1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4033/02 Brigadier (Retd.) V.K. Sarda, Vr.C. vs. Union of India & Ors. Date of order : 7th August, 2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Shyam Singh for the petitioner. Shri Kamlakar Sharma for the respondents. ****** REPORTABLE Brigadier (Retd.) V.K. Sarda, recipient of Veer Chakra, has approached this Court with the prayer that a mandamus be issued to the respondents to grant him disability pension with effect from 1.3.1997 and the letters dated 14.7.1998, 7.6.2000 and 9.5.2002 refusing to grant his disability pension, be set aside and the respondents be directed to pay arrears of the disability pension alongwith interest at the rate of 24% per annum. The petitioner joined National Defence Academy on 1.1.1959 and was granted commission on 11.12.1962 in the rank of Second Lieutenant in medical category-A. He was promoted to the Rank of Lieutenant, 2 Captain, Major, Lieutenant Colonel, Colonel and Brigadier. During his service tenure, petitioner served both in the field and operational areas. He participated in Indo- Pak conflicts of 1965 and 1971. He was for his services rendered to the nation decorated with Poorvi Star, Paschimi Star, Raksha Medal, Sainya Seval with clasps Jammu and Kashmir & West Bengal, Ucchan Tunga Medal, 25th Independence Anniversary Medal, and 9, 20 and 30 years long service Medals. He was also decorated with the prestigious Veer Chakra for displaying gallantry, leadership and devotion to duty of a high order during operations against Pakistan in December 1971. Owing to the stress and strain of service, over which he had no control, petitioner developed heart disease. The Medical Board convened on 24.1.1993 to examine the petitioner opined that the petitioner was suffering from Ischaemic Heart Disease (for short-IHD). The petitioner was invalidated out of service due to disease IHD in low medical category on 28.2.1997. It is contended that 3 petitioner had no medical history of IHD in his family which falls for acceptance on the basis of aggravation. As per Rule 7(a) of the Entitlement Rules, it should be deemed to have arisen in service, due to stress and strain of service. This disease does not fall in any category of the diseases normally not affected by service as listed in Sr.E of Annexure-1 of the Entitlement Rules. The report of the Medical Board was however not accepted by the Appellate Medical Authority and his claim for disability pension was rejected by letter of the Army Headquarters dated 14.7.1998 on the ground that his disability was neither attributable to nor aggravated by military service. The petitioner then preferred appeal against the non-award of the disability pension to the Central Government on 25.8.98. The Central Government by its order dated 7.6.2000 rejected his appeal. It was thereafter that the petitioner filed a second appeal before the Central Government in its Ministry of Defence, which was considered afresh by Defence Ministers' Appellate Committee on Pensions and was 4 rejected. Communication to this effect was addressed to the petitioner on 9.5.2000. The petitioner contends that he is entitled to benefit of doubt as per Rule 4 thereof and cannot be called upon to prove the conditions of entitlement as per Rule-9 of the Entitlement Rules. According to Regulation 48(a) of the Pension Regulations for Army Part-I, if an officer retires from military service on account of a disability, which is attributable to or aggravated by military service and assessed disability is 20% or over, he may on retirement be awarded a disability pension consisting of service element and a disability element in accordance with the regulations in this section. Regulation 48(b) provides that the question whether a disability is attributable to or aggravated by military service shall be determined under the Rules in Appendix-II. Shri Shyam Singh, learned counsel for the petitioner has argued that the findings of the Medical Board held on 24.1.1993 clearly proved that the petitioner contracted the disability in service due to 5 circumstances over which he had no control and his disability was aggravated due to military service i.e. due to athroma manifesting itself as IHD on account of failure in diagnosis and timely treatment. It was argued that this disease is known as Atherosclerosis of coronary blood vessels which spreads over a long time in slow process and is progressive in nature. Its progression leading to involvement of triple vessels, had taken years. It was not detected in time resulting in allowing the petitioner to perform duties in higher medical category with more stress and strain. Owing to these reasons, it was a case of aggravation as per para 4(b)(iii) of Chapter-VI of the Guide to Medical Officers (Military Pensions) 1980. It is argued that opinion of the Medical Board as per Rule 423 of the Regulation for the Medical Services of the Armed Forces, 1962 has to be regarded as final. In this connection, reference was made to the judgement of Supreme Court in 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 6 decided on 23.3.1999. Shri Shyam Singh, learned counsel for the petitioner argued that the 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 examine him personally and also appreciating the nature of duties and strength and stress thereof. Learned counsel argued that the Government of India, Ministry of Defence in its letter dated 28.5.2001 sent in the context of disability pension claim of one Ex-Colonel addressed to the Chief of Army Staff, conveyed that it has been decided in consultation with competent medical authority that out of the disabilities viz.ID(i) Low Backache-524, (ii) IHD and (iii) Cholecystitis with Cholelithiasis 574 from which the aforesaid Ex-Colonel was found suffering at the time of release from service, the disabilities of Low Backache-524 and IHD should be recorded as aggravated by his military service. Shri Shyam Singh therefore argued that the respondents could not adopt a different approach in the case of the petitioner, when 7 in similar circumstances, the same disease detected in another army officer was held to have been aggravated by military service. It was argued that petitioner had all along been discharging hard duties and was also at times required to work as paratrooper. The first Medical Board therefore rightly opined that Atherosclerosis of coronary blood vessels is a slow process and progressive in nature. Its progression leading to involvement of triple vessels had taken years to develop but same was not detected in time and due to failure in diagnosis, the petitioner was allowed to perform the duties in higher medical category, which aggravated the disease. Shri Shyam Singh also referred to the duty chart of the petitioner of two years immediately preceding the diagnosis of the disease to show that even during such time, the petitioner had been discharging hard and difficult duties. Referring to the opinion of Second Medical Board, it is argued that the opinion of the First Medical Board was reiterated by the Second Medical Board which clearly observed that the disease of the petitioner was aggravated by 8 service conditions due to failure in timely diagnosis. His disability was assessed at 20%. Learned counsel argued that even if the petitioner was retired on attaining the age of superannuation, the petitioner would be entitled to disability pension as per Regulation 53(1) of the Pension Regulations for the Army, 1961, Part-I. Learned counsel relied on the judgement of this Court in Birbal Singh vs. Union of India & Ors., S.B. Civil Writ Petition No.3161/99 decided on 27.11.2002 and argued that in respect of similar IHD disease, the respondents were directed to grant disability pension to the petitioner in the aforesaid case. The learned Single Judge held that petitioner entitled for disability pension as the disease which lead to his discharge had arisen during service and was held to be attributable to military service. It was therefore prayed that the writ petition be allowed. Per contra, Shri K.K. Sharma, learned Assistant Solicitor General for the respondents opposed the writ petition and argued that disability pension cannot be 9 claimed as a matter of right. Its grant would always depend upon the circumstances of a given case and the applicability of the Entitlement Rules. It was argued that in the present case, the matter was considered at the highest level and the claim of the petitioner was rejected. It was argued that the Appellate Medical Committee consists of highest level officials, including officials with medical background, who having taken into consideration all the documents and reports, came to the conclusion that the disease suffered by the petitioner cannot be held to be aggravated by military service. It was wrongly suggested that the disease of the petitioner was not recognised and not managed in time as IHD was diagnosed and managed well in time. No undue stress and strain related to military service was evident prior to onset of IHD. The appeal preferred by the petitioner was considered not once but even second time, although there is no provision for consideration of appeal for the second time. The Defence Ministers' Appellate Committee on Pensions upon consideration of the appeal did not 10 find any ground for grant of disability pension to the petitioner. Relying on division bench judgement of this Court in Union of India & Ors. vs. Bhoora Ram, D.B. Special Appeal (W) No.254/06, Shri K.K. Sharma argued that para 7(b) of the Entitlement Rules cannot be interpreted to mean that if the petitioner was fit and healthy at the time of recruitment in army, the disease should be held to be attributable to or aggravated by military service. Shri K.K. Sharma, learned counsel for the respondents further argued that the Appellate Medical Authority and the Central Government rejected the claim of the petitioner for grant of disability pension to the petitioner on account of the fact that his disease was a constitutional disorder and its onset was in peace stations. In fact, the disease of IHD was diagnosed and managed well in time and that the petitioner was not subjected to any undue stress and strain. It was therefore prayed that the writ petition be dismissed. 11 I have given my thoughtful consideration to the rival arguments advanced by learned counsel for the parties and perused the material on record. What this Court is called upon to examine in the present matter is that whether the disease ISD with which the petitioner was found to be suffering was aggravated due to military service because it is not even the case of the petitioner that such disease was attributable to military service. In other words, what is contended on behalf of the petitioner is that when he contracted such disease, had the same been timely diagnosed, he would have been entitled to be brought in a lower medical category than higher one, in which he was all this time required to work. The report of the First Medical Board dated 24.1.1993 clearly shows that while the Medical Board did not opine this disease to be attributable to the conditions of service, but it clearly stated that even though it was not directly attributable to service, but was aggravated thereby. The report of the Second Medical Board held on 12 10.10.1993, also indicates that the Board this time though had not attributed the disease to service conditions, but again held it to be aggravated thereby. In the column relating to specific conditions and period in service which aggravated the disability, it is stated therein that disability was aggravated “due to failure in diagnosis” and reference therein was made to the proceedings of the First Medical Board dated 24.1.1994. Disability of the petitioner was assessed to be 20%. This Court in Birbal Singh, supra also upheld the claim of disability pension of the petitioner who was diagnosed to have Ischaemic Heart Disease like the petitioner holding that the said disease was aggravated due to stress and strain of service and directed payment of benefit of disability pension to him with effect from discharge from service together with interest at the rate of 12% per annum. In Ram Kumar Singh, supra, a coordinate bench of this Court while following the judgement of Supreme Court in Ex.Sapper Mohinder Singh vs. U.O.I., Civil Appeal No.164/1993 decided on 13 January 14, 1993 held that the 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.” Regulation 48(b) of the Pension Regulations for Army Part-I provides whether a disability attributable to or aggravated by military service shall be determined under Rules in Appendix-II. Rule 4 thereof provides that in deciding on issue of entitlement, all the evidence, both direct and circumstantial will be taken into account and benefit of doubt will be given to the claimant and this benefit will be given more liberally to the claimant in 14 field service cases. Rule 7 provides for the guidance on the question of aggravation and states that in cases where it is established that conditions of military service did not determine or contribute to the onset of the disease but influenced the subsequent course, the disease would fall for acceptance on the basis of aggravation. It further provides that a disease which has led to an individual's discharge from service will ordinarily be deemed to have arisen in service, if no note of it was made at the time of individual's acceptance for military service. However, if medical opinion holds for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. The division bench of this Court in Bhoora Ram, supra interpreted clause (b) of Rule 7 in the terms that though there is a presumption that a disease which led to discharge, would be presumed to have arisen in service if no note of it was made at the time of enrollment in the military service. 15 This presumption however is not conclusive proof of a fact. It was thus held that presumption is always rebuttable which is evident from the latter part of clause (b) that if the Medical opinion holds to the contrary, the disease will not be deemed to have arisen during service. But that judgement would not be relevant for deciding the controversy involved in the present case because it is not even the case of the petitioner that the disease is attributable to military service. What is contended is that though the disease is contracted by him during military service, but this was aggravated due to continued engagement in the military service which he was not fit enough to discharge. Rule 4 of the Appendix II, supra thus assumes a significance in the case of the present nature which inter alia, provides that cases in which it is established that conditions of military service did not determine or contribute to the onset of the disease but influenced the subsequent course of disease, will fall for acceptance on the basis of aggravation. Even the respondents do not dispute that medical 16 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 17 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 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. Merely because the disease of IHD was diagnosed when the petitioner was posted in peace stations, the Appellate Medical Authority would not be justified in holding that it did not aggravate due to stress and strain during service and was diagnosed and managed well in time. In fact, the communication of the Government of India addressed to Chief Army Staff dated 28.5.2001 though made in the context of the disability pension claim of 18 Ex-Colonel G.S. Rajput, provides justification to what is being contended by the petitioner where the Government accepted the claim of the aforesaid Officer holding that the disease not only of IHD but also of lower backache from which he was found suffering at the time of release from service should be regarded as aggravated by military service. In the facts of the present case, when the petitioner has shown that for want of timely diagnosis of the disease, he was allowed to perform the duties in higher medical category and that had the disease IHD been timely diagnosed, he would have been given suitable duties in lower medical category and kept under observation, Rule 4 of the Entitlement Rules would have to be applied in deciding the question of aggravation which provides that both direct and circumstantial evidence will be taken into account and the benefit of reasonable doubt will be given to the claimant and that this benefit will be given more liberally to the claimant in field service cases. In view of what has been discussed 19 above, the writ petition deserves to be allowed and is accordingly allowed. The letters dated 14.7.1998, 7.6.2000 and 9.5.2002 are quashed and set aside. The respondents are directed to grant benefit of disability pension to the petitioner in terms of Rule 53(1) of the Pension Rules with effect from the date of discharge of the petitioner together with interest at the rate of 9% per annum. Compliance of the judgement be made within a period of three months from the date copy of judgment is served upon the respondents. (MOHAMMAD RAFIQ), J. RS/ 20 S.B. CIVIL WRIT PETITION NO.4033/02 Brigadier (Retd.) V.K. Sarda, Vr.C. vs. Union of India & Ors. Date of order : 7th August, 2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Shyam Singh for the petitioner. Shri Kamlakar Sharma for the respondents. The writ petition is allowed (See separate order). By order COURT MASTER