IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.1918 of 2007 Date of Decision: February 25, 2009 Babu Singh .....PETITIONER(S) VERSUS Union of India & Others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Rajesh Sehgal, Advocate, for the petitioner. Ms. Ranjana Shahi, Central Government Standing Counsel, for the respondents. . . . AJAI LAMBA, J (Oral) This civil writ petition filed under Article 226/227 of the Constitution of India prays for a writ in the nature of mandamus directing the respondents to release disability element of pension for 20% disability suffered by the petitioner from 19.6.1995 to 3.2.2005, alongwith interest. Learned counsel for the petitioner states that the petitioner was enrolled in the Army on 22.9.1974. The petitioner was found medically fit in all regards at the time of induction. Even at the CWP No.1918 of 2007 [2] training centre of infantry soldiers, the petitioner was medically examined and was found fit. The petitioner was trained as an infantry soldier. The training lasted for one year and the petitioner was posted in Ist Sikh Light Infantry Regiment. The petitioner served in various places such as Sikkim, Meerut, Jammu & Kashmir, Kargil Sector, Assam and Chammb Jaurian Sector in J & K for various periods. Due to stress and strain of service, the medical category of the petitioner was down graded to CEE(T) for six months and thereafter to Medical Category CEE(P) on account of hypertension. On advise of classified specialist, the petitioner was brought before the Invaliding Board on 7.5.1990. The Medical Board held that the disease was aggravated by Army service. No document in that regard was given by the Invaliding Medical Board or the Release Medical Board as these documents have been termed as confidential by the authorities. Be that as it may, on the recommendation of the Medical Board, the petitioner was placed in Low Medical Category ‘CEE(P)’ with 20% disability due to disease ‘Essential Hypertension’ which was held to be attributable/ aggravated by Army service. Resultantly, the petitioner was invalided out of Army service on 31.8.1990 after rendering 15 years, 11 months and 9 days of service. Initially, the petitioner was granted CWP No.1918 of 2007 [3] service as well as disability pension in accordance with Regulations 173 and 179 of the Pension Regulations for the Army, 1961. Disability element of pension was granted for 5 years at 20% disability from 1.9.1990 to 18.6.1995. In the year 1995, the petitioner was brought before the Medical Board. Disability percentage of the petitioner was held to be static and the Medical Board again recommended disability of the petitioner to be 20% and the same was approved by the approving authority. The Principal Controller of the Defence Accounts (Pensions) [for short, ‘PCDA(P)] reduced the same to less than 20%. Percentage of disability was assessed at less than 20% i.e. to 6-10 %. No papers/ documents or material were supplied to the petitioner, although the order of discontinuing disability pension was detrimental to the rights of the petitioner. Resultantly, the disability element of pension was stopped for 10 years from 19.6.1995 to 3.2.2005. The petitioner filed an appeal on 10.1.1996. The petitioner was again brought before the Re-survey Medical Board in Military Hospital, Ambala Cantt. Annexure P-3 in that regard indicates that on re-assessment of disability, composite percentage of disability has been assessed at 20% in favour of the petitioner. Annexure P-4 dated 19.7.2005 makes it evident that payment of disability pension to the CWP No.1918 of 2007 [4] petitioner was recommended. Learned counsel for the petitioner states that collective reading of the facts and circumstances shows that it is not disputed that the petitioner got disabled for reasons attributable to military service. The Release Medical Board/ Invaliding Medical Board recommended pension for 20% disability for 5 years i.e. from 1.9.1990 to 18.6.1995. For no legal or valid reason assigned, disability pension was not paid w.e.f. 19.6.1995 till the time it was sanctioned, vide Annexure P-4 (dated 19.7.2005) i.e. 4.2.2005. The action of the respondents in not paying pension for this intermittent period is arbitrary. Learned counsel states that the PCDA(P) over-ruled the assessment made by the medical authorities for no given or reasonable reason and therefore, the act of the respondents is arbitrary. In this regard, learned counsel has placed reliance on judgment of the Hon’ble Supreme Court of India in Civil Appeal No.164 of 1993 (arising out of SLP(c) No.4233 of 1992) titled ‘Ex Sapper Mohinder Singh vs. Union of India’ decided on 14.1.1993 which has been placed on record as Annexure P-7. Learned counsel for the petitioner has also relied on judgment of this Court rendered in Ex-Recruit Jagjit Singh vs. Union of India & Others, Civil Writ Petition No.1687 of 2002, decided on 31.5.2006. CWP No.1918 of 2007 [5] Learned counsel for the petitioner has further asserted that the petitioner was not re-examined by a Board of Doctors in assistance to PCDA(P). In such circumstances, the PCDA (P) had no occasion or reason to differ with the report of Medical Board that had physically examined the petitioner. Learned counsel for the respondents has vehemently contended that the Rules make it evident that Medical Advisor to PCDA(P) is the authority to take final decision. The action of discontinuing the payment of disability pension in between the year 1995 to 2005 cannot be termed as without jurisdiction and therefore, no interference in writ jurisdiction is called for. In this regard, reference has been made to Annexure R/5. I have considered the contentions of learned counsel and have gone through the documents. The facts have been noticed. The same need not be repeated. Annexure R/5 dated 26.1.2006 reads as under:- “1. Refer to (a) This office letter No. 4453116/RA/Pen dated 20 Feb 1997. (b) Your petition dated 15 Dec 2005. 2. The award of temporary disability pension granted to you vide PCDA (P) Allahabad PPO No. D/3594/88 has been discontinued wef 07 May 1995 by the MAP (Allahabad) as well as First Appellate Committee New Delhi vide their letter No.7(561)/96/D (Pen A & AC) dated 30 Dec 1996 and intimation of such rejection was communicated to you vide this office letter No.4453116/RA/Pen dated 20 Feb 1997. Hence, you are not entitled to get re-assessment of CWP No.1918 of 2007 [6] disability pension for the period from 06 May 1995 to 03 Feb 2005.” Other than the document Annexure R/5, no material has been placed before this Court for its consideration to justify the action of the respondents in not allowing disability element of pension to the petitioner from 19.6.1995 to 3.2.2005. I do not find any material to indicate that the petitioner had even been examined by the Medical Board and thereafter, his case was reviewed denying the disability pension to the petitioner after 19.6.1995. No reasons have been assigned although from 1990 to 1995, disability pension was granted to the petitioner. The respondents were required to assign reasons based on medical assessment of the petitioner. In view of the said facts, the case of the petitioner is clearly covered by the judgment rendered in Ex Sapper Mohinder Singh’s case (supra). Ex Sapper Mohinder Singh’s case was relied on while dealing with the case of Ex Recruit Jagjit Singh (supra). The following needs to be extracted from the judgment in Ex Recruit Jagjit Singh (supra):- “Having heard the learned counsel for the parties at a considerable length and after perusing the documents placed on record, I am of the view that the short issue involved in both the petitioner (SIC) is that whether the CCDA or PCDA could sit in judgment over the opinion of the experts in medical line. It is admitted position that the disability of the petitioner in both petitions was certified to be 20% by the Re-Survey Medical Board. However, the PCDA has rejected the disability pension by assessing the invalid disability at less than 20%. The aforesaid CWP No.1918 of 2007 [7] mentioned issue is squarely covered by the judgment of the Hon’ble Supreme Court in the case of Ex. Spper Mohinder Singh v. Union of India (Civil Appeal No.164 of 1993 decided on 14.1.1993, wherein it has been held as under:- “From the above narrated fact and the stand taken by the parties before us, the controversy that falls for determination by us is in a very narrow compass viz. Whether the Chief Controller of Defence Accounts (Pension) has any jurisdiction to sit over the opinion of the experts (Medical Board) while dealing with the case of grant of disability pension, in regard to the percentage of the disability pension, or not. In the present case, it is nowhere stated that the petitioner was subjected to any higher Medical Board before the Chief Controller of Defence Accounts (Pensions) decided to decline the disability pension to the petitioner. We are unable to see as to how the accounts branch dealing with the pension can sit over the judgment of the experts in the medical line without making any reference to a detailed or higher medical Board which can be constituted under the relevant instructions and rules by the Director General of Army Medical Core.” The aforementioned view has been followed by Division Benches of this Court in the case of Satpal Singh Vs. Union of India and others (CWP No.15445 of 2003, decided on 26.09.2005); Ex-Sapper Ujaggar Singh Vs. Union of India and others (CWP No.17688 of 1996, decided on 9.10.1997) and in a recent judgment in the case of Ex-Subedar Jasmail Singh Vs Union of India and others 2006(2) Law Herald 1480. I, respectfully follow the view taken by the Hon’ble Supreme Court as well as this Court and hold that the CCDA/PCDA cannot sit in judgment over the opinion expressed by Re-Survey Medical Board. Accordingly, applying the principle laid down by the aforementioned judgments, these petitions deserve to be allowed. During the course of arguments, learned counsel for the respondents have raised the issue of delay in filing petitions after a long gap of 40 years. This argument is not tenable in as much as. It is a settled position of law that the right to receive pension of any kind is a recurring cause of action and it accrues every month. In this regard, the judgments relied upon by the learned counsel for the petitioner, as detailed in the earlier part of the judgment are fully applicable in the instant petitions. In view of the above, both the writ petitions are allowed. A direction is issued to the respondents to assess the disability pension of the petitioner in each case by keeping in view that they had suffered 20% disability for life, which is referable to service, with effect from the dates of their disability pension has been discontinued. It shall include both disability element and service element of pension. However, the arrears are confined to 38 months preceding the date of filing of petitions, which are CWP No.1918 of 2007 [8] 24.01.2002 (CWP No.1687 of 2002) and 29.01.2002 (CWP No.1906 of 2002). The arrears shall be paid within a period of two months from today. The petitioners in both cases shall continue to get the disability pension for life.” Collective consideration of the facts shows that on the basis of examination by Medical Board, the petitioner was allowed disability pension w.e.f. 31.8.1990 till 19.6.1995. The disability element of pension was however discontinued thereafter on the directions of PCDA(P) although the payment had been recommended by a Medical Board that had examined the petitioner. The reasons for differing with the findings of Medical Board were required to be given. None has however been given. It was incumbent for a higher Medical Board to examine the petitioner to over-rule the findings of the Medical Board that had recommended payment of disability pension. Further no plausible reasons have been assigned by respondents for not giving disability pension w.e.f. 19.6.1995 till 3.2.2005 although it is the admitted case of the respondents that the petitioner was entitled to disability pension with effect from the date of his discharge on 31.8.1990 when he was invalided out, till 19.6.1995 and thereafter, after 3.2.2005. In view of the above, the case of the petitioner is covered by Ex Sapper Mohinder Singh’s case (supra) and Ex Recruit Jagjit Singh’s case (supra). The petition is allowed. The arrears of pension for the period CWP No.1918 of 2007 [9] 19.6.1995 to 3.2.2005 would be released in favour of the petitioner within four months of receipt of a copy of this order. No order as to costs. (AJAI LAMBA) February 25, 2009 JUDGE avin