Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 161 of 2006 The Union of India & others …….Appellants. Versus Anand Prasad . …Respondent. Mr. B.P.S. Mer, Advocate for the appellants. Mr. Dinesh Gahatori, Advocate for the respondent. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. (By the Court) This Special Appeal has been filed by the Union of India challenging the validity and legality of the judgment and order dated 23.2.2006 passed by the learned Single Judge in Writ Petition No. 1673/2006 (S/S) filed by the petitioner (present respondent), where the writ petition has been allowed and a mandamus has been issued to the appellants to grant disability pension to the respondent @ 80 per cent disability from the date of his discharge from service. The brief facts of this case are as under :- The respondent before this Court is a war veteran. He was enrolled in Mahar Regiment of the Indian Army on 21.2.1964 as a Sepoy. As a soldier of the Indian Army he fought for the country first in the Indo-Pak War in the year 1965, and then again in the Indo-Pak War in the year 1971. In this Indo-Pak war of 1971 the respondent sustained injuries during the warfare. As a result of the injuries sustained in the war, he had to undergo various treatments while being in the Indian Army, but ultimately as his condition did not improve he had to face a medical board on 16.4.1975 and the medical board after 2 examining and investigating the respondent came to the conclusion that the respondent has suffered a disability of 80 per cent due to the bullet injury on his knee and femur and has a lateral poplitial paralysis. He was, therefore, discharged from services in the Indian Army under Rule 13 (3) III (iii) of the Army Rules w.e.f. 11.4.1975, on medical grounds. It is an admitted position that in cases where the disability is more than 20 per cent, a person is liable for his disability pension which is calculated on the basis of his length of service as well as the percentage of his disability. Apart from this, since the respondent was being discharged on medical grounds due to an injury which he had sustained during war, he was also entitled for other pensionary benefits including “war injury pension”, which again is calculated on the basis of “percentage of disability”. The Invalidating Medical Board or IMB which consists of medical experts had given their expert opinion calculating the disability on the body of the respondent @ 80 per cent and consequently his papers were moved before the pension authorities where the pension of the respondent was liable to be calculated on the basis of the disability which has been calculated by the medical board. The case of the respondent is that although his disability was calculated @ 80 per cent the pension which was given to him was not on the basis of 80 per cent but on the basis of 60 per cent, which was arbitrarily fixed by the pension authorities. This action of pension authorities the respondent has alleged as arbitrary. Hence, a writ petition was filed by the respondent/petitioner being Writ Petition No. 1673/2006 (SS) with the following prayer :- 3 “(i) A writ, order or direction in the nature o mandamus directing and commanding the Respondents to give the disability pension to the petitioner of the rate fixed for 80 % disabled personals as the petitioner was declared 80 % disabled by the Medical Board constituted in the year 1975 with an interest of 18 %. (ii) A writ, order, rule or direction in the nature of mandamus directing and commanding the Respondents to give all other benefits to the petitioner as well as his family for which the petitioner is really entitled. (iii) Issue a writ, order, rule and direction in the nature of mandamus commanding and directing the Respondents to pay the disability pension to the petitioner for the period 18-2-1999 to 1-6-2003 for which has not been paid to the petitioner. (iv) To pass such other and further orders as this Hon’ble Court may deem fit and proper in the circumstances of the case. (v) Award the cost of the petition.” In the counter affidavit, the appellants admitted the claim of the petitioner/respondent so far as his disability being calculated @ 80 per cent, however, it contends that his pension papers having been forwarded to the pensioning authorities it was the pensioning authorities at Allahabad which had reduced the disability of the petitioner from 80 per cent to 60 per cent. The learned Single Judge after hearing both the parties came to the conclusion that the disability which was initially fixed by the medical board as 80 per cent was not liable to be reduced by the Pension Sanctioning 4 Authority (PCDA), Allahabad to 60 per cent, as it was done without the petitioner being re-examined by any other medical board. Therefore when experts in the Army Hospital have earlier given a certificate to the petitioner for his disability of 80 per cent, it was absolutely arbitrary on the part of the Pension Sanctioning Authority to re-assess his disability and reduce it to 60 per cent. The learned Single Judge has also taken note of the fact that during this period, the disability of the petitioner has in fact further increased, as the paralysis in his body has increased to 100 per cent. The contention of the appellants/respondents that the petitioner did not appear before the medical board for re-assessment and therefore in 1996 his medical assessment of disability being 60 per cent has also been declined by the learned Singe Judge as it was not a valid explanation. Learned counsel for the appellants has relied upon clause 17 of Appendix-II referred to in Regulation 48, 173 and 185 of the Hand-Book on Pension-Regulations for the Army-1961-part 1. Clause 17 which is in the nature of an administrative instruction and reads as follows :- “17. MEDICAL OPINION – At initial claim stage, medical views on entitlement and assessment are given by the IMB/RMB. Normally, these views shall prevail for decision in accepting or rejecting the claim. In cases of doubt the Ministry/CCDA (Pensions) may refer such cases for second medical opinion to MA (Pensions) Sections in the office of the DGAFMS/Office of CCDA(P), Allahabad, respectively. At appeal stage, appropriate appellate medical authorities can review and revise the opinion of the medical boards on entitlement and assessment.” Relying upon the aforesaid provision, learned counsel for the appellants states that though the earlier assessment of disability of the petitioner/respondent by IMB/RMB was 80 per cent when the pension papers were 5 sent by the Military Authorities to the Ministry/CCDA (Pensions), it was referred to MA (Pensions) Sections which consequently reduced the disability of the respondent from 80 per cent to 60 per cent. Even if this be the position, once the disability of the petitioner/respondent has been fixed by the medical board to 80 per cent, disability can only be reduced after the physical examination of the petitioner/respondent by a superior medical board where this superior board must assign its reasons as to why the disability is being reduced. Since, this had not been done, the learned Single Judge was right in holding that the reduction in the disability of the petitioner/respondent from 80 per cent to 60 per cent is totally arbitrary. It is an admitted position that in all cases, where a person is getting a medical pension on a certain percentage of disability, he is periodically examined by a Medical Board, from time to time, and only after a medical examination his disability at that particular moment is accessed. In case the disability has decreased, his medical pension would accordingly be decreased. However, what is important is that this assessment is only done after an examination by a Medical Board. Therefore, when such a practice is in force, it must also be made applicable whenever in a given case, the pensionery authorities think of a reassessment. Since this has not been done, the refixation of the disability of the respondent / petitioner from 80% to 60% suffers from the vice of arbitrariness and the learned Single Judge was therefore absolutely correct in holding it as such. Since the petitioner/respondent was not medically examined through a Medical Board by the PCDA (Pensions) there is no good ground for interfering with the 6 order of the learned Single Judge. This Court is also conscious of the fact that the petitioner/respondent sustained major injuries during Indo-Pak war fighting for his country. He has now become invalid and survives on his medical pension. Therefore, in the interest of justice and looking at the totality of the facts and circumstances of the case, there is no good ground for interfering with the order of the learned Single Judge. Learned counsel for the appellants has then stated that the writ petition of the petitioner was filed belatedly and it was liable to be rejected on the grounds of latches alone. This Court, however, is not inclined to accept this submission of the appellants at such a belated stage. Firstly, the Union of India has not made any serious objections to the writ petition on the grounds that it is being filed belatedly and is liable to be rejected on the grounds of latches. In fact such a ground has also not been taken in the present Special Appeal. Now, when the learned Single Judge has already interfered in the matter and has decided this case on its merit, it is not proper for this Court to go into the ground as to whether the writ petition itself was filed within time. The Special Appeal being totally devoid of merit is dismissed. No order as to costs. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J) Avneet Dated : 26 th February 2010