IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 WA.No. 2767 of 2007 -------------------------- AGAINST THE JUDGEMENT IN WPC.4022/2005 Dated 16/06/2006 .................... APPELLANT/PETITIONER IN WPC: ----------------------------------------- A.SALAHUDDIN, AGED 52 YEARS, S/O.ABDUL KHADER, AYANIMOODU HOUSE, IRINCHAYAM P.O., NEDUMANGAD. BY ADV. SRI.B.HARISH KUMAR RESPONDENTS/RESPONDENTS IN WPC: ----------------------------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY (DEFENCE), NEW DELHI. 2. DEFENCE SECRETARY, CENTRAL SECRETARIAT, NEW DELHI. 3. THE OFFICER-IN-CHARGE, RECORDS SIGNALS, JABALPUR. 4. DIRECTOR GENERAL, CONTROLLER OF DEFENCE ACCOUNTS, (PENSION), ALLAHABAD, U.P. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GOVERNMENT PLEADER SRI. BENNY GERVASIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & P.N.RAVINDRAN, JJ. ------------------------------------------ Writ Appeal No.2767 OF 2007 ------------------------------------------ Dated this the 1st day of January, 2009. J U D G M E N T Kurian Joseph, J. The appellant is the petitioner in O.P.No.31055/2000. He joined Army as a Signalman on 31.03.1974. He was invalidated on account of Neurosis 300 on 18.04.1979. The petitioner approached this Court since he was denied disability pension. The writ petition was disposed of by Exhibit P2 judgment dated 17.06.2003 with a direction to competent authority to reconsider the case of the petitioner in the light of the Full Bench decision of this Court in Baby vs. Union of India reported in 2003(3) KLT 362 (O.P.No.24762/1999). 2. The petitioner was given Exhibit P6 communication dated 31.12.2003 to the effect that his disability was reassessed as 'Nil' for life by the re-survey medical board held on 01.11.2002. Subsequently, as per Exhibit P7 communication W.A No.2767/07 2 dated 07.06.2004, it was informed that “............the competent authority has reconsidered the matter regarding grant of disability pension to No 14222721 Ex Sigmn A Salahudeen and has decided that the ID “NEUROSIS” of the petitioner be regarded as aggravated by military service with degree of disablement at 20% for life wef 19 Apr 1979. Necessary PPO notifying the disability pension @ 20% p.m for life be issued immediately”. 3. According to the petitioner, the disability is much more. While issuing Exhibits P6 and P7, the petitioner was not examined by the Medical Board. He filed Writ Petition (C) No.4022/2005. This Court dismissed the writ petition holding that in case there is higher degree of disability, the pension cannot be increased. The petitioner filed a review petition as R.P.No.649/2006. This Court in the order dated 18.06.2007 held that “.......Though the subsequent increase in the disability can be taken note of, for grant of pension, at present, he is not suffering any disability. It is a finding of fact by the competent authority. Accordingly, the RP is dismissed”. Aggrieved, the petitioner has filed the present writ appeal. W.A No.2767/07 3 4. The main contention taken by the counsel for the appellant-petitioner is that without physical examination of the appellant by the competent Medical Board, the present disability cannot be assessed. In the statement dated 16.03.2007 filed by the respondents as directed by this Court it is submitted that “..........the present disability of the petitioner was not considered while issuing Exhibit P7.........”. Since the present disability has to be assessed by the Medical Board, necessarily, the appellant- petitioner will have to be subjected to a physical examination by the Medical Board. We are also persuaded to take the said view in view of the Bench decision of the High Court of Himachal Pradesh in Devi Saran Sharma vs. Union of India (MLJ 1997 HP 2) wherein it has been held that the disability pension has to be proportionate to the disability subsequent and consequent to the invalidation. Accordingly, we set aside the judgment under appeal. The writ appeal is disposed of directing the competent authority to subject the appellant-petitioner to physical examination by the Medical Board to be constituted at Thiruvananthapuram. We make it clear that the present physical condition of the appellant- W.A No.2767/07 4 petitioner shall be assessed by the Medical Board. If it is found that the percentage of disability has increased affecting also other faculties of the appellant-petitioner, the percentage of disability pension also has to be proportionately increased. The needful as above shall be done within a period of three months from the date of receipt/production of a copy of this judgment. KURIAN JOSEPH JUDGE P.N.RAVINDRAN JUDGE smp W.A No.2767/07 5 KURIAN JOSEPH & P.N.RAVINDRAN, JJ. W.A. No. 2767 OF 2007 J U D G M E N T 01.01.2009