IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.15217 of 2006 Date of Decision: February 25, 2009 Harbhajan Singh .....PETITIONER(S) VERSUS Union of India & Others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Rajesh Sehgal, Advocate, for the petitioner. Mrs. Renu Bala Sharma, Central Government Standing Counsel, for the respondents. . . . AJAI LAMBA, J (Oral) This civil writ petition filed under Article 226/227 of the Constitution of India prays for a writ in the nature of certiorari for quashing Order dated 10.12.1997 (Annexure P-4), order dated 11.11.1999 (Annexure P-7) and Order dated 5.12.2001 (Annexure P-8). Vide the impugned orders, disability element of pension has been denied to the petitioner. The disability has been reduced to less than 20% i.e. 11-14 % by respondent No.2, Principal Controller of Defence Accounts (Pension), Allahabad [PCDA(P)]. In brief, the case of the petitioner as admitted by the learned counsel for the CWP No.15217 of 2006 [2] respondents is that the petitioner was enrolled in Army on 8.12.1979. The petitioner was discharged from service on 31.12.1996 under Army Rule 13(3)(III)(i) on completion of term of engagement through the Release Medical Board. It has further been admitted by the respondents that the petitioner was placed in Low Medical Category CEE(T) on 21.8.1995 having suffered disability i.e. Chip Fracture Ante Rosuperior Margine of LV-4. The petitioner was placed in Low Medical Category CEE(P) w.e.f. 1.2.1996. It has been brought out that Pre- Release Medical Board of the petitioner was finalised on 13.8.1996 and his disability was assessed at 30% for two years. It seems that claim of the petitioner for grant of disability pension was forwarded to PCDA(P), Allahabad vide letter dated 9.1.1997. The case, however, was rejected as his disability was assessed to less than 20% i.e. 11-14 % for 5 years w.e.f. 1.1.1997 to 5.8.2001 vide letter dated 10.12.1997, Annexure P-4. The petitioner filed an appeal against the decision. The appeal was considered by the First Appellate Committee at Army Headquarters. The Committee assessed the disability at less than 20% for 5 years and rejected the appeal vide Order dated 11.11.1999, Annexure P-7. Vide Order dated 5.12.2001, Annexure CWP No.15217 of 2006 [3] P-8, disability of the petitioner was again assessed at less than 20% for life by PCDA(P), Allahabad, hence disability pension has been denied. Contention of learned counsel for the petitioner is that Pre-Release Medical Board, admittedly, assessed the disability of the petitioner at 30% for two years, and grant of disability pension was recommended. The petitioner was not examined by any other Medical Board in assistance to PCDA(P) or a higher medical body of Doctors and yet without there being any basis or reason or material available with that authority (PCDA), case for grant of disability pension has been rejected. Even with the written statement, no such material has been placed on record to justify the action of the respondents in not granting the disability pension to the petitioner. Learned counsel for the petitioner has placed reliance on judgment of the Hon’ble Supreme Court of India in Civil Appeal No.164 of 1993 (arising out of SLP(c) No.4233 of 1992) titled ‘Ex Sapper Mohinder Singh vs. Union of India’ decided on 14.1.1993. It has further been brought out that this Court while relying on Ex Sapper Mohinder Singh’s case (supra) has allowed the case of a person similarly situated such as the petitioner viz. Ex-Recruit Jagjit Singh vs. Union of India & Others, Civil Writ Petition No.1687 of 2002, decided on 31.5.2006. CWP No.15217 of 2006 [4] Learned counsel for the respondents has pointed out that the PCDA(P) is the authority to pass orders and the order is not without jurisdiction. Learned counsel for the respondents, however, has not been able to refer to any document or material to justify the action of PCDA(P) who has denied the claim of the petitioner. I have considered the issue. The basis for denial of pension by PCDA(P) is reflected from Para 1 of Order dated 10.12.1997 (Annexure P-4). Relevant portion reads as:- “Your disability pension claim has been adjudicated by CCDA (P) Allahabad in consultation with Medical Advisor (Pensions) attached to their office and it has been decided that the disability viz. CHIP FRAC ANT MARCINE ASSESSED from 011% to 014% on account of which you have been released/invalided out of military service is, .......” The decision taken by CCDA(P) however has not been reflected to have been taken on examination of the petitioner by a higher medical authority as compared to Release Medical Board that had physically examined the petitioner and recommended grant of disability pension for 30% disability. Ex Sapper Mohinder Singh’s case (supra) was relied on by this Court while dealing with the case of Ex Recruit Jagjit Singh (supra). The following needs to be extracted from the case Ex Recruit Jagjit Singh (supra):- “Having heard the learned counsel for the parties at a considerable length and after perusing the documents placed on record, I am of the view that the short issue CWP No.15217 of 2006 [5] involved in both the petitioner (SIC) is that whether the CCDA or PCDA could sit in judgment over the opinion of the experts in medical line. It is admitted position that the disability of the petitioner in both petitions was certified to be 20% by the Re-Survey Medical Board. However, the PCDA has rejected the disability pension by assessing the invalid disability at less than 20%. The aforesaid mentioned issue is squarely covered by the judgment of the Hon’ble Supreme Court in the case of Ex. Spper Mohinder Singh v. Union of India (Civil Appeal No.164 of 1993 decided on 14.1.1993, wherein it has been held as under:- “From the above narrated fact and the stand taken by the parties before us, the controversy that falls for determination by us is in a very narrow compass viz. Whether the Chief Controller of Defence Accounts (Pension) has any jurisdiction to sit over the opinion of the experts (Medical Board) while dealing with the case of grant of disability pension, in regard to the percentage of the disability pension, or not. In the present case, it is nowhere stated that the petitioner was subjected to any higher Medical Board before the Chief Controller of Defence Accounts (Pensions) decided to decline the disability pension to the petitioner. We are unable to see as to how the accounts branch dealing with the pension can sit over the judgment of the experts in the medical line without making any reference to a detailed or higher medical Board which can be constituted under the relevant instructions and rules by the Director General of Army Medical Core.” The aforementioned view has been followed by Division Benches of this Court in the case of Satpal Singh Vs. Union of India and others (CWP No.15445 of 2003, decided on 26.09.2005); Ex-Sapper Ujaggar Singh Vs. Union of India and others (CWP No.17688 of 1996, decided on 9.10.1997) and in a recent judgment in the case of Ex-Subedar Jasmail Singh Vs Union of India and others 2006(2) Law Herald 1480. I, respectfully follow the view taken by the Hon’ble Supreme Court as well as this Court and hold that the CCDA/PCDA cannot sit in judgment over the opinion expressed by Re-Survey Medical Board. Accordingly, applying the principle laid down by the aforementioned judgments, these petitions deserve to be allowed. During the course of arguments, learned counsel for the respondents have raised the issue of delay in filing petitions after a long gap of 40 years. This argument is not tenable in as much as. It is a settled position of law that the right to receive pension of any kind is a recurring cause of action and it accrues every month. In this regard, the judgments relied upon by the learned counsel for the petitioner, as detailed in the earlier part of the judgment are fully applicable in the instant petitions. In view of the above, both the writ petitions are allowed. A direction is issued to the respondents to assess CWP No.15217 of 2006 [6] the disability pension of the petitioner in each case by keeping in view that they had suffered 20% disability for life, which is referable to service, with effect from the dates of their disability pension has been discontinued. It shall include both disability element and service element of pension. However, the arrears are confined to 38 months preceding the date of filing of petitions, which are 24.01.2002 (CWP No.1687 of 2002) and 29.01.2002 (CWP No.1906 of 2002). The arrears shall be paid within a period of two months from today. The petitioners in both cases shall continue to get the disability pension for life.” On consideration of the facts in the context of judgment of this Court and the judgment of the Hon’ble Supreme Court of India rendered in Ex Sapper Mohinder Singh’s case (supra), I find that the petitioner suffered Chip Fracture in Left Vertebra resulting in 30% disability as assessed by the Pre-Release Medical Board. When the matter was referred to PCDA(P), the decision given by the Release Medical Board was over-ruled, however, without any further examination of the petitioner or without assigning any reason to the petitioner although the decision was detrimental to the rights of the petitioner. The contention of learned counsel for the respondents that PCDA(P) has the authority to review the decision taken by Release Medical Board hence there is no legal infirmity in the action of respondent, has to be rejected because it has not been shown to the Court that the petitioner had been examined by a higher Medical Authority and on the basis of such examination, the decision of Release Medical Board has been reviewed. Surely the extent of disability of the petitioner could not have been reviewed CWP No.15217 of 2006 [7] without examining the petitioner by a body of Doctors. This is so because the decision of a body of Doctors i.e. medical experts, was to be reviewed. No material having been placed on record before this Court and a vague reply having been filed in this context, the petition is allowed. The petitioner is entitled to disability pension for 30% disability with effect from the date of his discharge. The arrears be paid within three months of receipt of copy of this order. (AJAI LAMBA) February 25, 2009 JUDGE avin