<\/span><\/p>\n
PCDA(P) has declared the disease to be constitutional, however, without<\/p>\n
placing any material before this court in evidence of the fact that has been<\/p>\n
made the basis to deny the claim of the petitioner. A specific note with<\/p>\n
supporting material was required to be given that the disease could not<\/p>\n
have been detected at the time of induction of the petitioner in Army. No<\/p>\n
material has been placed before this Court to show that any such note was<\/p>\n
given and nor any material has been brought forth to justify the action of<\/p>\n
the PCDA(P).\n<\/p>\n
             Merely saying that the matter had been adjudicated by an<\/p>\n
authority having competent jurisdiction would not serve the purpose in<\/p>\n
law. So as to assess that the disease was constitutional [as held by the<\/p>\n
PCDA(P)] and not       aggravated by military service (as opined by the<\/p>\n
Release Medical Board on physical examination of the petitioner), reasons<\/p>\n
had to be assigned and that too after examination of the petitioner by some<\/p>\n
higher medical board. The PCDA(P) had no legal authority, in facts or in<\/p>\n
law, to sit over the judgment of the experts in the medical line, without<\/p>\n
making any reference to a detailed or higher medical board. In this view<\/p>\n
of the matter, the case is squarely covered by the judgment rendered by<\/p>\n
the Hon’ble Supreme Court of India and as followed by a Division Bench<\/p>\n
of this Court, as noticed above.\n<\/p>\n
             The writ petition is, accordingly, allowed. The petitioner<\/p>\n
would be allowed disability pension at the rate of 20% from the date of his<\/p>\n
discharge.\n<\/p>\n
February 25, 2009                                        ( AJAI LAMBA )\nKang                                                             JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court No.13733810-H Ex-Hav. Hira Singh vs Union Of India & Ors on 25 February, 2009 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) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-113655","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nNo.13733810-H Ex-Hav. 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