IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 OP.No. 34724 of 2000(H) ----------------------- PETITIONER(S): --------------- M.K. SIVARAMAN, MALAPPURATH HOUSE, PARAMANGALAM P.O., THRISSUR, KERALA - 680545. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT(S): ---------------- 1. GOVERNMENT OF INDIA, REP. BY SECRETARY TO GOVERNMENT, MINISTRY OF DEFENCE, NEW DELHI. 2. THE OFFICER-IN-CHARGE, RECORDS: SIGNALS, JABALPUR (M.P) ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R1&2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 23/09/2008, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 34724/2000. ----------------------------------------------------------------- EXT.P1 COPY OF LETTER DT. 21-11-1997. EXT.P2 LETTER DT. MARCH 1998. EXT.P3 APPEAL DATED 16-4-1998. EXT.P4 ORDER DT. 21-9-1999. EXT.P5 MEDICAL CERTIFICATE DT. 27-10-2000. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 34724 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 23rd September, 2008. J U D G M E N T The petitioner was invalided out of military service in October, 1988. From then on, he was being paid disability pension. On 15-1- 1993, the petitioner was assessed as permanently disabled. Thereafter, the petitioner was directed to appear for a further medical examination and as per Ext. P1 report of the Medical Board dated 21- 11-1997, the petitioner's disability was re-assessed and fixed at 20%. The petitioner was continued to be paid disability pension till 5-1- 1998. However, by Ext. P2 dated March, 1998, the petitioner was informed that his disability is less than 20% and therefore the petitioner is not entitled to continued payment of disability pension. In appeal, the same was confirmed by Ext. P4. The petitioner is challenging Exts.P 2 and P4. 2. The contention in the counter affidavit filed by respondents is that the Medical Board who examined the petitioner and certified 20% disability is not the final authority to determine the percentage of disability. On the other hand, the pension sanctioning authority, in consultation with the Joint Director of Armed Forces Medical Services, who is attached to the Medical Advisor (Pension), has decided that the percentage of disability is less than 20%, which is what is to be taken into account for deciding eligibility for pension is the contention raised by the respondents . 3. I have considered the rival contentions in detail. 4. I am at a complete loss to understand how the Joint Director of Armed Forces Medical Services and the Medical Advisor (Pension) who have never seen the petitioner could decide the percentage of disability, when a team of medical doctors of the military had examined the petitioner and determined the percentage of disability as 20%. No records are also produced before me to prove as to how O.P No. 34724/2000 -: 2 :- the Joint Director has come to the conclusion that disability assessed by the Medical Board is wrong. That being so, I am of opinion that the report of the Medical Board, which examined the petitioner, should be given more weight in the circumstances. Since, by Ext. P1, that Medical Board has assessed the petitioner's disability at 20%, Exts.P 2 and P4 orders are clearly unsustainable. Accordingly, the same are quashed. The respondents are directed to continue to pay to the petitioner disability pension as before as if he has never become disentitled for pension. Arrears in this regard shall be paid within two months from the date of receipt of a copy of this judgment. If the arrears are not paid within the said two months, the same would carry interest at 9% p.a. from the date from which payment of pension was stopped, till date of payment. The original petition is disposed of as above. Sd/S. Siri Jagan, Judge. Tds/ O.P No. 34724/2000 -: 3 :- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 34724 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= J U D G M E N T 23rd September, 2008.