1 IN THE HIGH COURT OR UTTARANCHAL AT NAINITAL Writ Petition No. 1424 (SS) of 2005 Vinod Kumar S/o late Narayan Dutt Sharma, Resident of village-Kabra, P.O. era (Malla), Tehsil Lansdown, P.S. Satpuli, District – Pauri District. ……….Petitioner. Versus 1. Union of India through the Secretary Ministry of Defence, North Block, New Delhi, 2. Chief of the Army Staff, Sena Bhawan, New Delhi, 3. The Officer Commanding, E.M.E. Centre, Secunderabad – 500021, 4. Officer-in-Charge, E.M.E. Records, Secunderabad (A.P.), 5. Chief Controller of Defence Accounts (Pension), Allahabad. ………Respondents. Sri Ramak K. Shah, learned counsel for the petitioner, Sri Pradeep Joshi, learned Standing Counsel Union of India/ respondents. Hon’ble M.M. Ghildiyal, J. Heard Sri Ramesh Kumar Shah, learned counsel for the petitioner and Sri Pradeep Joshi, learned Standing Counsel Union of India/respondents. By means of this writ petition, the petitioner has prayed for the following reliefs:- a. Issue a writ, order or direction in the nature of mandamus directing the respondents to grant disability pension to the petitioner from the date of his discharge from the Army in accordance with para-173 of Pension Regulation alongwith the interest therein, 2 b. Issue any suitable writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case, c. Award the cost of the writ petition to the petitioner. The respondents have filed their counter affidavit. The stand taken by the respondents in para-4, 5 & 6 of the counter affidavit is as under:- “The petitioner was enrolled in the Army on 18th Sep. 1984 and invalidated out from service on 27th Feb. 1990 (A/N) in low medical category “EEE”, under item III (iii) of table annexed to Rule 13(3) of Army Rules 1954, due to his disabilities namely (a) UNSPECIFIED PHYCHOSIS and (b) CHRONIC MAXILLARY SINUSITIS (BIL). The Invaliding Medical Board (IBM) considered the disability (a) of the individual as neither attributable to nor aggravated by military service and the disability (b) as attributable to military service. However, both the disabilities were assessed by the IMB at 60% for two years.” “Consequent upon invalided out from service, all the legitimate terminal benefits were paid to the individual. As the disability (b) of the individual was considered as attributable to military service and both disabilities were assessed by the IMB at 60%, the disability pension claim in respect of petitioner was processed to PCDA (P) Allahabad for adjudication in terms of Rule 17 of Entitlement Rules for Casualty Awards 1982, since the findings of lower medical authorities like IMB/RMB/RSMB are recommendatory in nature and are subject to review by Competent Medical Authority named Medical Advisor (Pensions), in short MA (P). after careful adjudication of the case, PCDA (P) Allahabad granted service element to the individual for life from 28 Feb. 90 vide PRO No. D/011050/91 rejecting the disability (a) and accepting the disability (b) as attributable to military service but less than 20% for five years. Hence, no disability element was admissible to the individual under the provision contained in para-173 of Pension Regulations for the Army 1961 (Part-I). the fact regarding rejection of 3 disability element was also communicated to the petitioner vide EME Records letter no. 14572391/DP-9/Pen dt 27 Jan 92 advising him to prefer an appeal against rejection of the disability element within six months from 9 Nov. 91 on the grounds he deemed fit to put forth. But, the individual did not prefer any appeal within the stipulated period.” “The individual was brought before Re-Survey Medical Board, in Short RSMB, on 21 Jul 1994 for re-assessment of his disability CHRONIC MAXILLARY SINUSITIS (BIL). The RSMB re-assessed the same at less than 20% for 5 years, which was extended to 10 years after adjudication of the claim at PCDA (P) Allahabad as preferred by EME Records. The individual had submitted an appeal dated 16 Jun 1995 against rejection of his claim, which was considered carefully by the Govt. of India, Min of Defence and the same was finally rejected by the Govt. vide their letter No. 7(1259)/95/ D (Pen A & AC( dt 27 Feb 1997. Since the assessment of disability of the individual was at less than 20% for 10 years, he was again brought before RSMB on 12 Aug 2004, which re-assessed the disablement of the individual at 20% for life. Accordingly, the individual has been granted disability element for life. Accordingly, the individual has been granted disability element for life w.e.f. 12 Aug 2004 vide PPO No. D/170/2005 dated 19 Apr 2005 which has been forwarded to State Bank of India, Saptauli with an advise to the individual to draw payment of his disability element as notified vide EME Records letter No. 14572391/RA-9 dated 21 May 2005. Since the individual is drawing his pension from State Bank of India, Saptauli, PCDA (P) Allahabad has been requested to issue amendment of above PRO duly changing channel of payment vide EME Records letter No. 14572391/RA-9 dt 25 May 2005.” In para-11 of the writ petition, the petitioner has specifically stated that Re-Survey Medical Board proceeding was ordered by the respondents vide letter no. 14572391/RA- 9/PEN dated 31st March 2004, but the Medical Board was not conducted by the M.H. roorkee due to the few clarification from the respondents records, a letter was sent by the petitioner to the respondent no. 5 in this regard on 25.06.2004. The 4 petitioner also objected for not conducting the Medical Board as Directed vide letter dated 25.06.2004. In para-6 of the counter affidavit, the respondents have categorically stated that since the assessment of disability of the individual was at less than20% for 10 years, he was again brought before Re-Survey Medical Board on 12th August 2004, which re-assessed the disablement of the individual at 20% for life. Accordingly, the individual has been granted disability element for life w.e.f. 12th Aug. 2004, vide order dated 19th April 2005. The respondents in their counter affidavit have accepted the disability- (b) of the petitioner as attributable to military service, but the disability was found less than 20% for five years. They have further accepted that the Re-Survey Medical Board was conducted and the Re-Survey Medical Board assessed the disability at less than 20% for five years, which was extended to 10 years after adjudication of the claim at PCDA (P) Allahabad. Again the petitioner was brought before the Re- Survey Medical Board on 12th August 2004, which reassessed the disablement of the individual at 20% for life. In view of the Regulations, the individual is entitled for disability pension, in case, the disability is because of the disease attributable to or aggravated by the military services and is assessed 20% or more than 20%. As per the counter affidavit, since the disability – (b) was attributable to or aggravated by military service and further as per para – 6 of the counter affidavit, the Re-Survey Medical board on 12th August 2004 has re-assessed the disablement of the individual at 20% for life, the petitioner is entitled for disability pension. 5 Consequent upon the reasons recorded above, the writ petition deserved to be allowed. Accordingly, the writ petition is allowed. The respondents are directed to grant disability pension to the individual/ petitioner as per law within a period of six months from today. No order as to costs. (M.M. Ghildiyal, J.) December 16, 2006: NCM: