1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R LRs. of Babu Ram v. Union of India & Ors. S.B.CIVIL WRIT PETITION NO.4065/1998 under Article 226 of the Constitution of India. Date of Order : 13th March, 2009 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. R.K.Soni, for the petitioners. Mr. M.S.Godara, for the respondents. .... BY THE COURT : After death of original petitioner Shri Babu Ram, this petition for writ is prosecuted by his legal heirs. The chronology of the facts necessary to be noticed is as follows:- 1. The petitioner was enrolled with Indian Army on 28.7.1982; 2 2. At the time of enrollment he was found medically fit, thus, was placed in “AYE” category; 3. His vision at the time of recruitment was of 6/6; 4. During field duties, he suffered with Optic Atrophy and Astrocytoma, thus, he was subjected to surgical operation of head which further deteriorated his condition; 5. After serving for 11 years, 5 months and 27 days the petitioner was invalided out from military service on 24.1.1994 by placing him “EEE” medical category with 100% disability element; 6. The Chief Controller of Defence Account (Pension), (hereinafter referred to as “CCDA (P)”, Allahabad held the petitioner not entitled for disability pension by treating invaliding disability neither attributable nor aggravated by military service; and 7. The appeal preferred by the petitioner against the decision aforesaid also came to be rejected in the month of February, 1996. 3 In the factual background, as stated above, this petition for writ was filed on 16.11.1998 with a prayer to direct the respondents to grant the petitioner disability pension including disability element and all other benefits of his disability and also to carry out a resurvey medical board. Further a direction is sought to provide proper treatment/ assistance to the petitioner. The petitioner during pendency of this petition for writ died on 18.3.2002, thus, by an order dated 24.7.2003 the legal representatives of the petitioner, those are his widow and seven daughters, were substituted as petitioners to pursue present petition for writ. In the petition for writ, the main contention taken on behalf of the petitioner is that the CCDA(P), Allahabad was having no authority to declare the petitioner disentitled for disability pension by taking the invaliding disability neither attributable nor aggravated by military service. Such a finding could have been given only by a competent medical board. In reply to the writ petition the respondents came forward with a case that as a matter of fact the decision of the CCDA(P) was founded on the recommendation made by a competent medical board. 4 Alongwith reply to the writ petition the respondents have also placed on record a copy of the medical board proceedings. As per the documents placed on record, at the first instance Colonel D.K.Sen, Senior Adviser (Opthalmology), CH (SC) Pune, opined on 13.8.1993 as follows:- “An old case of Rt Parietal high grade III Astrocytoma (Optd) with hamiparesis left and “Bilateral optic Atrophy Rt Left”. His ocular condition has further deteriorated and his vision in Rt eye is finger is finger counting at 3' feet only. Left eye central vision is 6/12 but he has got gross constriction of visual field all round. His vision is left eye in likely to deteriorate further. He is not considered fit to continue in service. Recommended to be invalided out of service in Med Cat EEE.” An another opinion was given by Major P.K.Thakur, Graded Specialist Radiotherapy on 19.8.1993 as follows:- “This 30 Yrs old serving Sep as MT DVr, is a case of Rt Purintal Astroctoma gr.III-4 who presented first in Mar 88 with frontal headache, bluned vision, SMS 7th n palay and gr IV Weakness Lt half of body. A CECT done on 02 Nov 88 revealed a large Rt pariotal SOL with case effect. Craniotery and debulking was does on 08.11.88 which confirmed distopath diagnosis of high grade asfrocytoma 5 B/3060-68/88 and MDTC B/1269-1274/88. Post Op oranial Rt to a dese of 5800 rade/88 fractiona delivered concluding 20.1.89. Adjuvaat chemethoropy (consisting of VDR + CC NU + precarbasing) given at 6 weekly intarvvol Total aourses given Six, ending Jan 90. He has been observed for 12 so in cat CEE (T), 6 mo in cat CEE(T) and for 2 years in cat BEE (P). Presently his general condition is fair. Systemic exam of chest CVS P/A is normal. CNS exam reveals normal HMF. Bilateral papillcodoma. VA (a) FC 3, (L) 6/12 with severe restiction of visual fields gr IV Lt hoviporesis pereisty. Pt is ambulant, and isoluntary covenants are present. Routine hamogref, urinanalysis, liver function tests are normal. CMR is NAD. No other investigation are indicated with the persisting Lt homiparesis blindness of Rt eye and with secorely restricted fiels of the other eye (which has progressed), after being observed for 5 years it is Surmiseel, that these disabilities wile presint if not weresn further. E. cannot serve as a useful soldier. In view of the above and conousent with the opiaiod of dviser opthalmology as obtnined on 13.3.93, it is opined that the patient be invalided out of service incat EEE.” The medical board opined that disability as a consequent to which the petitioner was invalided out was not attributable to service during peace or under field service conditions it had not been aggravated during the military service and that was also not 6 connected with service. The relevant portion of the opinion of the medical board reads as follows:- “(a)In respect of each disability the Medical Board on the evidence before it will express it views as to whether, (i)It is attributable to service during peace or under field service conditions; or (ii)It has been aggravated thereby and remain so; or (iii)It is not connected with service. The Board should state fully the reason in regard to each disability on which its opinion is based. Disability A B C ATIEA – CCPITY 1 & 2 1 & 2 1 & 2 BE - - - ASTROCYTOMA NO NO Yes CADE III IV In respect of each disability shown as attributable under A, the Board should state fully, the specific condition and period in service which caused the disability. 1 & 2 – N.A. ..... ..... 7 Disability (as numbered in question I, part II) Percentage of disablement Probable duration of the degree of disablement Composite assessment (all disabilities) Optic Atrophy 80.00% (Eighty percent) Two years 100.00% (One hundred percent) GRADE III IV 80.00% (Eighty percent) 377 IUI (Emphasis given by me.) In rejoinder to the reply the petitioner has contested the mode of opinion given by the medical board. It is contended that the opinion given by the medical board is absolutely laconic as no reason in regard to each disability is given to support the findings. As per counsel for the petitioner the board was under obligation to state fully the reasons in regard to each disability on which its opinion was based. Counsel for the petitioner has pointed out the requirement aforesaid as referred in part III of the model form relating to “medical board proceedings invaliding all ranks”. According to counsel for the petitioner this Court in Laxman Ram v. Union of India & Ors., SBCivil Writ Petition No.834/2006, decided on 12.12.2008, while considering the same issue, held that the medical board while reaching at a conclusion that disability occurred to a defence personnel was neither attributable nor aggravated because of 8 military service is required to assign reasons to support such conclusion and if such conclusion is without any basis, then that is not required to be treated conclusive. On the other hand, it is stated by counsel for the respondents that the opinion of the medical board is not open to challenge as it is a conclusion arrived by experts on adequate examination of the complete medical record of a defence personnel i.e. the petitioner in present case. Heard counsel for the parties. From perusal of the report of the medical board, relevant portion of which is quoted in preceding paras, it is apparent that Colonel D.K.Sen, Senior Adviser (Opthalmology) opined regarding disease of the petitioner but he nowhere stated that such disease was constitutional in nature or that was neither attributable to military service nor aggravated during military service. It is also pertinent to note that Colonel D.K.Sen, while submitting his opinion, specifically averred that the condition of the petitioner further deteriorated after surgical operation. Similarly, Major P.K.Thakur prescribed necessary details regarding ailment and disability of the petitioner but he too nowhere stated regarding origin of disease. 9 The medical board framed its opinion on basis of the comments given by Colonel D.K.Sen and Major P.K.Thakur. While forming its opinion the medical board has not assigned even a single reason to reach at a conclusion that disability of the petitioner was neither attributable nor aggravated because of military service. The medical board gave its opinion in most cryptic manner by mentioning “No” or “Yes”. Medical board is a body of experts and experts are specialist in their subjects with a developed faculty of judging and deciding the issues relating to their subjects. They are required to judge the issues rightly, justly, wisely and with authority. The opinion given by the experts is supposed to be based on special knowledge of a subject beyond that of an average person. Normal individuals and bodies rely on their opinions and also act as per guidelines prescribed by them, therefore, a body of experts bear heavy responsibility for giving definite opinion with cogent reasons. Such an opinion must be capable to express its qualified, technical, skilled and analytical background. It cannot be and should not be in casual and unqualified manner. If opinion of an expert is not based on cogent reasons or that contains ambiguity, then that is nothing but a conclusion of a lay man. An opinion of expert must disclose sound application of mind to establish its objectivity and alliance with the subject. 10 In the present case, no such expertees or thorough consideration reflects with the medical opinion. It was all the more necessary in light of the requirement under the model form for prescribing medical opinion by stating fully the reasons in regard to each disability on which the opinion was based. Despite such obligation, the Board has not stated any reason to support its finding. In view of whatever said above and in light of the judgment of this Court in the case of Laxman Ram (supra), opinion given by the medical board is not at all conclusive. The petitioner served Indian Army for a period of about 12 years and at the time of his recruitment he was found absolutely fit with “AYE” medical category. While in active field service he suffered with three disabilities, consequently he was declared 100% disabled. A specific opinion was also given by Colonel D.K.Sen that the condition of the petitioner deteriorated after surgery. There is nothing available on record to reach at the conclusion that the disease of the petitioner was constitutional by nature. Now, unfortunately the petitioner is no more, thus, no further medical examination is possible. In such circumstances, I consider it proper to presume that disability suffered by the petitioner 11 was attributable as well as aggravated due to military service. Consequently, this petition for writ deserves acceptance. Accordingly, the same is allowed. The denial of the disability element to the petitioner by the CCDA(P), Allahabad is declared illegal and, therefore, the same is quashed. The respondents are directed to allow disability pension to the petitioner from the date he was invalided . Petitioner Babu Ram has already died, therefore, whatever right accrues as a consequent to the directions above, be given to his legal representatives. No order to costs. ( GOVIND MATHUR ),J. kkm/ps.