IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.1114/2005 Reserved on 1.5.2008 Decided on.16.5. 2008 Ex-Subedar Hans Raj. …Petitioner. Versus Union of India and others. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Vinod Gupta, Advocate. For the respondents : Mr. Ravinder Thakur, Central Government Counsel Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that the petitioner was enrolled in the Indian Army on 29th October, 1975. He was down graded to low medical category BEE (P) with effect from 22nd May, 1990. He was promoted to the rank of Subedar with effect from 1.9.1999. He was discharged from service on 15.3.2000 on the basis of Release Medical Board held on 3.11.2000. The disability “PERIPHERAL VESCULAR DISEASE 443 (C) V-67” of the petitioner was assessed by the Medical Board at 11 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 to 14% for 5 years. The case of the petitioner was pursued by the competent authority with PCDA (P), Allahabad. The same was rejected. The petitioner was advised to file an appeal to the Government of India, Ministry of Defence against the decision of the PCDA (P), Allahabad. He preferred an appeal on 11.2.2002. The same was forwarded to PCDA (P), Allahabad on 26.2.2002 and thereafter further referred to by the PCDA (P), Allahabad to the Government of India on 26.6.2002. Consequently, the Army Headquarters on 15.10.2003 issued instructions to PCDA (P), Allahabad that the disability “PERIPHERAL VESCULAR DISEASE 443 (C) V-67” of the petitioner should be regarded as aggravated by service and degree of disablement be viewed at 20% for 3 years with effect from 1.4.2001. Accordingly the petitioner was sanctioned disability element @ Rs. 380/- per month. The Re-survey Medical Board of the petitioner was convened at Military Hospital, Yol on 27.2.2004 and his disability was assessed at 20% for life. The disability element of the petitioner was revised from Rs. 380-/- per month to Rs. 950/- per month with effect from 1.4.2001 vide letter dated 23.2.2005. Though the petitioner has been paid the disability pension, but he was not granted the disability benefits accruing to him under the Army Group Insurance Scheme (Annexure R-3). Mr. Vinod Gupta, Advocate appearing on behalf of the petitioner had strenuously argued that since the petitioner’s disability has been assessed with effect from 1.4.2001, his client is entitled to the benefit under the Army Group Insurance Scheme as per Annexure R-3. 3 Mr. Ravinder Thakur, Central Government Counsel had supported Annexure P-5 dated 11.6.2005 and Annexure R-10 dated 30.12.2005. His contention was that at the time of the consideration of the case of the petitioner, his disability was assessed between 11 to 14% on the basis of the Release Medical Board held on 3.11.2000 I have heard the learned counsel for the parties and perused the record carefully. What emerges from the facts enumerated hereinabove is that the petitioner was discharged from the Army service on 15th March, 2000 on the basis of the recommendations of the Release Medical Board. His disability was assessed by the Medical Board at 11 to 14% for 5 years. He preferred an appeal to the Government of India on 11.2.2002. The Government of India conveyed the decision to the competent authority that the disability of the petitioner should be regarded as aggravated by service and degree of disablement be viewed at 20% for 3 years with effect from 1.4.2001. He was paid disability initially @ Rs. 380/- per month and subsequently on the basis of the Re-survey Medical Board convened on 27.2.2004, his disability element was increased from Rs. 380/- per month to Rs. 980/- per month. In Re-survey Medical Board, the petitioner’s disability was assessed at 20% for life. The Army Group Insurance Scheme has been introduced with effect from 1980 as per Annexure R-3. The underline objective of the scheme is to provide financial benefits to individual whose service is cut short due to invalidment or release on medical grounds 4 before completion of the terms of engagement or service applicable to that rank. The disability benefit is paid as per the scheme as lump sum benefit based on initial assessment by invaliding Medical Board or Re-survey Medical Board before completing the contractual period of service for the rank and meeting the eligibility condition. The disability benefit admissible is 50% or as specified by the prevalent insurance cover for 100% disability on the date of invalidment and proportionately reduced for lower percentage of disability upto 20% as specified. The disability amount as noticed above will depend on the disability percentage decided by the Medical Board/Release Medical Board proceedings. In the present case, true it is that at the time of discharge of the petitioner from the service as per the Release Medical Board, his disability was assessed at 11 to 14%. In appeal the same was assessed at 20% for 3 years with effect from 1.4.2001. In Re-survey Medical Board, his disability was assessed at 20% for life. The disability of the petitioner has to relate back as per the disability assessed by the Medical Board in appeal i.e. with effect from 1.4.2001. His disability was initially assessed for 3 years @ 20% and thereafter for life as per the Re-survey Medical Board dated 27.2.2004. The stand taken by the respondents that the disability of the petitioner for the release of the benefits under the AIGF Scheme is to be seen at the stage of release is untenable. The respondents mis-directed themselves by denying the petitioner the benefits accruing under the Army Insurance Group Scheme. The case of the petitioner was to be considered on the basis of the Medical Board 5 convened pursuant to the appeal preferred by the petitioner on 11.2.2002 with effect from 1.4.2001 and the Re-survey Medical Board’s recommendations which was convened on 27.2.2004 whereby the disability of the petitioner has been assessed @ 20% for life. It is evident from the contents of letter dated 11.6.2005 (Annexure P-5) that the respondents have only taken into consideration the earlier disability assessed by the Medical Board between 11 to 14% at the time of the release of the petitioner. This already stood reviewed /revised when the petitioner preferred an appeal and his disability was assessed initially at 20% for 3 years and at 20% thereafter for life. What was to be seen primarily for the grant of the benefits under the scheme is whether the petitioner has suffered the disability or not. In the present case definitely the petitioner has suffered disability and as noticed above the petitioner is squarely covered under the scheme notified in the year 1980. Consequently, the writ petition is allowed. Annexure P-5 dated 11.6.2005 and Annexure R-10 dated 30.12.2005 are quashed and set aside. The respondents are directed to release the benefits of the Army Group Insurance Scheme to the petitioner with effect from 1.4.2001 with interest @ 9% per annum within a period of 8 weeks from today. There shall be no order as to costs. ( Rajiv Sharma), Judge May 16, 2008 *Awasthi*