IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 91 of 2007 DATE OF DECISION : FEBRUARY 25, 2009 NO.13733810-H EX-HAV. HIRA SINGH ....... PETITIONER(S) VERSUS UNION OF INDIA & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. Rajesh Sehgal, Advocate, for the petitioner(s). Ms. RB Sharma, Advocate, for respondents. AJAI LAMBA, J. (Oral) Ex-Havaldar Hira Singh has filed this petition under Articles 226/227 of the Constitution of India praying for issuance of a writ in the nature of certiorari for quashing order dated 5.12.1998 (Annexure P-1) and order dated 31.7.2004 (Annexure P-6). The effect of the impugned orders is that the disability element of pension claim of the petitioner has been rejected. Undisputed facts are that the petitioner was enrolled in the Civil Writ Petition No. 91 of 2007 2 Army on 14.11.1979. At the time of entry in Army, the petitioner did not suffer from any disability as no note was given to that effect by the medical board that examined the petitioner. The petitioner was admitted in Military Hospital on 14.1.1997, suffering from Primary Hypertension V-67. The petitioner was downgraded to Low Medical Category CEE (Temporary) on 3.3.1997. On review, the petitioner was placed on Low Medical Category BEE (Permanent) for two years with effect from 20.9.1997 to 11.9.1999. The petitioner was invalidated out on 31.5.1998. In brief, the contention of the learned counsel for the petitioner is that the Medical Board examined the petitioner and gave a clear opinion that he had suffered disability on account of Hypertension, which was aggravated by military service. The matter was forwarded to Principal Controller of Defence Accounts (Pension), Allahabad (for short 'PCDA(P)') who, however, declined the relief of disability pension to the petitioner. It is the contention of the learned counsel for the petitioner that the PCDA(P) did not get the petitioner re-examined by any medical board so as to reassess/review the case of the petitioner to come to a different conclusion. No reasons have been assigned and no material has been placed before this court to justify the action of PCDA(P). In this regard, learned counsel for the petitioner has relied on a judgment of the Hon'ble Supreme Court of India in Civil Appeal No.164 of 1993 (arising out of SLP(c) No.4233 of 1992) titled ‘Ex Sapper Mohinder Singh vs. Union of India’ decided on 14.1.1993, which has been followed by a Civil Writ Petition No. 91 of 2007 3 Division Bench of this Court in Ex-Subedar Jasmail Singh Vs Union of India and others, 2006(2) Law Herald 1480. Learned counsel for the petitioner has also relied on a judgment of this Court rendered in Civil Writ Petition No.1687 of 2002, decided on 31.5.2006 (Ex-Recruit Jagjit Singh vs. Union of India & Others). Learned counsel for the respondents has not been able to dispute the facts, as stated above. It would be appropriate to reproduce the stand of the respondents which, in effect, states the case of the petitioner. In this regard, reply to paras 7 to 11 (on merits) of the written statement is extracted below:- “7 to 11. That in reply to para 7 to 11 it is submitted that during the course of service, the petitioner was admitted in 167 Military Hospital on 14.1.1997 where his disease ID 'PRIMARY HYPERTENSION' was detected. In this context refer details of petitioner's hospitalization/ medical categorization given in brief of case. The petitioner was downgraded to medical category CEE (Temporary) with effect from 3.3.1997 due to disease 'PRIMARY HYPERTENSION'. On review he was placed in low medical category BEE (Permanent) for two years with effect from 20.9.1997 to 11.9.1999. As per Army order 46/80 the employment of permanent low medical category personnel, at all times, is subject to the availability of suitable appointment commensurate with their medical category and also to the provision that this can be justified in the public interest and that their retention will not exceed the sanctioned strength of the Regiment/ Corps. When such an appointment is not available or when their retention exceeds the Civil Writ Petition No. 91 of 2007 4 sanctioned strength of the Regiment/ Corps, they will be discharged irrespective of the service put in by them. Though, the petitioner was willing to continue in service, but shelter appointment commensurate with his medical category was not available with the unit. The petitioner was discharged from service under Army Rule 13(3) item (v) with effect from 31.5.1998 (AN) and was finally SOS from Army Service with effect from 1.6.1998 after holding his Release Medical Board. The Release Medical Board of the petitioner was held at Military Hospital Jabalpur on 23.2.1998 and was approved by DADH, HQ MB Area on 7.3.1998. Duly constituted medical board assessed the disability of the petitioner at 20% for two years. The duly constituted Medical Board also opined that the disability of the petitioner was not attributable to but aggravated by military service and the same was connected with service. Accordingly, Records J & K RIF vide letter No.SR/13743810/26/DP dated 31.7.1998 forwarded petitioner's disability pension claim to PCDA (P) Allahabad for adjudication. While adjudicating the petitioner's disability pension claim medical Advisor (Pension) attached to PCDA (P) Allahabad, who is competent authority to adjudicate the initial disability pension claim of PBOR in terms of Govt. of India, Ministry of Defence letter No.1(1)/81/D (Pen-C) dated 21.6.1996 opined that the petitioner's disability ID 'PRIMARY HYPERTENSION' is constitutional in nature and not related to military service. Accordingly PCDA (P) Allahabad vide letter No/G-3/95/154/8/98 dated 24.11.1998 rejected petitioner's disability pension claim. The petitioner was informed about the decision of PCDA (P) Allahabad vide Records J & K RIF letter No.SR/13743810/29/DP dated 5.12.1998 with an advice that he may prefer an appeal to the Government of Civil Writ Petition No. 91 of 2007 5 India, Ministry of Defence against the decision of PCDA (P) Allahabad through Records J & K RIF, but not later than six months from the date of rejection of his disability pension i.e. with effect from 24.11.1998. Hence, the contention of learned counsel for petitioner that the petitioner was not given the letter of rejection as passed by the pension sanctioning authority is baseless and incorrect. It is further submitted that as per para 173 of Pension Regulations for the Army 1961 (Part 1) disability pension is conditional grant which is granted only to those individuals who are discharged from service on account of disability which is attributable to or aggravated by military service and is assessed at 20% or more. In this instant case the Medical Advisor (Pension) attached to PCDA (P) Allahabad, who is competent authority to adjudicate the initial disability pension claim of PBOR in terms of Govt. of India, Ministry of Defence letter No.1(1)/81/D (Pen-C) dated 21.6.1996 while adjudicating petitioner's claim opined that the disability ID 'PRIMARY HYPERTENSION' is constitutional in nature and not related to military service. Hence, he is not entitled to disability pension as per rules governed on the subject. The copies of the letters dated 21.6.96, 24.11.1998 & 5.12.1998 are attached as ANNEXURE R/1 to R/3.” No other contention has been raised by either of the counsel. I have considered the issue. In Ex-Recruit Jagjit Singh's case (supra), this Court has held in the following terms:- “Having heard the learned counsel for the parties at a considerable length and after perusing the documents placed on record, I am of the view that the Civil Writ Petition No. 91 of 2007 6 short issue involved in both the petitioner (SIC) is that whether the CCDA or PCDA could sit in judgment over the opinion of the experts in medical line. It is admitted position that the disability of the petitioner in both petitions was certified to be 20% by the Re-Survey Medical Board. However, the PCDA has rejected the disability pension by assessing the invalid disability at less than 20%. The aforesaid mentioned issue is squarely covered by the judgment of the Hon’ble Supreme Court in the case of Ex. Spper Mohinder Singh v. Union of India (Civil Appeal No.164 of 1993 decided on 14.1.1993, wherein it has been held as under:- “From the above narrated fact and the stand taken by the parties before us, the controversy that falls for determination by us is in 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, it is nowhere stated that the petitioner was subjected to any higher Medical Board before the Chief Controller of Defence Accounts (Pensions) 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 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.” The aforementioned view has been followed by Civil Writ Petition No. 91 of 2007 7 Division Benches of this Court in the case of Satpal Singh Vs. Union of India and others (CWP No.15445 of 2003, decided on 26.09.2005); Ex-Sapper Ujaggar Singh Vs. Union of India and others (CWP No.17688 of 1996, decided on 9.10.1997) and in a recent judgment in the case of Ex-Subedar Jasmail Singh Vs Union of India and others 2006(2) Law Herald 1480. I, respectfully follow the view taken by the Hon’ble Supreme Court as well as this Court and hold that the CCDA/PCDA cannot sit in judgment over the opinion expressed by Re-Survey Medical Board. Accordingly, applying the principle laid down by the aforementioned judgments, these petitions deserve to be allowed. During the course of arguments, learned counsel for the respondents have raised the issue of delay in filing petitions after a long gap of 40 years. This argument is not tenable in as much as. It is a settled position of law that the right to receive pension of any kind is a recurring cause of action and it accrues every month. In this regard, the judgments relied upon by the learned counsel for the petitioner, as detailed in the earlier part of the judgment are fully applicable in the instant petitions. In view of the above, both the writ petitions are allowed. A direction is issued to the respondents to assess the disability pension of the petitioner in each case by keeping in view that they had suffered 20% disability for life, which is referable to service, with effect from the dates of their disability pension has been discontinued. It shall include both disability element and service element of pension. However, the arrears are confined to 38 months preceding the date of filing of petitions, which are 24.01.2002 (CWP No.1687 of 2002) and 29.01.2002 (CWP No.1906 of 2002). The arrears Civil Writ Petition No. 91 of 2007 8 shall be paid within a period of two months from today. The petitioners in both cases shall continue to get the disability pension for life.” The judgment of the Hon'ble Supreme Court of India in Ex Sapper Mohinder Singh (supra), has been followed in Ex-Recruit Jagjit Singh's case (supra). Likewise, this Court in Ex-Subedar Jasmail Singh's case (supra) has followed the dictum laid down in Ex Sapper Mohinder Singh (supra). Having considered the stand of the respondents, it follows that the Release Medical Board of the petitioner was held at Military Hospital, Jabalpur on 23.2.1998. The Medical Board assessed the disability of the petitioner at 20% for two years and further opined that the disability was aggravated by military service and was connected with his service. When the matter was forwarded to the PCDA(P) for adjudication, the Disability Pension Claim Medical Advisor (Pension) attached to that authority opined that the petitioner's disability i.e. “Primary Hypertension” was constitutional in nature and not related to military service and, therefore, rejected the claim of the petitioner for disability pension. The documents appended with the written statement do not indicate that the petitioner, in fact, was medically examined by any higher medical authority. Thus, the decision taken by the PCDA(P) is rendered de hors the facts. Although, a decision has been taken by the PCDA(P) to the detriment of the rights of the petitioner, no reasons have been assigned. Reasons were required to be given by the PCDA(P), particularly because there was no complaint of any disability since the petitioner joined the Army in the year 1979 till 1998 i.e. for 19 years. The Civil Writ Petition No. 91 of 2007 9 PCDA(P) has declared the disease to be constitutional, however, without placing any material before this court in evidence of the fact that has been made the basis to deny the claim of the petitioner. A specific note with supporting material was required to be given that the disease could not have been detected at the time of induction of the petitioner in Army. No material has been placed before this Court to show that any such note was given and nor any material has been brought forth to justify the action of the PCDA(P). Merely saying that the matter had been adjudicated by an authority having competent jurisdiction would not serve the purpose in law. So as to assess that the disease was constitutional [as held by the PCDA(P)] and not aggravated by military service (as opined by the Release Medical Board on physical examination of the petitioner), reasons had to be assigned and that too after examination of the petitioner by some higher medical board. The PCDA(P) had no legal authority, in facts or in law, to sit over the judgment of the experts in the medical line, without making any reference to a detailed or higher medical board. In this view of the matter, the case is squarely covered by the judgment rendered by the Hon'ble Supreme Court of India and as followed by a Division Bench of this Court, as noticed above. The writ petition is, accordingly, allowed. The petitioner would be allowed disability pension at the rate of 20% from the date of his discharge. February 25, 2009 ( AJAI LAMBA ) Kang JUDGE