HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 857 of 2008 (S/S) Ex Sepoy Vipin Kumar. … Petitioner. Versus The Union of India and others. … Respondents Sri Lalit Kumar, Advocate for the petitioner, Mrs. Anjali Bhargava, Standing Counsel for Union of India/respondents. Dated: December 24, 2009: Hon’ble V.K. Bist, J. Present petition has been filed by the petitioner for the following reliefs:- “A) To issue a writ of certiorari to quash the orders dated 10.11.2005 (annexure-10), 28th December, 2006 (annexure -12) and 10th July, 2008 (annexure-14), passed by respondent nos. 3, 2 and 1 respectively, holding the same as illegal and ultra vires of the Pension Regulations for the Army, 1961; B) To issue a writ, order or direction in the nature of mandamus commanding respondent no.3 to treat the disability of the petitioner as attributable to the military service and grant him, with effect from 15.01.2005, the disability pension with the disability element at 100%, service element at 2/3rd of the full pension as relevant to petitioner’s rank/grade, and ‘constant attendance allowance’ at the applicable rate and issue the Pension Payment Order (PPO) accordingly, within a peremptory time period to be fixed by the Hon’ble Court in its own wisdom; C) To award interest at the rate of 18% per annum with effect from 15.01.2005 on the amounts that would become payable to the petitioner, in consequence of grant of the relief prayed for in the preceding prayer; D) To award the exemplary/adequate compensation to the petitioner as against the respondents for causing inexplicable and immeasurable physical, mental, financial and emotional injury and loss to him while 2 seeking justice from the respondents for past three years; E) To award the cost of this petition; AND to award any other relief which the Hon’ble Court may deem fit and proper on the facts and circumstances of the case.” 2. Brief facts of the case, inter alia, are that on 03.12.2001 the petitioner having been found medically fit was enrolled as a soldier in the MAHAR Regiment (Infantry). During his recruit training, the petitioner was awarded a certificate of the ‘all round best recruit’. Thereafter, the petitioner was retained in the training centre till May, 2004 for participating in the rifle shooting competition. During the period from 2002 to 2004 the petitioner was found medically fit in SHAPE-1 medical category i.e. the highest degree of fitness. In the month of May, 2004 the petitioner was posted to 4 MAHAR at Tangdhar in Jammu and Kashmir and while participating in the rifle shooting practice/ competition, he got sprayed into his right eye a very small amount of rifle oil from the breach block of the rifle resulting vision of his right eye to be hazy. Thereafter, the petitioner found that the vision of his left eye was also getting adversely affected. On 21.06.2004, the petitioner reported to the Medical Officer of 328 Field Ambulance who referred him to 92 Base Hospital at Srinagar, Jammu and Kashmir for treatment. Till 26.06.2004 the petitioner remained admitted in the said base hospital. After thorough examination by the Eye Specialist, the Eye Specialist gave a finding that the petitioner was unfit for duty requiring good binocular vision and he downgraded the petitioner permanently to medical category E-3 for eye factor. In the month of November, 2004, when the superior officers of the petitioner found that the petitioner had nearly lost his 3 vision in both the eyes, he got admitted to 166 Military Hospital on 16.11.2004. After remaining under treatment for a period of one and half months, when the Eye Specialist found that petitioner’s vision could not be retrieved, the petitioner was downgraded to permanent medical category E-5 by a Medical Board and invalided out of service and sent him home. The petitioner was also issued a disability certificate by the Officer Commanding of 166 Military Hospital on 13.01.2005 mentioning therein that the petitioner had been invalided out of service with 100% disability due to ‘HYPERMETROPIC AMBLYOPIA RETROBULBAR NEURITIS WITH CONDUCTION DEFECT (NEURONAL) BOTH EYES’. 3. Thereafter, on making query from respondent no.4 about the grant of disability pension to petitioner, the respondent no.4 informed that the claim of the petitioner for grant of disability pension had already been submitted to the office of respondent no.3 vide letter dated 28th May, 2005. Respondent no.3 vide his order dated 10th November, 2005 rejected petitioner’s disability pension claim on the ground that the disability of the petitioner was neither attributable to nor aggravated by military service. Consequently, on 30th January, 2006 the petitioner preferred an appeal before the Chief of the Army Staff/respondent no.2 which was rejected on 28th December, 2006. Thereafter, on 21st March, 2007 the petitioner filed the second appeal before Secretary, Ministry of Defence/respondent no.1 which was also rejected. Hence this writ petition has been filed. 4. It has been alleged in the petition that after the petitioner was sent to his home, various Eye 4 Specialists were contacted and a reputed Eye Specialist, after knowing his complete history, informed that loss of vision could have been due to high altitude effects of the area. The Eye Specialist gave a copy of the relevant literature which clearly states that snow blindness which is a common phenomenon in the high altitude areas can cause permanent vision loss. Petitioner also annexed photocopy of relevant literature in his petition. Relevant portion is quoted below:- “Snow blindness (Niphablepsia) is a painful condition, typically a keratitis, caused by exposure of unprotected eyes to the ultraviolet (UV) rays in bright sunlight reflected from snow or ice. This is especially a problem in polar regions and at high altitudes, as with every thousand feet (approximately 305 meters) increase in elevation, the intensity of UV rays goes up five percent. The problem is also related to the condition arc eye sometimes experienced by welders. Snow blindness is akin to a sunburn of the corneau and conjunctiva, and may not be noticed for several hours from exposure. Symptoms can run the gamut from eyes being bloodshot and teary to increased pain, feeling gritty and swelling shut. In very severe cases snow blindness can cause permanent vision loss.” 5. Respondents in their counter affidavit submitted that the petitioner was invalided out of service for principal disability ‘RETROBULAR NEURITIS HYPERMETROPIA (OLD) B/L, AMBLYOPIA (RT) EYE’ under Army Rule 13 (3) III (iii) on 15 Jan, 2005 after rendering 3 years and 43 days qualifying service. The respondents came up with the case that the disability pension claim of the petitioner was forwarded to the 5 Pension Sanctioning Authority i.e. PCDA (P) Allahabad vide Records of the Mahar Regiment letter no. 4574435/ 04/DP dated 28th May, 2005, but the same was rejected in consultation with the Medical Adviser (Pensions) vide letter no. G3/72/82/6-05 dated 10.11.2005 on two grounds: first, the disability is neither attributable to nor aggravated by military service and secondly, the same is constitutional in nature and not related to service. The decision of CDA (P) Allahabad was communicated to the petitioner vide letter no. 4574435/ 213/ DP dated 09.01.2006 with an advice to prefer appeal to the Addl. Director General Personnel Service (PS-4) (d) Army Headquarters within a stipulated period, if he is not satisfied with the decision. The appeal of the petitioner was examined by integrated HQ of MOD (Army) who rejected the same vide letter no. B/40502/771/AG/PS-4 (Imp-II) dated 28.12.2006 and the facts had been communicated to the petitioner with an advice that, in case, if the petitioner is not satisfied with the decision of the appellant committee, he may prefer second appeal. Thereafter, the petitioner preferred second appeal on 21st March, 2007 against the rejection of his disability pension to the Govt. of India, Ministry of Defence (Pen-A) New Delhi and the same was rejected vide order no. 1 (326)/2007/D (Pen-Appeal) dated 10th July, 2008. It has been further submitted that in accordance with Para-173 of Pension Regulation, Part-I, 1961, the disability pension is granted only to those individuals whose disability is either attributable to or aggravated by military service or both and percentage agreed by medical authorities should not be less than 20%. Further, as per medical documents/invalid Medical Board Proceeding AFMSF-16, invalid disability i.e. the ‘RETROBULBAR NEURITIS 6 HYPERMETROPIA (OLD) B/L, AMBLYOPIA (RT) EYE’ of the petitioner neither attributable to nor aggravated by military service, therefore, the petitioner is not entitled for disability pension. 6. Heard Sri Lalit Kumar, the learned counsel for the petitioner and Smt. Anjali Bhargava, the learned Standing Counsel for Union of India/respondents and perused the entire material available on record. 7. Learned counsel for the petitioner submitted before the Court that petitioner had joined the service in a medically fit condition. During the period from 2002 to 2004 petitioner was found medically fit in SHAPE-1 medical category (highest degree of fitness). The disease of “RETROBULBAR NEURITIS HYPERMETROPIA BILATERAL AMBLYOPIA” from which the petitioner suffered, was discovered during annual medical inspection. Although the petitioner had been found to be suffering from the above disease, he was not referred to the Military Hospital for medical treatment, but sent on posting to a High Altitude Area on 07.06.2004. Within 3 weeks after arrival in the unit at High Altitude Area, the petitioner reported to the Hospital with the complaint about the loss of vision in both eyes. For the rest of duration, the petitioner was either in hospital or on sick leave. Learned counsel for the petitioner submitted that a careful perusal of literature given by the Eye Specialist and which has been annexed as annexure 7 to the writ petition would indicate that the said disease is not constitutional in nature, and it can be treated if detected early. Learned counsel for the petitioner further submitted before the Court that the petitioner approached 7 reputed Eye Specialist who opined that RETROBULBAR NEURITIS is the inflammation of the part of the optic nerve just behind the optic disc. It has different causes and if diagnosed and treated in time, it can be cured. Regarding HYPERMETROPIA the Eye Specialist opined that same is a reflectory error since childhood and could have been detected by the Medical Board during the medical examination at the time of entry in service. He argued that since petitioner became victim of said disease while serving Army, it cannot be said that said disease was neither attributable to nor aggravated by Military service. He further submitted that the respondents inspite of treating the petitioner’s disease, namely, RETROBULBAR NEURITIS kept him in duty and permitted his eyes to deteriorate. He also submitted that petitioner was wrongly discharged for the disease of HYPERMETROPIA as same was not detected at the time of entry in service. Learned counsel for the petitioner also referred Draft Army Order of 2000 which contains the policy on health care system in the Army. Para 3 of this Army Order lays down that the object of the medical examination is to detect disease at an early stage when it may be latent and institute timely preventive and curative measures to promote positive health. He argued that in any case, the deterioration in petitioner’s health was due to negligence of respondents as timely reference to high medical centre would have saved petitioner’s eyes. 8. He further argued that disability during Army service by any type of disease should be covered under the clause “Attributed to Military Service” because no person who is suffering from any disease is taken in Army. The learned counsel for the petitioner also drew my attention 8 to the Part III of Medical Board’s Proceeding which was filled by the Commanding Officer of the petitioner in which he had mentioned that the petitioner was not under the low medical category when he joined the unit. The Commanding Officer also mentioned that the disability of the petitioner was aggravated by service and recommended the case of the petitioner. Learned counsel for the petitioner argued that in view of specific remarks of the sanctioning authority the petitioner should have been granted the disability pension. 9. Smt. Anjali Bhargava, the learned Standing Counsel for the respondents argued that the disability pension is not a regular pension but is a causality award/ compensation for any disability caused during the performance of duties of service which is accepted as attributable to or aggravated by the Military Service. She submitted that Para-5 (a) & (b) of Appendix II referred to in the Regulation 48, 173 & 185 of the Army Pension Regulations provides that ordinarily if a disease has lead to the discharge of an individual, it shall be deemed to have arisen in service if no note of it was made at the time of individual’s acceptance for military service. Learned counsel for the respondents further submitted that in the instant case though the individual was presumed to have been in sound physical and mental condition at the time of acceptance of military service, but the invaliding Medical Board assessed disability 100% and held that the disability of petitioner was neither attributable to or aggravated by military service. She argued that the medical examination is done by the Recruitment Medical Officer at the time of enrolment without using the services of a specialist and special investigations are not carried 9 out unless felt necessary at the time of recruitment. Learned counsel for the respondents argued that the question whether a disability is attributable to or aggravated by service or not is to be decided by a Medical Board and not by the Commanding Officer of the Unit. She argued that where award of the disability pension or reassessment of disabilities is concerned, a duly constituted Medical Board alone is the competent authority. In the case of the petitioner the Medical Board clearly opined that the disease is neither attributable to nor aggravated by Military Service. She further argued that the opinion of the Medical Board, which is a specialized body, cannot be brushed aside easily by the Court. 10. In support of his argument the learned counsel for the petitioner cited judgments reported in 1996(2) SLR 149 Joginder Singh vs Union of India & others, 1999 STPL (LE) 26149 SC-Madan Singh Shekhawat vs Union of India & others, (2005) 13 S.C.C. 128-Controller of Defence Accounts vs S. Balachandran Nair, Union of India & others vs Keshar Singh decided by the Supreme Court in Appeal (Civil) No.762 of 2001, 1994(2) All India Services Law Journal 32 (P& H)-Surjeet Singh vs Union of India and another, 1994(2) All India Services Law Journal 33(Bom)-Mrs. Shubhangi Gurudas vs Govt. of Goa & Others, 1999(2) SLR 226 (P&H)- Balwant Singh vs Union of India, Hony Capt. Vardip Singh & another vs. Union of India & others decided by Delhi High Court in WP(C) No.284/2000, (2001)1 J & K Law Reporter 149-Gurudas Singh vs Union of India & others, 73 (1998) Delhi Law Times 567-Raghubir Singh vs Union of India & another, 2000(1) Labour & Services 10 Judicial Reports 163-Gurumukh Singh vs Union of India. On the other hand, Smt. Anjali Bhargava, counsel for the respondents relied on the judgment reported in (2008)5 S.C.C. 747-Union of India vs Surendra Singh Rathore, (2007)12 S.C.C. 675-Union of India vs Keshar Singh, (2005)13 S.C.C. 128-Controller of Defence Accounts vs S. Bala Chandran Nair, (2003)2 S.C.C. 382-Union of India vs Dheer Singh China and (1996)11 S.C.C. 315-Union of India vs Baljit Singh. 11. Having heard learned counsel for the parties and after carefully examining entire record annexed with the pleadings, this Court finds that the petitioner joined the Regular Army in a medically fit condition, and no note about his suffering from any eye disease was made at the time of his initial entry into the service. At the time of annual medical examination at training centre, during the period from 2002 to 2004, the petitioner was found medically fit in SHAPE-1 medical category i.e. highest degree of fitness. Eye problem of the petitioner for the first time was detected on 21.06.2004 and he was admitted in 92, Base Hospital, Srinagar, Jammu and Kashmir for treatment. He remained in the hospital till 26.06.2004. At this stage he was downgraded permanently to medical category E-3 for eye factor. Again in November, 2004, when his superior officer found that he had nearly lost his vision in both the eyes, he got the petitioner admitted to 166, Military Hospital on 16.11.2004. Thereafter, the petitioner was downgraded to permanent medical category E-5 by a Medical Board and invalidated out of service. It appears that respondents did not take the eye problem of the petitioner seriously and instead of giving him every best possible treatment, kept 11 him busy for official duties. The result was, that the petitioner lost his both eyes and they declared him medically unfit and thus discharged him from service w.e.f. 14.01.2005. He was not granted disability pension due to the reason that the eye disease suffered by him, namely, HYERMETROPIA AMBLYOPIA and RETROBULBAR NEURITIS was, in the opinion of the Medical Board, neither attributable to nor aggravated by military service. For proper appreciation of controversy, the narration of relevant rules and regulation is necessary. Same are being quoted below: - 12. Pension Regulation for the Army, 1961: Primary conditions for the grant of disability pension:- “173-Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed 20 per cent or over. The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II.” Appendix II Entitlement Rules for Casualty Pensionary Awards, 1982 “4. Invaliding from service is a necessary condition for grant of disability pension. An individual who, at the time of his release under the Release Regulations, is in a lower medical category than that in which he was recruited will be treated as invalidated from service. JCO/OR and equivalents in other services who are placed permanently in a medical category other than ‘A’ and are discharged because no Alternative or Shelter Appointment can be provided, as well as those who having been retained in alternative employment but are discharged before the completion of their engagement will be deemed to have been invalidated out of service. 12 5. The approach to the question of entitlement to casualty pensionary awards and evaluation of disabilities shall be based on the following presumptions: (a) Member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance, (b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due to service.” 6. Disablement of death shall be accepted as due to military service provided it is certified by appropriate medical authority that: (a) the disablement is due to a wound, injury or disease which (i) is attributable to military service, or (ii) existed before or arose during military service and has been and remains aggravated thereby. This will also include the precipitating/hastening of the onset of a disability. (b) the death was due to or hastened by (i) a wound, injury or disease which was attributable to military service; or (ii) the aggravation by military service of a wound, injury or disease which existed before or arose during military service. 7. Where there is no note in contemporary official records of a material fact on which the claim is based, other reliable corroborative evidence of that fact may be accepted. 8. Anributability/aggravation shall be conceded if casual connection between death/disablement and military service is certified by appropriate medical authority. ONUS OF PROOF “9. The claimant shall not be called upon to prove the conditions of entitlements. He/she will receive the benefit of any reasonable doubt. This benefit will be given more liberally to the claimants in field/afloat service cases.” 13 Amount of disability Pension “Regulation 183. The disability pension consists of two elements viz. service element and disability element which shall be assessed as under:- (1) Service element: a) Where the individual has rendered sufficient service to earn a service pension i.e. actual service is 15 years or more (20 years or more in the case of NCs (E) (i) Equal to normal service pension relevant to the length or qualifying service actually, rendered, plus a weightage of 5 years as given in Regulation 136 (a) or 146. (b) Where the individual has not rendered sufficient service to qualify for a service pension. (i) If the disability was sustained while on flying or parachute jumping duty in a aircraft or while being carried on duty in an aircraft under proper authority. The minimum service pension appropriate to his rank (see regulation 180) and group, if any. (ii) In all other cases: Equal to the service pension as determined per Regulation 136 (a) or 146, but it shall in no case, be less than 2/3rd of the minimum service pension admissible to the rank/pay Group. It shall be further subject to minimum of Rs. 375/- p.m.” Constant Attendance Allowance “Regulation 189. A constant attendance allowance at the rate of Rs. 600/- p.m. may be granted to an individual who is awarded a disability pension as for 100 per cent disablement, if in the opinion of the invaliding or a resurvey medical board he needs the services of a constant attendant for atleast a period of 14 three months, and the necessity arises solely from the condition of me accepted disability or disabilities. The allowance may also be granted if the accepted degree of disablement of an individual is assessed at 100 per cent, but a reduced award is made under Regulation 175, provided the remaining conditions for the grant of the allowance are fulfilled. The payment of the allowance shall be governed by the regulation laid down in Appendix III.” 13. Pension Regulation 173 of the Pension Regulations for Army is very clear. A person is entitled to disability pension only when it is found that he is invalided out of service on account of a disability which is attributable to or aggravated by military service. Rule 5 of the Entitlement Rules for Casualty Pensionary Awards, 1982 provide that the approach to the question of entitlement to casualty pensionary awards and evaluation of disabilities shall be based on the presumptions that individual is presumed to have been in sound physical and mental condition upon entering the service except to as the physical disabilities noted or recorded at the time of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due to service. Rule 9 of the Entitlement Rules also provides that the claimant shall not be called upon to prove the conditions of entitlement. He/she will receive the benefit of any reasonable doubt. 14. From the reading of aforesaid provisions it is clear that an individual is not entitled for disability pension if his disability is not attributable to or aggravated by military service. The question, whether 15 disability of individual was attributable to or aggravated by military service is to be decided by the Medical Board. The Medical Board is an expert body and its opinion is entitled to be given due weight and should be accepted. Therefore, the Court cannot substitute the same by own opinion and as such cannot direct the respondents to grant disability pension to the petitioner. The case law cited by the counsel for the petitioner does not help him in view of law laid down by Hon’ble Apex Court in its various judgments, in which it has been held that the Court should not take view contrary to the Medical Board’s finding. 15. But from bare perusal of the order dated 14.01.2005 and report of the Medical Board,