IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 2136 of 2007. Reserved on: 29.10.2008. Decided on: 11.11.2008. Shri Udham Singh. … … … Petitioner. Versus Union of India and Others. … … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the petitioner: Mr. Ramakant Sharma, Advocate. For the Respondents: Ms. Shilpa Sood, Central Government Counsel. Rajiv Sharma, Judge: Brief facts necessary for adjudication of this petition are that the petitioner was enrolled in Regiment of Artillery on 25.10.1971. He appeared before the Release Medical Board on 17th April, 1993. His degree of disablement was assessed at 40% for two years. He was discharged from the Army on 1.11.1993. His claim for disability pension was rejected on 28th February, 1995 on the ground that his disability was assessed by the Medical Advisor (Pension) as less than 20% for 5 years. He preferred an appeal against the rejection of his disability pension on 21st July, 1995. The appeal was rejected on 31st October, Whether reporters of local papers may be allowed to see the judgment? No. - 2 - 1996. The next Review Medical Board of the petitioner was due in 1998. According to the petitioner he was not given any intimation about the Resurvey Medical Board to be convened in the year 1998. The petitioner submitted petition for convening of Resurvey Medical Board on 25.7.2003. Thereafter the Resurvey Medical Board was convened at Jalandhar on 30 September, 2003. His degree of disablement was assessed as less than 20% (15-19%) permanent. He preferred a petition on 13th May, 2006 to arrange for a Review Medical Board. Accordingly, after obtaining necessary sanction a Review Medical Board was held on the petitioner at Army Hospital Delhi on 22nd December, 2006 for assessment of his disability and his disability was assessed as 20% for life. Thereafter the petitioner was granted disability pension at the rate of Rs.310/- per month for life with effect from 22nd December, 2006, i.e. the date on which Review Medical Board was held. Mr. Ramakant Sharma has strenuously argued that the disability of his client was assessed as 40% by the Release Medical Board on 17th April, 1993 and the Medical Advisor (Pension) could not reduce it to less than 20% for 5 years. He then contended that the petitioner has not been informed of two Review Survey Medical Boards held in the year 1998 and 2003. He lastly contended that the petitioner is entitled to get disability pension from the date of discharge, i.e. 1.11.1993 instead of 22nd December, 2006. Ms. Shilpa Sood has strenuously argued that the petitioner’s disability though was assessed as 40% for two years by the Release Medical Board, however, as per the decision of the Medical Advisor (Pension), the same was assessed less than 20% for 5 years. She then contended that the petitioner was informed of the Resurvey Review Medical Board convened in the year 1998 through his wife on - 3 - 7.8.1998 and the petitioner was also informed personally on 25.1.1999 vide Annexures R-1/D and R-1/E respectively. She further contended that the Review Resurvey Medical Board was convened on 30th September, 2003 on the basis of his petition dated 25.7.2003. His disability was assessed as less then 20%. He again filed a petition on 13th May, 2006 for a Review Medical Board and consequently as per recommendations made by the Review Resurvey Medical Board his disability was assessed as 20% for life and he has been paid the disability pension at the rate of Rs.310/- per month for life. I have heard the learned counsel for the parties and perused the record carefully. The petitioner was discharged from the Army on 1st November, 1993 on the basis of the recommendations made by the Discharge Medical Board dated 17th April, 1993. His disability was assessed as 40% for two years. However, Medical Advisor (Pension) has reduced it to less than 20% for 5 years. The respondents have not placed any material on record to show how the disability assessed by the Review Resurvey Medical Board assessed as 40% has been reduced to 20% for 5 years. The petitioner was examined at the time of his discharge by the Release Medical Board, but he was not examined physically by the Medical Advisor (Pension). In other words, only the documents of the petitioner have been seen by the Medical Advisor (Pension) while coming to the conclusion that the petitioner’s disability was less than 20%. Ms. Shilpa Sood has strenuously relied upon Annexure R-4, dated 21st June, 1996 to support her submission that the recommendations given by the Invaliding Medical Board (IMB)/Release Medical Board (RMB) are recommendatory in nature and are to be reviewed by the - 4 - competent Medical Authority at the time of consideration of initial claim/appeal for grant of disability pension. The corrigendum Annexure R-4 is dated 21st June, 1996. However, the case of the petitioner was reviewed by the Medical Advisor (Pension) on 28.2.1995. The corrigendum dated 21st June, 1996 cannot be applied retrospectively. Invaliding Medical Board and Release Medical Board has the necessary expertise to assess the disability after examining the individual personally. In the present case, the disability of petitioner assessed as 40% by the Invaliding Medical Board/Release Medical Board and the same could not be reduced to 20% without assigning any reasons. It will be apt at this stage to take note of para (b) of the corrigendum dated 21st June, 1996 only for the purpose of clarification that the competent Medical Authority may for the reasons to be recorded in writing, alter or modify the recommendations of IMB/RMB/RSMB/Lower Medical Authorities. In the present case the corrigendum dated 21st June, 1996 would not apply as noticed above. Assuming hypothetically that similar instructions did exist in the year 1995 enabling the competent authority to review the decision, in that case also it was necessary for the authorities to record in writing the reasons for altering/modifying the recommendations of the Release Medical Board. The respondent have not placed any record showing that the reasons were recorded while lowering the disability assessed by the Release Medical Board by any competent Medical Authority including the Medical Advisor (Pension). The disability of the petitioner was assessed as 40% by the Release Medical Board, however, the Medical Advisor (Pension) has reduced it to 20% for 5 years. - 5 - Accordingly, it is held that the petitioner was entitled to disability pension with effect from 1.11.1993 to April, 1998. The plea of the petitioner that he was not informed of the Review Medical Board to be held in the year 1998 and 2003 cannot be accepted in view of the material placed on record by the respondent-Union of India. It is evident from Annexure R-1/D and Annexure R-1/E that the petitioner’s wife and the petitioner himself had been informed about the Review Medical Boards to be held at Jalandhar. The respondent-Union of India has placed on record the recommendations of the Review Medical Board held in the year 2003 vide Annexure R-5 of the paper book. The Review Medical Board of 2003 was convened on 30th September, 2003 on the basis of the petition filed by him on 25.7.2003. His disability was assessed less than 20% in the year 2003. It was only on 22nd December, 2006 that his disability was assessed as 20% for life on the basis of which he is granted disability pension at the rate of Rs.310/- per month for life. Consequently, in view of the discussions made hereinabove, the writ petition is disposed of with the following mandatory directions:- i) The respondent-Union of India is directed to release the disability pension to the petitioner with effect from 1.11.1993 upto April, 1998 with interest at the rate of 9%; ii) The respondents are directed to work out the disability pension with effect from 1.11.1993 to April, 1998 within a period of eight weeks from today and to release the same to the petitioner within eight weeks thereafter. - 6 - It is clarified that the petitioner is not entitled to any disability pension with effect from April, 1998 to 22nd December, 2006. However, he will keep on getting pension with effect from 22nd December, 2006 onwards regularly. No costs. (Rajiv Sharma) November 11, 2008. Judge. (sck).