IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 14563 of 2008 DATE OF DECISION : MAY 29, 2009 No.165986 Ex. RPO OM PARKASH ....... PETITIONER(S) VERSUS UNION OF INDIA & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. R.A. Sheoran, Advocate, for the petitioner(s). Mr. SK Sharma, Advocate, for respondents. ... AJAI LAMBA, J. This petition under Articles 226/227 of the Constitution of India has been filed by Om Parkash son of Amar Singh, Ex-RPO, praying Civil Writ Petition No. 14563 of 2008 2 for issuance of a writ in the nature of certiorari quashing orders dated 23.1.2003, 11.1.2005, 3.2.2006 and 18.6.2008 (Annexures P-2, P-4, P-6 and P-8, respectively). The petitioner further prays for issuance of a writ in the nature of mandamus directing the respondents to grant disability pension for 20% disability with effect from 1.9.2001. The petitioner also claims the benefit of rounding off of pension at the rate of 50%. It transpires that the petitioner joined Navy on 9.8.1986. In 1995, the petitioner started feeling headache with fever and was taken sick while posted on INS Viraat. The petitioner, subsequently, consulted a doctor. The petitioner was diagnosed for brain tumor, technically known as ID Oligodendroglidma Right Frontal (Optd.). The petitioner was operated on 7.10.1995. The medical category of the petitioner was brought down to Low Medical Category (CEE(T)) with effect from 7.10.1995. The petitioner was retired from Navy service with effect from 31.8.2001. At the time of retirement, the medical category of the petitioner was CEE(P) against the disease ID Oligodendroglidma Right Frontal (Optd.). The petitioner was brought before the Release Medical Board, which recommended disability of the petitioner to the extent of 20% for two years, however, neither attributable to nor aggravated by Navy service. The claim of the petitioner for disability pension was referred to the Principal Controller of Defence Accounts (Pensions), Allahabad, for adjudication. The claim for disability pension, however, was rejected by the PCDA (Pensions), Allahabad, vide order dated 23.1.2003 (Annexure P-2) on the ground that the disability was not attributable to Navy service and had not been aggravated by it. Civil Writ Petition No. 14563 of 2008 3 It seems that the petitioner preferred an appeal, which has been dismissed vide order dated 11.1.2005 (Annexure P-4) on the following ground :- “On perusal of your service/medical documents, the Appellate Medical Authority has found that the ID is neither attributable nor aggravated due to military service. In view of the fact that your disability has been regarded by the Medical Authority as not attributable to military service, it is regretted that your request for Disability Pension cannot be acceded to.” The petitioner made a second and final appeal to the Defence Minister's Appellate Committee which, however, was dismissed vide order dated 3.2.2006 (Annexure P-6) with the observation that the Committee does not find any ground to alter the decision of the Ist Appellate Committee. It seems that the petitioner served a legal notice, which was responded vide Annexure P-8 dated 18.6.2008. It has been brought out in response to the legal notice that the petitioner was discharged on completion of his term of engagement. The disability assessed was 20% for two years, however, it was neither attributable nor aggravated by Navy service. I have heard the learned counsel for the parties and have gone through the pleadings. Learned counsel for the petitioner has argued that at the time of entry in service, the petitioner was medically fit. The petitioner developed the medical problem after serving for 9 years. At the time of discharge, the petitioner had a medical problem causing disability. Civil Writ Petition No. 14563 of 2008 4 Learned counsel has contended that in such circumstances, the petitioner is entitled to the claim made. The other argument raised by the learned counsel for the petitioner is that no note has been given in the medical record of the petitioner at the time of his entry in service that the petitioner had any such disease. In such circumstances, when admittedly, the petitioner has a medical problem causing disability at the time of exit from service, the petitioner is entitled to the disability pension. Learned counsel for the petitioner has referred to a Division Bench judgment of this Court in A.J.S. Chaudhary v. Union of India and others, 1998(8) SLR 615, and a judgment of the Delhi High Court in Navin Chandra and others v. Union of India and others, 2006 (4) SCT 626. Learned counsel for the respondents has pointed out that the petitioner, at no point of time, has challenged the medical opinion. The nature of disease, which is a tumor, cannot possibly be held to be attributable to military/Navy service. The petitioner has failed to discharge the onus of placing any document or material on the record to show that the tumor developed on the petitioner could possibly be on account of military/navy service or aggravated by military/navy service. Learned counsel has further pointed out that service element of pension has already been granted to the petitioner. The petitioner was allowed to complete the term of engagement. In the contention of the learned counsel for the respondents, the disease of the petitioner is constitutional in nature. Civil Writ Petition No. 14563 of 2008 5 A reference to the judgment in A.J.S. Chaudhary's case (supra), indicates that the petitioner therein suffered from Schizophrenia and because a note had not been given at the time of entry in service, the petition was allowed. It was not a case of constitutional disease. Rather, a perusal of para-20 of the judgment shows that the judgment in Gurdip Singh (Retd.) v. Union of India, 1997(5) SLR 341, has been distinguished on the ground that the opinion expressed by the Medical Board was to the effect that the disease was constitutional and not attributable to military service. It, therefore, becomes evident that the petitioner cannot derive any benefit from the cited judgment in A.J.S. Chaudhary's case (supra). So far the judgment in Navin Chandra's case (supra) is concerned, a perusal of paras 14 and 15 of the judgment indicates that the Medical Board did not express its view clearly. It was merely said that it was a constitutional disorder or disease. No specific opinion was given. The petitioner therein suffered from “Affective Psychosis”. Clearly, the judgment in Navin Chandra's case (supra) does not help the case of the petitioner and is distinguishable. As against the above, it is a clear case set up by the respondents that the petitioner was as an old case of ID Oligodendroglidma Right Frontal (Optd.). It is the consistent case of the respondents that the disease was neither attributable nor aggravated by military service. In this regard, reference may be made to the judgment of the Hon'ble Supreme Court of India in Union of India and others v. Surinder Singh Rathore, 2008(2) RSJ 566. Exact reference may be made to paras 6 to 9, which read as under:- Civil Writ Petition No. 14563 of 2008 6 “6. In Union of India and Anr. v. Baljit Singh, 1996 (11) SCC 315, this Court had analysed Rule 173 of the Pension Regulations. It was observed that where the Medical Board found that there was absence of proof of the injury/illness having been sustained due to military service or being attributable thereto, the High Court's direction to the Government to pay disability pension was not correct. It was inter-alia observed as follows: "6...... It is seen that various criteria have been prescribed in the guidelines under the Rules as to when the disease or injury is attributable to the military service. It is seen that under Rule 173 disability pension would be computed only when disability has occurred due to wound, injury or disease which is attributable to military service or existed before or arose during military service and has been and remains aggravated during the military service. If these conditions are satisfied, necessarily the Civil Writ Petition No. 14563 of 2008 7 incumbent is entitled to the disability pension. This is made ample clear from clause (a) to (d) of para 7 which contemplates that in respect of a disease the Rules enumerated thereunder required to be observed. Clause (c) provides that if a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. Unless these conditions satisfied, it cannot be said that the sustenance of injury per se is on account of military service. In view of the report of the Medical Board of Doctors, it is not due to military service. The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service. In each case, when a disability pension is sought for Civil Writ Petition No. 14563 of 2008 8 made a claim, it must be affirmatively established, as a fact, as to whether the injury sustained was due to military service or was aggravated which contributed to invalidation for the military service". 7. The position was again re- iterated in Union of India and Ors. v. Dhir Singh China, Colonel (Retd.), 2003 (2) SCC 382. In para 7 it was observed as follows: "7. That leaves for consideration Regulation 53. The said Regulation provides that on an officer being compulsorily retired on account of age or on completion of tenure, if suffering on retirement from a disability attributable to or aggravated by military service and recorded by service medical authority, he may be granted, in addition to retiring pension, a disability element as if he had been retired on account of disability. It is not in dispute that the respondent was compulsorily retired on attaining Civil Writ Petition No. 14563 of 2008 9 the age of superannuation. The question, therefore, which arises for consideration is whether he was suffering, on retirement, from a disability attributable to or aggravated by military service and recorded by service medical authority. We have already referred to the opinion of the Medical Board which found that the two disabilities from which the respondent was suffering were not attributable to or aggravated by military service. Clearly therefore, the opinion of the Medical Board ruled out the applicability of Regulation 53 to the case of the respondent. The diseases from which he was suffering were not found to be attributable to or aggravated by military service, and were in the nature of constitutional diseases. Such being the opinion of the Medical Board, in our view the respondent can derive no benefit from Regulation 53. The opinion of the Medical Board has not been assailed in this proceeding and, therefore, Civil Writ Petition No. 14563 of 2008 10 must be accepted." 8. The above position was again highlighted in Union of India & Ors.v. Keshar Singh, 2007(5) SCR 408. 9. The Medical Board's opinion was clearly to the effect that the ailment suffered by the appellant was not attributable to the military service and also not aggravated due to it. Learned Single Judge and the Division Bench were not justified in holding that the same was attributable to Military service and/or was aggravated because of service. The respondent is not entitled to disability pension. However, on the facts and in the circumstances of the case payment, if any, already made to the respondent by way of disability pension, shall not be recovered.” Importantly, the petitioner has not challenged the decision of the Medical Board. In the petition, rather, it has been admitted in para-3 that the doctor found that the petitioner was suffering from brain tumor, technically termed as ID Oligodendroglidma Right Frontal (Optd.). Learned counsel for the petitioner has not been able to draw the attention of the court towards any material to indicate that the said disease could be attributed to or aggravated by Naval service. Coupled with absence of Civil Writ Petition No. 14563 of 2008 11 material and the decision of the Medical Board having not been challenged, the petition is liable to be dismissed in view of the judgment of the Hon'ble Supreme Court of India in Surinder Singh Rathore's case (supra), relevant portion whereof has been extracted above. The petitioner was given due opportunity of hearing. Reasoned orders have been passed by the respondent authorities, basis whereof has not been challenged by the petitioner. No legal infirmity in the decision making process can be traced. No ground for judicial review of impugned orders is made out. The petition is, accordingly, dismissed. May 29, 2009 ( AJAI LAMBA ) Kang JUDGE