SBCWP No.4268/02. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.4268/2002. Murlidhar Jat Vs. Union of India & Ors. Date of Order:- February 6, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Omprakash Sheoran for the petitioner. Shri Sanjay Pareek for Union of India. ****** Reportable BY THE COURT:- Petitioner has filed this writ petition aggrieved by discontinuation of payment of pension to him w.e.f. 31/8/1996 and with the further prayer that respondents be directed to grant him disability pension from the said date with arrears on the ground that his disablement was assessed at less than 20% i.e. 11-14% for five years. 2) Shri Omprakash Sheoran, learned counsel for the petitioner has argued that petitioner was enrolled in the Indian Army (Army Medical Corps) on 28/9/1965 and was discharged on medical grounds in lower Medical Category (CEE Permanent) on 28/6/1982 after serving the respondents for more than 17 SBCWP No.4268/02. 2 years. Petitioner while serving the respondents suffered from a disease namely; ID- Back Ache with Sciatic Syndrome (Right) . Petitioner acquired this disease due to the conditions of service and stress, which was assessed by the medical board as “attributable to and/or aggravated by Military service” more than 20%. Petitioner was sanctioned and granted disability pension apart from service pension at the time of discharge on 28/6/1982. He was periodically brought before the medical board and continued to get his disability pension. Third medical review board held in the year 1996 at Military Hospital, Jaipur assessed the disability of the petitioner at 20% and attributable it to military service. Said recommendation however was over-ruled by the Chief Controller of Defence Accounts (Pension) who accepted disability of the petitioner only as 11-14% and accordingly payment of disability pension was discontinued to the petitioner w.e.f. 31/8/1986. Dissatisfied with the decision of the CCDA (P) Allahabad, petitioner filed an appeal before the Government of India, Ministry of Defence on the premise that extent of disability as opined by medical board could not be reduced prejudicially to the petitioner by PCDA(P) Allahabad without referring the petitioner to the SBCWP No.4268/02. 3 higher medical board/authority. Appeal however was dismissed by the Government of India vide order dated 30/4/1997. Learned counsel submitted that petitioner was again brought before the medical board on 14/7/2001 and this time, the medical board assessed his disability at less than 20% (11-14%) in view of decision of CCDA (Pension) for life. It was so conveyed to the petitioner by Records, Army Medical Corps vide order dated 30/10/2001. Petitioner preferred appeal thereagainst before the Government of India Ministry of Defence. Respondents have now brought on record of this writ petition, his disability certificate. Petitioner's appeal was placed before the appellate committee i.e. PCDA(P) Allahabad, who in turn forwarded the same to the Government of India, Ministry of Defence, New Delhi where, it is pending adjudication. The case of the petitioner was reviewed by the Review Medical Board on 14/7/2001 which assessed his disability at less than 20% i.e. 11 to 14% for life. The claim was adjudicated by PCDA(P) Allahabad which assessed the disability of the petitioner at less than 20% for life w.e.f. 26/7/2001. His appeal against fresh assessment made by Last Review Medical Board was allowed by Appellate Committee of the Central Government, vide SBCWP No.4268/02. 4 its order dated 14/7/2001 which again held him disability at 20% for life. Petitioner has been accordingly issued fresh Pension Payment Order (PPO). Writ petition therefore survives only in regard to discontinuation of disability pension to the petitioner for the period intervening between 31/8/1996 to 25/7/2001. 3) Shri Omprakash Sheoran, learned counsel for the petitioner has relying on the judgment of Supreme Court in Ex.Sapper Mohinder Singh vs. U.O.I., Civil Appeal No.164/1993 decided on January 14, 1993 argued that in that case it was held by their Lordships that that disability assessed at 20% by the medical board which had personally examined the petitioner, could not be reduced by Pension Payment Authority and payment of disability pension could be discontinued only if fresh medical board examined the army man concerned again. Citing from judgment of Punjab and Haryana High court in Nachhattar Singh Vs. Union of India and others : 1999(2) SLR 691, learned counsel argued that in that case also Accounts Branch of PCDA at Allahabad without referring the service man to Higher Medical Board reduced the extent of his disability at 11% to 14% for which reason disability pension was declined. It was held by the SBCWP No.4268/02. 5 High Court that Accounts Branch Allahabad cannot sit over the judgment of the Medical Board and reduce the extent of disability. Learned counsel also relied on the judgments of this Court in Brigadier (Retd.) V.K. Sarda, Vr.C. Vs. Union of India & Ors. (SBCWP No.4033/2002) decided on 7/8/2008, Ved Prakash Chawla Vs. Union of India- (1996) 1 SCT 359 and Ram Kumar Singh Vs. UOI & Ors., S.B. Civil Writ Petition No.4904/97 decided on 23/3/1999 in which cases also, this Court relying on the judgment of Ex-Sapper Mahendra Singh supra held that Appellate Medical Authority, which had never examined the petitioner in person, could not mechanically reverse the view taken by the Medical Board which had the occasion to personally examine serviceman and also appreciating the nature of his duties. 4) Learned counsel for the petitioner therefore prayed that writ petition be allowed and the petitioner be held entitled for disability pension for the intervening period of five years. 5) Shri Sanjay Pareek, learned counsel appearing for Union of India opposed the writ petition and submitted that as per Rule 17 of the Entitlement Rules, 1982, the medical board can give findings and recommendation on entitlement and SBCWP No.4268/02. 6 assessment in all disabilities but they are not statutory bodies and their recommendations can be reviewed/revised by the Competent Medical Authority. 6) Learned counsel for Union of India referred to the instruction of the Government of India, Ministry of Defence dated 21/6/1996 in this behalf and submitted that the Medical Advisor of Pension attached to the office of the PCDA(P) Allahabad is appointed by the Directorate General Armed forced Medical Services under Entitlement Rules, 1982, who is of the rank of Joint Director, Armed Forces Medical Services. He is the competent Medical Authority. He can review/revise the recommendations and assessment of the medical board under Rule 17(b) of the said rules. Learned counsel therefore submitted that payment of disability pension was rightly discontinued w.e.f. 31/8/1996 to 25/7/2001. It was argued that even if the third review medical board at Military Hospital, Jaipur assessed the disability of the petitioner at 20% and held the same attributable to military service, its opinion could be varied/reversed by the Medical Advisor supra on examination of the relevant medical record of the petitioner. There was no need for him to have personally examined the petitioner. SBCWP No.4268/02. 7 It is submitted that now in any case disability Pension of the petitioner has been restored for life pursuant to the decision of the appellate authority. Since the petitioner has not challenged the order dated 30/10/2001 passed by the PCDA Allahabad, this court cannot in the present writ petition examine legality of discontinuation of the disability Pension for a period of five years. 7) I have given my anxious consideration to the rival submissions, scanned the material on record and studied the cited case law on the subject. 8) Facts narrated hereinabove clearly show that ever since petitioner was discharged from service w.e.f. 28/6/1982 in lower Medical Category (CEE Permanent), he was getting disability pension which he continued to receive regularly till it was stopped on 31/8/1996 and that was not because of the Re-Survey Third Medical Board Jaipur assessed the disability at less than 20% but because of the opinion of Medical Advisor of the PCDA Allahabad, who did not accept the opinion of the Re-Survey Third Medical Board Jaipur and next time when petitioner was again brought before the Board, his disability was assessed at 20% but disability of the petitioner was accepted by PCDA Allahabad at SBCWP No.4268/02. 8 only 11% to 14% for five years. When petitioner was again brought before the medical board on 14/7/2001, this time, the medical board assessed his disability at less than 20% (11-14%) adopting decision of PCDA (Allahabad) for life. This time again petitioner filed appeal against such decision before the Government of India. Now, the respondents have taken a stand before this court that kind of disease with which petitioner was suffering was ID- Back Ache with Sciatic Syndrome (Right) and therefore on account of good treatment available, his disability was reduced. But it has not been explained why it was assessed only at 11% to 14% for five years. Subsequent events have proved that appellate committee upon consideration of appeal of the petitioner in the light of the relevant administrative provisions vide its decision dated 14/7/2001 held that ID- Back Ache with Sciatic Syndrome (Right) should be 20% for life and not judged at 11% to 14%. It was conveyed to the petitioner by Records, Army Medical Corps vide order dated 30/10/2001. Obviously, decision of the Government of India must prevail over the decision of the PCDA or for that matter, its Medical Advisor. But the respondents would argue that this decision would cover only such period SBCWP No.4268/02. 9 which fall beyond 25/7/2001 and not the period from 31/8/1996 to 25/7/2001. This shall have to be however viewed in the light of the fact that ever since petitioner was discharged on medical ground on 28/6/1982, he uninterruptedly continued to receive disability Pension till it was stopped on 31/8/1996. That was based on medical examination of the petitioner by the members of the medical board from time to time assessing his disability at 20% and attributable to military service. Contention of the respondents fail to appeal to the reason when for earlier period of 14 years and subsequently, for rest of his life, disability of ID- Back Ache with Sciatic Syndrome (Right) of the petitioner has been assessed at 20% by different authorities of the respondents, how and why, in between for five years only, it was reduced to 11% to 14%, particularly when the Government of India or its appellate committee did not agree with the reversal of the view by the Medical Advisor to PCDA. Supreme Court and this Court in number of judgments referred to supra, have been consistently maintaining that the opinion of the medical board on the extent or disability and attributability aspect should be respected and that its opinion should not be lightly interfered with by this court SBCWP No.4268/02. 10 whenever claims relating to disability pension are brought before it. 9) Even according to Rule 423 of the Regulation for the Medical Services of the Armed Forces, 1962, opinion of the medical board has to be regarded as final. It is because the medical board personally examines the individual and gives its opinion on two factors; (1) kind of disease and (2) the factors which contributed to its aggravation. The co-ordinate Bench of this Court in Ram Kumar Singh supra while following the judgment of Supreme Court in Ex.Sapper Mohinder Singh supra, held that 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.” 10) In Nachhattar Singh supra, the Punjab and Haryana High Court was dealing with the case where in somewhat similar circumstances, PCDA(P) SBCWP No.4268/02. 11 Allahabad disallowed the claim of disability pension while reversing the view taken by the Re- Survey Medical Board. In that case too, Medical Board had assessed the disability of the individual at 20% but the Medical Advisor (Pension) opined that his disability should be reduced to 11% to 14% and therefore it was less than 20% and that assessment was made for a period of five years. It was held that Accounts Branch of PCDA Allahabad cannot sit over the judgment of the Medical Board and reduce the extent of disability. 11) Similarly, Division Bench of Punjab & Haryana High Court in Ujagar Singh Vs. Union of India : 1997(4) RSJ 587 on the same controversy held as under:- “From the above narrated facts and the stand taken by the parties before us, the controversy that falls for determination by us is 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, is nowhere stated that the petitioner was subjected to any higher medical board before the Chief Controller of Defence Accounts (Pension) 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 and comment upon the extent of disability without making any reference to a SBCWP No.4268/02. 12 detailed or higher medical board which can be constituted under the relevant instructions and rules by the Director General of Army Medical Core.” 12) Relying on judgment of Supreme Court, this Court in Brigadier (Retd.) V.K. Sarda, Vr.C. Supra, I while deciding a similar claim had to observe thus:- “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 SBCWP No.4268/02. 13 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.” 13) Discussion on the subject as aforementioned clearly show that when an individual is examined by the medical board, its opinion has to be given utmost respect and the medical board which had first hand examined the serviceman, its opinion should not be lightly interfered with. If what is submitted by the respondents is accepted, that the view taken by the medical board on re- examination by the Medical Advisor (Pension) to PCDA(P) Allahabad on the basis of the laid down parameters may not accepted as final, there is every likelihood of of arbitrariness being introduced in the ultimate opinion that he may have to express varying/reversing opinion of the medical board. This should be done only if medical opinion about physical health of an individual is expressed after he has been personally subjected to examination by a multi member body of experts, like another medical board. What has already been expressed by medical board on the basis of physical examination of individual cannot be mechanically SBCWP No.4268/02. 14 reversed by an superior medical authority may be Medical Advisor on the basis of records only. While in the case of medical board, opinion expressed is based on objective examination of state of health of individual, but opinion of reversal expressed by Medical Advisor alone without having the opportunity of examining the individual would be simply subjective opinion because its conclusions are drawn on the basis of pre-recorded observations from available record and not based on personal examination. Such authority is most likely to falter in expressing its opinion. 14) In the result, this writ petition is allowed. Action of the respondents in discontinuing disability pension of the petitioner for five years w.e.f. 31/8/1996 to 25/7/2001 is held to be arbitrary and illegal. Petitioner is held entitled to receive disability pension for the said period of five years together with @6% p.a. There shall be however no order as to costs. Compliance of the judgment shall be made within a period of three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ) J. anil