C.M. No.3066 of 2009 and -1- LPA No.1137 of 2009 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No.3066 of 2009 and LPA No.1137 of 2009 (O&M) Date of decision: 10.02.2010 No.165986 EX RPO Om Parkash ............Appellant Versus Union of India and others ..........Respondents CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. R. A. Sheoran, Advocate for the appellant. ALOK SINGH, J. C.M. No.3066 of 2009 For the reasons mentioned in the application, delay of 48 days in re-filing the appeal is condoned. LPA No.1137 of 2009 (O&M) 1. The petitioner/appellant by way of present L.P.A., assailing the order dated 29.5.2009, thereby the learned Single Judge has dismissed the CWP No.14563 of 2008. 2. The brief facts of the present case are that C.M. No.3066 of 2009 and -2- LPA No.1137 of 2009 (O&M) petitioner/appellant joined the Navy Service on 9.8.1986. In the year 1995, petitioner was diagnosed with Brain tumor (Craniopherygioma Rt. front) and he was directed to report at Army Hospital and he was admitted there and was operated on 7.10.1995. The petitioner was down graded in medical category {CEE(T)} w.e.f. 7.10.1995. Petitioner was retired from Navy service w.e.f. 31.8.2001. Petitioner was brought before release medical board, who recommended disability of the petitioner to the extent of 20% for two years but held that disability of the petitioner is neither attributable nor aggravated to Navy service. Claim of the petitioner for disability pension was referred to the Principal Controller of Defence Accounts (Pensions) (PCDA), Allahabad, for adjudication. The claim for disability pension was rejected by PCDA (Pensions), Allahabad vide order dated 23.1.2003 on the ground that the disability was not attributable to Navy service and had not been aggravated by it. Appeal preferred by the petitioner was also dismissed vide order dated 11.1.2005 on the ground that disability was not attributable to Navy service and had not been aggravated by the Navy service. Petitioner filed a second and final appeal to the Defence Minister's Appellate Committee which was also dismissed vide order dated 3.2.2006. Writ petition filed by the petitioner was also dismissed by the impugned order. 3. We have heard learned Counsel for the petitioner/appellant and perused the record. 4. Learned Counsel for the petitioner/appellant C.M. No.3066 of 2009 and -3- LPA No.1137 of 2009 (O&M) vehemently argued that at the time of entry in service, petitioner was found medically fit and while serving in the Navy, petitioner was diagnosed with Brain tumor and was operated. At the time of discharge, the petitioner had a medical problem causing disability. Hence, disability/disease developed while in Navy service makes the petitioner entitled for the disability pension. Learned Counsel for the petitioner has placed reliance on the judgment of a Divisional Bench of this Court in the matter of A.J.S. Chaudhary vs. Union of India and others reported in 1998(8) SLR 615 and on the judgment of Delhi High Court in the matter of Naveen Chandra and others vs. Union of India and others reported in 2006(4) SCT 626. 5. In the case of AJS Chaudhary (supra), petitioner therein suffered from 'Schizophrenia' and note had not been given at the time of entry in service, the petition was allowed,. In the case of Naveen Chandra (supra), medical board did not express its view clearly and no specific opinion was given and petitioner therein suffered from 'Affective Psychosis' . In the present case, petitioner/appellant was diagnosed with Brain tumor and Medical Board recorded its opinion that Brain tumor cannot be attributable to Navy service. Hence, facts of both the cases cited above are different. 6. Learned Single Judge has placed reliance on the judgments in the matter of Union of India and Another vs. Baljit Singh, 1996(11) SCC 315, Union of India and others vs. Dhir Singh China, Colonel (Retd.), 2003(2) SCC 382 and C.M. No.3066 of 2009 and -4- LPA No.1137 of 2009 (O&M) Union of India and others vs. Keshar Singh, 2007(5) SCR 408. 7. We are in agreement with the learned Single Judge on the point that Brain tumor can not be attributable to Navy service and cannot be said having been aggravated by the Navy service. In the present case, medical board has clearly opined that disease diagnosed was not attributable to the Navy service. We find no reason to interfere with the view taken by the learned Single Judge. 8. For the reasons recorded above, the appeal being devoid of merit, must fail, and the same is dismissed with no order as to costs. (ALOK SINGH) JUDGE (ADARSH KUMAR GOEL) 10.02.2010 JUDGE ashish