IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 WP(C).No. 35634 of 2007(P) ---------------------------------------- PETITIONER(S): ------------------------- P.U. SUNNY, PANAYALELI, SANKARAPADI P.O., KASARAGODE. BY ADV. MR.P.VINODKUMAR RESPONDENT(S): --------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI. 2. THE DIRECTOR, THE CENTRAL PENSION ACCOUNTS OFFICE, GOVERNMENT OF INDIA, TACKOOT-2, BHIKAJ CANA PLACE, NEW DELHI-66. 3. THE DIRECTOR GENERAL, BOARDER SECURITY FORCE, NEW DELHI. 4. THE COMMANDANT, TAC HQ 60 BN BSF, C/O. 56 APU. R1 TO R4 BY ADV. MR.T.SANJAY, CGC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.35634/2007 P APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE OPINION OF THE MEDICAL BOARD DTD. 22/02/2007. EXT.P2: COPY OF SHOW CAUSE NOTICE DTD. 27/03/2007 ISSUED TO PETITIONER BY COMMANDANT. EXT.P3: COPY OF ORDER OF THE 4TH RESPONDENT DTD. 9/04/07. EXT.P4: COPY OF PAY ORDER ISSUED BY THE 2ND RESPONDENT TO THE MANAGER, S.B.I., KASARAGODE. EXT.P5: COPY OF PETITION MADE TO THE RESPONDENTS DTD. 12/07/2007 BY PETITIONER. EXT.P6: COPY OF ORDER ISSUED BY 1ST RESPONDENT DTD. 23/10/2007. EXT.P7: COPY OF ORDER ISSUED BY 4TH RESPONDENT DTD. 24/10/2007. RESPONDENT'S ANNEXURES: ANNEXURE R1: COPY OF THE MEDICAL BOARD PROCEEDING PART II. ANNEXURE R2: COPY OF APPLICATION OF PETITIONER DTD. 23/01/2007. ANNEXURE R3: COPY OF APPLICATION OF PETITIONER DTD. 13/02/2007. ANNEXURE R4: COPY OF THE WRITTEN CONSENT OF PETITIONER DTD. 07/04/2007. ANNEXURE R5: COPY OF SCHEDULE-I – A OF RULE 3(4) OF CCS (EOP) RULES. /TRUE COPY/ P.A.TO JUDGE Kss T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.35634/2007-P ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 17th day of February, 2009 J U D G M E N T The writ petition is filed seeking to quash Exts.P6 and P7 and for a direction to the respondents to disburse the disability pension due to the petitioner. He was a constable in the Border Security Force and joined there on 16/08/1990. Later, he was sent on deputation in Computer Wing for the Border Fencing and Flood Fighting Project of the Indo-Pak Border. Therein he worked during the period from 1998-2004. Subsequently, he was posted to 60 battalions wherein he suffered serious disorder to his left eye. It is stated that he lost the eye sight of the left eye and it gradually affected the right eye also which was diagnosed as Retinal Vascultis (both eyes), Vitreous Hemorrhage (left eye). 2. He was adjudged medically unfit to continue in the service of the Armed Forces with 80% disability. Ext.P1 is the opinion of the Medical Board. The Medical Board's opinion was to the effect that the disability was aggravated by the service conditions, especially stress and strain. Ext.P2 is the show cause notice proposing him to relieve him from service W.P.(C) No.35634/2007 -:2:- and thereafter, by Ext.P3 order dated 09/04/2007, he was struck off from the service and he was made to retire on 13/04/2007. 3. Ext.P4 is the proceedings which will show that he was granted only invalid pension. Even though Ext.P5 representation was filed by the petitioner, by Exts.P6 and P7 the respondents have rejected the representation stating that the disability is not one of the items provided in the schedule. 4. The respondents have filed a detailed counter affidavit. It is averred in paragraph 10 of the counter that going by the Medical Board's proceedings, the petitioner has been awarded 80% permanent disability and the disease was not directly attributable to the conditions of service. It is also stated that it is not covered under the list of classification of diseases that can be contracted/attributable by service under schedule-1-A of Rule 3 (4) of Central Civil Services (Extraordinary Pension) Rules. 5. The question whether a disability which is not coming within the schedule could be reckoned for the purpose of granting disability pension was considered by this Court in Vijay vs.The Director General of B.S.F and another [ILR 2006 (1) Kerala 43]. After referring to various decisions of this Court and the Apex Court it was held that “for the only W.P.(C) No.35634/2007 -:3:- reason that the decease is defined under the Rules by using the expression 'means' does it mean that it is an exhaustive definition. The emerging inference is that a rigorous, literal and pedantic interpretation is not to be attributed to the definition of disease as appearing under the Rules. For the only reason that a particular decease is not included in the Schedule and if the decease has caused disability to a serving personnel to continue in service, the law is not helpless in the matter of disability pension. In such circumstances, it will be highly unjust and unreasonable to deny the petitioner the benefit of disability pension for the only reason of specific non-inclusion of the disease causing the disability, in the Schedule.” 6. In the light of the above dictum laid down by this Court, the stand taken by the respondents cannot be justified. Ext.P1 is the proceedings of the Medical Board. It shows that the decease was contracted during service. Opinion goes to the effect that it is aggravated by stress and strain. The disability is assessed as 80% permanent. There is no finding that it is due to genetic condition or contributed by him. Exts.P6 and P7 are therefore quashed. It is declared that for the only reason that the disability is not the one included in the Schedule, disability pension cannot be disallowed. The authority will sanction disability pension under the Rules. W.P.(C) No.35634/2007 -:4:- The third respondent will pass fresh orders in the light of the dictum laid down in Vijay's case [2006(1) ILR Kerala 43] cited above. The same shall be done within a period of three months from the date of receipt of the copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms