IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.627/98 No.8026276 : Ex.Pnr.Raghubir Mali vs. Union of India & Ors. Date of order : 21/11/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri K.P. Singh for the petitioner. Shri M.S. Raghav for the respondents. ****** REPORTABLE Heard learned counsel for the parties. This writ petition has been filed by the petitioner seeking payment of disability pension. Petitioner was enrolled in Indian Army as a Sepoy on 11.4.1979. Having been invalidated out of service in category EEE, he was discharged from the army on 22.6.1982. The petitioner served the Indian Army for a total period of 3 years, 2 months and 12 days. Shri K.P. Singh, learned counsel for the petitioner has argued that the petitioner was not granted the disability pension even though the Medical Board, on whose recommendation he was invalidated out of service, clearly opined that his disability was aggravated by military service and that he sustained 20% disability, both of which factors satisfied the requirement of clause 173 of the Pension Regulations for the Army. It was argued that petitioner submitted appeal to the Government of India on 19.1.1985 which was rejected by letter dated 5.12.1985. He thereafter filed another appeal which too was rejected. Learned counsel relied on the judgement of this Court in Brigadier (Retd.) V.K. Sarda, Vr.C. vs. Union of India & Ors., S.B. Civil Writ Petition No.4033/02 and argued that this Court in aforesaid case held that opinion of the Medical Board cannot be reversed and its findings on the question of aggravation of disease by military service could not be reversed by the appellate medical authority. The writ petitioner in that case was held entitled to disability pension. Shri M.S. Raghav, learned counsel for the respondents opposed the writ petition and argued that petitioner was discharged from army service on 22.6.1982 having been found unfit for further military service. He had rendered service of only 3 years and 72 days, whereas, qualifying period of service for pension under the rules is 15 years. It was argued that the opinion of the Invalidating Medical Board was that the disability suffered by the petitioner was not attributable to, but aggravated by stress and strain of military service, which assessed his disability at 20%. However, as per the Army Order 417/74, it was for the competent authority i.e. the Chief Controller of Defence Accounts (Pensions) Allahabad, either to sanction or reject the disability claim and accordingly the matter was forwarded to him and he rejected the disability claim. Reference in this connection was made to the letter dated 16.10.1982 and Pension Regulations for the Army Part-I, 1961. It was argued that the findings of the Medical Board are recommendatory in nature and not to be taken as binding or final. The Chief controller of Defence Accounts (Pensions) Allahabad, while adjudicating the case before rejecting or accepting a disability pension claim invariably takes into account specialist medical opinion in each case from Medical Advisor (Pensions) attached to them. The petitioner in any case approached this Court 13 years after the date of his discharge. The writ petition is therefore liable to be dismissed. I have given my anxious consideration to the rival submissions and perused the material on record. The Supreme Court in Controller of Defence Accounts (Pension) & Ors. vs. S. Balachandran Nair- (2005) 13 SCC 128 has authoritatively held that for the purpose of deciding whether or not a disability is attributable to or aggravated by the military service, opinion of the Medical Board has to be respected and cannot be brushed aside. This Court in Brigadier (Retd.) V.K. Sarda, supra had the occasion to deal with a case where in the similar manner, the Medical Board opined that disease suffered by petitioner was aggravated by military service. In that context the argument raised by the Union of India that the opinion of the Medical Board could be reversed by the Chief Controller of Defence, Pension was rejected, holding thus:- “What this Court is called upon to examine in the present matter is that whether the disease ISD with which the petitioner was found to be suffering was aggravated due to military service because it is not even the case of the petitioner that such disease was attributable to military service. In other words, what is contended on behalf of the petitioner is that when he contracted such disease, had the same been timely diagnosed, he would have been entitled to be brought in a lower medical category than higher one, in which he was all this time required to work. The report of the First Medical Board dated 24.1.1993 clearly shows that while the Medical Board did not opine this disease to be attributable to the conditions of service, but it clearly stated that even though it was not directly attributable to service, but was aggravated thereby. The report of the Second Medical Board held on 10.10.1993, also indicates that the Board this time though had not attributed the disease to service conditions, but again held it to be aggravated thereby. In the column relating to specific conditions and period in service which aggravated the disability, it is stated therein that disability was aggravated “due to failure in diagnosis” and reference therein was made to the proceedings of the First Medical Board dated 24.1.1994. Disability of the petitioner was assessed to be 20%. This Court in Birbal Singh, supra also upheld the claim of disability pension of the petitioner who was diagnosed to have Ischaemic Heart Disease like the petitioner holding that the said disease was aggravated due to stress and strain of service and directed payment of benefit of disability pension to him with effect from discharge from service together with interest at the rate of 12% per annum. In Ram Kumar Singh, supra, a coordinate bench of this Court while following the judgement of Supreme Court in Ex.Sapper Mohinder Singh vs. U.O.I., Civil Appeal No.164/1993 decided on January 14, 1993 held that the opinion of the Medical Board has to be respected and the Chief Controller of Defence (Pension) had no basis or reason to differ with the report of the Medical Board. The Supreme Court in Ex.Sapper Mohinder Singh observed as under:- “In view of all the relevant circumstances of the case we are of the opinion that the Disability Pension assessed at the rate of 40% by the Medical Board, which had examined the appellant, should be respected until fresh Medical Board examines the appellant again and comes to different conclusion.” Regulation 48(b) of the Pension Regulations for Army Part-I provides whether a disability attributable to or aggravated by military service shall be determined under Rules in Appendix-II. Rule 4 thereof provides that in deciding on issue of entitlement, all the evidence, both direct and circumstantial will be taken into account and benefit of doubt will be given to the claimant and this benefit will be given more liberally to the claimant in field service cases. Rule 7 provides for the guidance on the question of aggravation and states that in cases where it is established that conditions of military service did not determine or contribute to the onset of the disease but influenced the subsequent course, the disease would fall for acceptance on the basis of aggravation. It further provides that a disease which has led to an individual's discharge from service will ordinarily be deemed to have arisen in service, if no note of it was made at the time of individual's acceptance for military service. However, if medical opinion holds for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. The division bench of this Court in Bhoora Ram, supra interpreted clause (b) of Rule 7 in the terms that though there is a presumption that a disease which led to discharge, would be presumed to have arisen in service if no note of it was made at the time of enrollment in the military service. This presumption however is not conclusive proof of a fact. It was thus held that presumption is always rebuttable which is evident from the latter part of clause (b) that if the Medical opinion holds to the contrary, the disease will not be deemed to have arisen during service. But that judgement would not be relevant for deciding the controversy involved in the present case because it is not even the case of the petitioner that the disease is attributable to military service. What is contended is that though the disease is contracted by him during military service, but this was aggravated due to continued engagement in the military service which he was not fit enough to discharge. Rule 4 of the Appendix II, supra thus assumes a significance in the case of the present nature which inter alia, provides that cases in which it is established that conditions of military service did not determine or contribute to the onset of the disease but influenced the subsequent course of disease, will fall for acceptance on the basis of aggravation. Even the respondents do not dispute that medical category of the petitioner was all along not down graded and that he continued to discharge normal duties and functions attached to his office. It is also not shown as to on what material and basis, the Appellate Medical Authority disagreed with the findings of the First Medical Board which inter alia opined that “Officer suffered from IHD on 07 Jan 92. Coronary angiography carried out in March 92 at Batra Hospital Delhi showed triple vessel disease as brought out by cardiologist in his opinion dated 3.3.92. Aggravation awarded due to atheroma manifesting itself as IHD due to failure in diagnosis resulting which the officer allowed to perform duties in higher medical category. Charter of duties dt. 18 May 92 is attached.” The opinion of the Medical Board thus was based on consideration of two factors; one the kind of disease and second the factors which contributed to its aggravation. Atherosclerosis of coronary blood vessels by the very nature of disease would show that it develops over a long period of time and is progressive in nature. Its progression leading to involvement of all triple vessels cannot be said to develop suddenly and it takes number of years to develop. The Medical Board which made the first examination of the petitioner thus formed its own view about the disease from the first hand impression and then it considered the second aspect of the factors leading to its aggravation which also included the nature of duties discharged by the petitioner in the immediate past. Nothing has been brought on record as to what was the basis on which the Appellate Medical Authority reversed the view taken by the First Medical Board. Merely because the disease of IHD was diagnosed when the petitioner was posted in peace stations, the Appellate Medical Authority would not be justified in holding that it did not aggravate due to stress and strain during service and was diagnosed and managed well in time.” There are two requirements of Regulation 173 of Pension Regulations for the Army Part- I, 1961 that (i) the disability must be attributable to or aggravated by military service, (ii) that the disability should be assessed at 20% or more. What is thus provided for by Regulations 173 is that the disability should be either attributable to or aggravated by military service and the words “aggravated by” are significant on this aspect, which implies that even if a disability is not attributable to military service but is aggravated thereby and if it is assessed at 20% or more, it would entitle the person concerned of disability pension. Even if therefore a disability is not attributable to military service but is aggravated thereby and is assessed at 20% or more, the same would also entitle the person subject to Army Act to disability pension. The respondents however while resisting the claim of the petitioner have relied on the corrigendum dated 21.6.1996, copy of which is placed at Annexure-R/3 with their reply, which has defined the competent authority for giving medical opinion on the aspects of assessment of disability and acceptance of death / disablement due to causes attributable to or aggravated by military service. In respect of initial claims of personnel below officer rank, it is the Medical Advisor (Pension) Jt. Director AFMS (Pension) attached to the office of Chief Controller of Defence (Pension). Though the respondents in their reply to the writ petition have admitted that the Medical Board while invalidating out the petitioner opined that the disability suffered by him is not attributable to, but is aggravated by stress and strain of military service and the disablement was assessed at 20%, but they have not disclosed as to what weighed with the Chief Controller of Defence Accounts (Pension) in reversing that view of the Medical Board that the disability suffered by the petitioner was aggravated by stress and strain of the military service. In view of the judgment of this Court in Brigadier (Retd.) V.K. Sarda Vr. Chakra and the finality attached to the opinion of the Medical Board, which had the first hand knowledge of medical condition of the petitioner having personally examined him and in view of the fact that the respondents have not produced before this Court any other material or justification showing why such an opinion was reversed, the petitioner has certainly made out a claim for disability pension. The writ petition is therefore allowed. The respondents are directed to grant to the petitioner disability pension from the date of his discharge till date. However the delay in filing of the writ petition cannot be otherwise ignored as two appeals were dismissed in between. For that reason, the petitioner is not awarded any interest on the arrears of the disability pension. The respondents are directed to pay the arrears to the petitioner within a period of three months from the date of receipt of copy of this order and are further directed to continue to pay him disability pension on month to month basis. Compliance of the judgement be made within a period of three months from the date its copy is produced before the respondents. RS/ (MOHAMMAD RAFIQ), J. RS/