IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 515/2008 Reserved on:17.9.2008 Decided on:26.9.2008 Himal Singh. …Petitioner. Versus Union of India and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. A.K. Vashisth, Advocate. For the Respondents : Ms. Shilpa Sood, Central Government Counsel. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that the petitioner was enrolled with the Punjab Regiment on 13th November, 1962 and transferred to pension establishment with effect from 13th November, 1990 while holding substantive rank of Subedar. He had rendered 28 years and 18 days qualifying service for which he was sanctioned service pension @ Rs.1250/- per month with effect from 10.12.1990. He got himself enrolled in the Defence Security Corps (DSC) on 14th September, 1992 in the rank of Subedar. He was discharged from 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 the Defence Security Corps with effect from 30th November, 2001 (afternoon) under rule 13 (3) Item III (i) of the Army Rules, 1954 on attaining the age of superannuation. He had rendered 9 years and 79 days qualifying service with the Defence Security Corps and was paid a sum of Rs. 88,614/- towards service gratuity. He was placed in low medical category SI HI AI P3 (T-24) EI with effect from 21.1.2001 due to Primary hypertension and obesity. He was brought before the duly constituted Release Medical Board on 22.10.2001 at Military Hospital, Jallandhar to assess his medical condition before discharge from service on attaining the age of superannuation. The opinion of the Release Medical Board was that the petitioner had suffered disability to the extent of 30% on account of hypertension, which was though not attributable to military service but was aggravated by and it was connected with military service. The other ailment i.e. obesity was neither attributable to nor aggravated by military service and not connected with the military service. His case was initiated by the Defence Security Corps Record Office for disability pension and the same was submitted to the competent Pension Sanctioning Authority, i.e. Principal Controller Defence Accounts (Pension), Allahabad vide letter dated 2.3.2002. The claim of the petitioner was adjudicated by the Principal Controller Defence Accounts (Pension), Allahabad in consultation with the Medical Advisor (Pension). The same was rejected on 26th June, 2002 on the ground that the disability of the petitioner was neither attributable to nor aggravated by military service and hence no pension was admissible under the rules (Annexure R-6). This fact was communicated to the petitioner on 23rd August, 2002. He preferred an appeal on 1.10.2002 to the Appellate Committee. The same was rejected on 23.7.2003 stating that both the disabilities, i.e. hyper tension was a constitutional disorder and the disability obesity was due to 3 the individual’s negligence and hence the same are neither attributable to nor aggravated by military service. He preferred a second appeal on 15.9.2003. The same was considered by the Appellate Committee and was rejected on 16.8.2005. The case set out by the petitioner is that since the petitioner had suffered disability @ 30%, he was entitled to get the disability pension under Regulation 173 of Pension Regulations for the Army, 1961 (Part-I). The principal stand of the respondents is that since the case of the petitioner has been rejected by the Principal Controller Defence Accounts (Pension), Allahbad exercising the powers delegated vide Annexure R-5, hence, he is not entitled to disability pension. The other averment contained in the reply is that as per letter dated 20th June, 1996 the disease must arise during the period of military service and the disease has been caused by the conditions of employment in military service. Mr. A.K. Vashista learned counsel appearing for the petitioner has strenuously argued that the case of the petitioner is squarely covered under Regulation 173 of Pension Regulations for the Army, 1961 (Part-I). His further case is that it was for the Discharge Medical Board to assess the disability of his client and the Principal Controller Defence Accounts (Pension), Allahabad has no expertise to assess and go into the vital aspect whether the disease is attributable to or aggravated by the military service. In other words his contention is that Principal Controller Defence Accounts (Pension), Allahabad cannot be entrusted with the duties of assessing the attribution or aggravation of the disease only on the basis of Annexure R-5. Ms. Shilpa Sood, Central Government Counsel has supported the decision dated 23.8.2002, 23.7.2003 and dated 16.8.2005 passed by the respondents. 4 I have heard the learned counsel for the parties and perused the record carefully. It is not disputed by the parties that the petitioner had rendered 28 years and 18 days qualifying service and he was sanctioned service pension @ 1250/- per month with effect from 10.12.1990. He was enrolled in Defence Security Corps on 14.9.1992 and he rendered 9 years and 78 days qualifying service with the Defence Security Corps. He was placed in low medical category SI HI AI P3 (T-24) EI with effect from 21.7.2001. His disability has been assessed at 30% for hyper tension which though was not attributable to the military service, however, it was aggravated by and connected with the military service. Column 3 (c) of Annexure R-2 specifically mentions that hyper tension was caused due to stress and strain of the military service. It has also come in sub-column (ii) of column (c) that the effect of such aggravation was persisting at the time of medical report. The petitioner had contacted this disease while he was in the military service. It has come in Annexure R-2, as noticed above, that it was due to stress and strains of military service. Thus, the case of the petitioner is squarely covered under corrigendum (Annexure R-4). The next important question which required to be considered by the Court is that who is the competent authority to assess the disability of the person to enable him to get the disability assessed? In the present case the disability of the petitioner after his examination has been assessed by the Release Medical Board (Annexure R-2). His case was recommended for disability pension by the competent authority. However, it is the Principal Controller Defence Accounts (Pension), Allahabad, who has turned down the case of the petitioner in a most arbitrary manner on 26.6.2002. The Release Medical Board is the expert body to assess the 5 disability. The petitioner had appeared before this Release Medical Board. Strangely, the Principal Controller Defence Accounts (Pension), Allahabad had come to a conclusion that the disability of the petitioner was neither attributable to nor aggravated by military service. This finding recorded by the Principal Controller Defence Accounts (Pension), Allahabad is contrary to Annexure R-2. This opinion could not be rendered in any circumstance by the Principal Controller Defence Accounts (Pension), Allahabad without examining the petitioner. The illegality which has been committed by the Principal Controller Defence Accounts (Pension), Allahabad has been repeated in the appellate order dated 23.7.2003 and at the time when the second appeal was rejected on 16.8.2005. The orders dated 23.7.2003 and 16.8.2005 are also contrary to Annexure R-2. Ms. Shilpa Sood has strenuously argued that the Principal Controller Defence Accounts (Pension), Allahabad has been delegated the necessary powers vide Annexure R-5 to see whether or not injury is attributable to or aggravated by military service and pension was admissible under the rules. She further contended that the Medical Boards and Military Authorities only assist the pension sanctioning authority and no case is to be considered either attributable to or aggravated by military service until it has been so decided by the Government of India or its delegated authority and once it has come to the conclusion that the disease was neither attributable to nor aggravated by the military service, the case of the petitioner has rightly been rejected. There is no merit in this submission. The Principal Controller Defence Accounts (Pension), Allahabad is not an expert body. The opinion of the Release Medical Board must be given primacy over the opinion of the Principal Controller Defence Accounts (Pension), Allahabad. The 6 petitioner has contacted this primary hyper tension while he was in military service and it has been aggravated by the stress and strains of the military service. His disability has been assessed at 30%. The minimum disability for getting the pension is only 20% as per Regulations 173 of the Pension Regulations for the Army, 1961 (Part-I). The learned Single Judge of Punjab and Haryana High Court in Amar Nath versus Union of India and others, 1998 (1) PLR-847 has held that in no way the Controller of Defence Accounts (P) could be considered to be an appellate authority on the finding of the medical board. The learned Single Judge has held as under: “In this regard reference can be made to the judgment of a Division bench of this Court rendered in C.W.P. No. 17688 of 1996 Ex-Sepoy Ujagar Singh v. Union of India and others, (Decided on 9.10.1997) : 1997(4) R.S.T. 587 where this Court in somewhat .similar circumstances, after discussing in detail the matter governing the subject held as under: "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 and comment upon the extent of disability 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." Somewhat similar defence was raised on behalf of the Union of India before the Hon'ble Apex Court in the case of Ex-Sepoy Mohinder Singh v. Union of India, Civil Appeal No. 164 of 1993 decided on 14th January, 1993, where the Court held as under: "We have examined the relevant materials and we do not feel satisfied with the plea taken in the counter affidavit. No details of the consultation have been disclosed by the respondent nor it is claimed that the Appellant has been re-examined by any higher medical authority. We 7 are not prepared to set on the vague allegations in the counter affidavit referred to above. 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 examined the appellant again-and reached different conclusion." An identica1 stand was taken by the Union of India in the case of Mam Raj v. Union of India, C.W.P. No. 2302 of 1997 decided on 10.9.1997 by this Court where this Court held as under: "Instructions No.27 under the head of "functions and responsibilities" of Appendix-II of these instructions at best empowers the Medical Authority so constituted to give its view about assessment of disablement restricted to the medical issues. The Medical Board (s) views and findings could be subjected to an appellate view by the Director General, Armed Forces Medical Services whose view would be final. Nothing has been brought on record before us which would show that subsequent to the Medical Board, as a result of which the petitioner was discharged from Army, was held by the competent authority and that gave any findings contrary to the view expressed by the earlier Medical Board." Reference can also be made to the decision rendered in LP A No.82 of 1997 titled as Union of India and others v. Ex. Captain Harbhajan Singh, decided on 25.4.1997. In the present writ petition, no details have stated in the counter affidavit filed on behalf of the Union of India nor any documents has been produced before us which could satisfy the above enunciated principles. It has also been held that pension and likewise the disability pension is recurring cause of action and mere delay will not frustrate the claim of the petitioner." Learned counsel for the appellant has also relied upon the case of Ram Singh Jaggi v. Union of India and 8 others, 1995(4) RS.J. 807, where a Division Bench of the Himachal Pradesh High Court took the same view. From the above settled principles of law, I have no hesitation in coming to the conclusion that the learned courts below have fallen in error in coming to the conclusion that the Controller of Defence Accounts (P), Allahabad can disturb the finding of the medical board in the present manner. Admittedly no evidence has been brought on record much less an expert evidence recorded by the medical officer to show that the findings recorded by the medical board were incorrect factually or otherwise. Moreover, from the record, which, has been produced by the learned counsel for the parties, I find that a specific ground was raised before the learned first Appellate Authority that Controller of Defence Accounts (P), Allahabad had no authority to express view contrary to the medical board. This contention has not been properly dealt with by the learned first Appellate Court. Keeping in view the instructions aforestated there is no escape from setting aside the contents of exhibit I D.3 being against-the rule and settled law. Reliance placed by the learned courts below on exhibit D.3 is not well founded. Exhibit D.3 is a letter written by the Accounts Officer, Pension, Allahabad, who in no way could be considered to be an appellate authority on the finding of the medical board. The relevant rules postulates re-survey by medical board after a given period which can increase or decrease the disability of a person who has been discharged from armed forces on re-assessment. This position of law is not even disputed by the learned counsel for the parties. In any case the aforestated judgments of the Division Bench are binding on this bench. In view of the above reasons, I accept the appeal and set aside the judgments and decree passed by the learned courts below. Further a decree for mandatory injunction is granted in favour of the plaintiff-appellant 9 against the defendants-respondents directing the defendants to pay disability pension to the appellant with effect from 25.6.1988 in accordance with rules.” Consequently, in view of the observations made hereinabove and the law discussed it is declared that the petitioner contacted the disease during his military service and it aggravated due to the stress and strains of the military service. Accordingly, the writ petition is allowed. Annexure P-2 dated 23.8.2002, Annexure P-4 dated 23.7.2003 and letter Annexure R-7 dated 16.8.2005 are quashed and set aside. The respondents are directed to pay the disability pension to the petitioner with effect from 30.11.2001 with interest @ 9% per annum in accordance with the Rules. The case of the petitioner shall be finalized within 10 weeks from today. There shall be no order as to costs. 26.9. 2008 (Rajiv Sharma ), J. *awasthi*