IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 OP.No. 3842 of 2003(G) -------------------------------- PETITIONER: ------------------- P. SAHADSEVAN, DEV NIVAS, CLAPPANA P.O., KARUNAGAPPALLY, KOLLAM. BY ADV. MR.P.B.SURESH KUMAR. RESPONDENTS: ------------------------ 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, CENTRAL SECRETARIAT, NEW DELHI. 2. THE CONTROLLER OF DEFENCE ACCOUNTS, PENSIONS (C.D.A. & (P)), ALLAHABAD. 3. THE COMMANDING OFFICER, THE VAYU RAKSHA TOPKHANA ABILEKH, AIR DEFENCE ARTILLERY RECORDS, NAZIK ROAD CAMP-422 102. 4. ASSISTANT RECORDS OFFICER, THE VAYU RAKSHA TOPKHANA ABILEKH, AIR DEFENCE ARTILLERY RECORDS, NAZIK ROAD CAMP-422 102. BY MR. T.P.M. IBRAHIM KHAN, A.S.G., MR.TOJAN J.VATHIKULAM, ADDL.CGSC. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 30/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 3842/2003-G: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SUMMARY AND OPINION OF THE CONDITION OF THE PETITIONER ASSESSED BY THE ARMY DOCTOR DTD. 19/07/1996. EXT.P.2: COPY OF THE RELEVANT PORTION OF THE OPINION OF THE MEDICAL BOARD DTD. 20/07/1996. EXT.P.3: COPY OF THE OPINION ISSUED BY THE DOCTOR ATTACHED TO THE OFFICE OF THE R.3. DTD. 23/08/1997. EXT.P.4: COPY OF THE MEDICAL OPINION GIVEN BY THE MILITARY DOCTOR AT THE TIME WHEN THE PETITIONER WAS DISCHARGED DTD. 07/01/1999. EXT.P.5: COPY OF THE COMMUNICATION ISSUED BY THE R.4. TO THE PETITIONER DTD. 01/03/2000. EXT.P.6: COPY OF THE MEMORANDUM OF APPEAL SUBMITTED BY THE PETITIONER BEFORE THE R.1. DTD. 15/05/2000. EXT.P.7: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN O.P. NO. 18265/2000 DTD. 30/06/2000. EXT.P.8: COPY OF THE ORDER PASSED BY THE R.1. ON EXT.P.6 APPEAL DTD. 02/05/2001. RESPONDENTS' EXHIBITS: EXT.R1: COPY OF THE OPINION OF THE RELEASING MEDICAL BOARD DTD. 11/01/1999. EXT.R2: COPY OF THE RULE 173 OF THE REGULATIONS FOR ARMY 1961. EXT.R3: COPY OF THE LETTER NO. G-3/73/340/11/94 DTD. 22/02/2000 OF THE PCDA (P) ALLAHABAD. EXT.R4: COPY OF THE DISABILITY PENSION FIRST OPENING CLAIM SHEET. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC, J. -------------------------------------------------- O.P.NO.3842 OF 2003(G) -------------------------------------------------- Dated this the 30th day of October, 2009 J U D G M E N T Petitioner was recruited as an Opertor(Radio) in Indian Army on 10.8.1971. During his service he was posted at different places. It is stated that during 1996, he was suffered a disability namely `Essential Hypertension' and Ext.P1 is the summary and opinion given by a Senior Advisor (Medicine) in Army. 2. Thereafter the petitioner was subjected to medical examination and Ext.P2 is a report where it is stated that the disability was contracted while in service and that it is not directly attributable to the military service. It is also stated that it was aggravated for reasons which are directly attributable to service. The disability of petitioner was assessed at 40% and he was included in Medical Category 'B' temporarily. 3. According to the petitioner, even thereafter, there was no improvement in his health condition and subsequently on 23.8.1997, he was permanently included in the medical category 'B' and Ext.P3 is the opinion issued by the Doctor. It is stated that for these reasons he had to retire from service on 1.9.1999. O.P.No.3842/03 :2 : Ext.P4 is the medical opinion given at the time of his discharge from service. Subsequently petitioner claimed disability pension before the 3rd respondent, which was forwarded to the 2nd respondent. However, by Ext.P5, his claim was rejected for the reason that his disability was neither attributable to nor aggravated by the military service. it is also stated that the disability was constitutional in nature and that it was assessed at less that 20%. Petitioner pursued the matter by filing an appeal before the first respondent. Finally, the first respondent also issued Ext.P8 rejecting the appeal. 4. The reasons stated in Ext.P8 are as follows; “3. Now on review, the appellant Medical Authority in exercise of the powers conferred upon him vide Rule 17 and 27(c) of the Entitlement Rule for casualty Pensionary Awards, 1982, has also upheld that your ID is neither attributable to nor aggravated by military service. On perusal of your service/medical documents, it has been found that onset of ID was in July, 1996 in peace area. You had no field/High Altitude Area Service in closetime relation with the onset of ID. There was no service related undue stress/strain to the onset of ID. In view of the fact that your ID has been regarded by the Medical Authority as neither attributable to nor aggravated by duties of Military service, you are not entitled to disability pension under the rules. O.P.No.3842/03 :3 : 4. As per Regulation 173 of Pension Regulations for the Army(Part I) 1961, disability pension is payable only when disability is accepted as attributable to or aggravated by military service and is assessed at 20% or more. Attributability/aggravation is conceded if casual connection between disablement and military service is certified by the Medical Authority(Rule 8 of Entitlement Rules for Casualty Pensionary Awards 1982). 5. Since in your case, the disability has been certified by the Medical Authority to be constitutional in nature not connected with service casual connection between disablement and military service is therefore not established. Hence your disability is considered neither attributable to nor aggregated by the conditions of military service, you are therefore not entitled to any disability pension under the provisions of Regulation 173 of Pension Regulations for the Army. Your appeal for grant of disability pension is accordingly rejected.” 5. It is challenging the rejection of his claim for disability pension and for a direction for its payment the writ petition is filed. 6. Counter affidavit has been filed by the respondents. According to the respondent, while the petitioner was serving with 47 Air Defence Regiment, he was downgraded to medical category `BEE' (Temporary) with effect from 11th July 1996 due to Essential Hypertension. It is stated that subsequently the O.P.No.3842/03 :4 : petitioner was downgraded to medical category `BEE' (Permanent) with effect from 20th July 1997, but was retained in service in the public interest for as long as his services were required. It is stated that the petitioner has not been invalidated out of service but was transferred to the pension establishment with effect from Ist September, 1999 on completion of service as laid down in para 163 of Regulations for the Army, 1987, with total service of 28 years and 22 days. 7. According to the respondents, the Medical Board examined the petitioner's case and Ext.R1 is the photocopy of the opinion of the Medical Bord. According to the Medical Board, the petitioner's case was that of Essential Hypertension which was neither attributable to nor aggravated by the military service. It is stated that in the light of the Medical Board's opinion, the petitioner did not qualify for pension and it was therefore the claim was not granted. 8. A reading of Ext.P8 also shows that the case of the petitioner was considered in accordance with the pension regulations and it was rejected as it did not satisfy the rules. In the light of the Medical Board's view, in the absence of anything O.P.No.3842/03 :5 : to conclude to the contrary, this court will not be justified in sitting in appeal that the conclusions arrived at by the experts constituting the medical Board. Therefore, on the materials produced, this court is not in a position to take a view different from what is taken by the authorities in Ext.R1 and Ext.P8. Writ Petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/ O.P.No.3842/03 :6 : ANTONY DOMINIC, J. ------------------------------------------------ O.P.NO.3842 OF 2003(G) ------------------------------------------------ J U D G M E N T Dated.30.10.2009