Allowed

Ex-Pnr.Raghubir Mali v. UOI and Ors.

Rajasthan HC21 Nov 2008CW/627/1998

Case brief

AI extract

What is this about?

In this writ petition, the petitioner sought disability pension alleging his disability was aggravated by military service despite meeting only a short service period. The bench held that the Medical Board's finding on aggravation is final and binding, ordering the grant of pension from the date of discharge but denying interest due to delay.

What did the court decide?

Grant of disability pension from date of discharge till date; payment of arrears within three months; continuation of monthly pension.

Ex-Pnr.Raghubir Mali Vs UOI and Ors. — Pension and Retirement Benefits | Rajasthan HC (2008)

¶1

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. CIVIL WRIT PETITION NO.627/98
No.8026276 : Ex.Pnr.Raghubir Mali
vs.

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Union of India & Ors.

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Date of order : 21/11/2008.

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HON'BLE MR.JUSTICE MOHAMMAD RAFIQ

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Shri K.P. Singh for the petitioner.
Shri M.S. Raghav for the respondents.
******

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REPORTABLE

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Heard learned counsel for the parties.

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This writ petition has been filed by the

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petitioner seeking payment of disability

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pension. Petitioner was enrolled in Indian

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Army as a Sepoy on 11.4.1979. Having been

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invalidated out of service in category EEE, he

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was discharged from the army on 22.6.1982. The
petitioner served the Indian Army for a total
period of 3 years, 2 months and 12 days.

¶14

Shri K.P. Singh, learned counsel for the
petitioner has argued that the petitioner was

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not granted the disability pension even though

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the Medical Board, on whose recommendation he
was invalidated out of service, clearly opined
that his disability was aggravated by military
service and that he sustained 20% disability,
both of which factors satisfied the

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requirement of clause 173 of the Pension

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Regulations for the Army. It was argued that
petitioner submitted appeal to the Government
of India on 19.1.1985 which was rejected by
letter dated 5.12.1985. He thereafter filed

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another appeal which too was rejected. Learned
counsel relied on the judgement of this Court
in Brigadier (Retd.) V.K. Sarda, Vr.C. vs.
Union of India & Ors., S.B. Civil Writ

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Petition No.4033/02 and argued that this Court
in aforesaid case held that opinion of the

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Medical Board cannot be reversed and its
findings on the question of aggravation of
disease by military service could not be
reversed by the appellate medical authority.

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The writ petitioner in that case was held
entitled to disability pension.

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Shri M.S. Raghav, learned counsel for the
respondents opposed the writ petition and

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argued that petitioner was discharged from
army service on 22.6.1982 having been found
unfit for further military service. He had
rendered service of only 3 years and 72 days,
whereas, qualifying period of service for
pension under the rules is 15 years. It was
argued that the opinion of the Invalidating
Medical Board was that the disability suffered
by the petitioner was not attributable to, but
aggravated by stress and strain of military
service, which assessed his disability at 20%.
However, as per the Army Order 417/74, it was
for the competent authority i.e. the Chief
Controller of Defence Accounts (Pensions)
Allahabad, either to sanction or reject the
disability claim and accordingly the matter

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was forwarded to him and he rejected the
disability claim. Reference in this connection
was made to the letter dated 16.10.1982 and
Pension Regulations for the Army Part-I, 1961.
It was argued that the findings of the Medical
Board are recommendatory in nature and not to
be taken as binding or final. The Chief
controller of Defence Accounts (Pensions)
Allahabad, while adjudicating the case before
rejecting or accepting a disability pension

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claim invariably takes into account specialist
medical opinion in each case from Medical
Advisor (Pensions) attached to them. The
petitioner in any case approached this Court
13 years after the date of his discharge. The
writ petition is therefore liable to be
dismissed.

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I have given my anxious consideration to
the rival submissions and perused the material
on record.

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The Supreme Court in Controller of Defence
Accounts (Pension) & Ors. vs. S. Balachandran
Nair- (2005) 13 SCC 128 has authoritatively
held that for the purpose of deciding whether
or not a disability is attributable to or
aggravated by the military service, opinion of
the Medical Board has to be respected and
cannot be brushed aside. This Court in

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Brigadier (Retd.) V.K. Sarda, supra had the
occasion to deal with a case where in the

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similar manner, the Medical Board opined that
disease suffered by petitioner was aggravated
by military service. In that context the
argument raised by the Union of India that
the opinion of the Medical Board could be
reversed by the Chief Controller of Defence,
Pension was rejected, holding thus:-

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“What this Court is called upon to
examine in the present matter is that
whether the disease ISD with which the
petitioner was found to be suffering was

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aggravated due to military service
because it is not even the case of the
petitioner that such disease was
attributable to military service. In
other words, what is contended on behalf
of the petitioner is that when he
contracted such disease, had the same
been timely diagnosed, he would have
been entitled to be brought in a lower
medical category than higher one, in
which he was all this time required to
work. The report of the First Medical
Board dated 24.1.1993 clearly shows that
while the Medical Board did not opine
this disease to be attributable to the
conditions of service, but it clearly
stated that even though it was not
directly attributable to service, but
was aggravated thereby. The report of
the Second Medical Board held on
10.10.1993, also indicates that the
Board this time though had not
attributed the disease to service
conditions, but again held it to be
aggravated thereby. In the column
relating to specific conditions and

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period in service which aggravated the
disability, it is stated therein that
disability was aggravated “due to
failure in diagnosis” and reference
therein was made to the proceedings of
the First Medical Board dated 24.1.1994.
Disability of the petitioner was
assessed to be 20%.

¶34

This Court in Birbal Singh, supra also
upheld the claim of disability pension
of the petitioner who was diagnosed to
have Ischaemic Heart Disease like the
petitioner holding that the said disease
was aggravated due to stress and strain
of service and directed payment of
benefit of disability pension to him
with effect from discharge from service
together with interest at the rate of
12% per annum. In Ram Kumar Singh,
supra, a coordinate bench of this Court
while following the judgement of Supreme
Court in Ex.Sapper Mohinder Singh vs.
U.O.I., Civil Appeal No.164/1993 decided
on January 14, 1993 held that the
opinion of the Medical Board has to be
respected and the Chief Controller of

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Defence (Pension) had no basis or reason
to differ with the report of the Medical
Board. The Supreme Court in Ex.Sapper
Mohinder Singh observed as under:-

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“In view of all the relevant
circumstances of the case we are
of the opinion that the Disability
Pension assessed at the rate of
40% by the Medical Board, which
had examined the appellant, should
be respected until fresh Medical
Board examines the appellant again
and comes to different
conclusion.”

¶37

Regulation 48(b) of the Pension
Regulations for Army Part-I provides
whether a disability attributable to or
aggravated by military service shall be
determined under Rules in Appendix-II.
Rule 4 thereof provides that in deciding
on issue of entitlement, all the
evidence, both direct and circumstantial
will be taken into account and benefit
of doubt will be given to the claimant
and this benefit will be given more
liberally to the claimant in field
service cases. Rule 7 provides for the

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guidance on the question of aggravation
and states that in cases where it is
established that conditions of military
service did not determine or contribute
to the onset of the disease but
influenced the subsequent course, the
disease would fall for acceptance on the
basis of aggravation. It further
provides that a disease which has led to
an individual's discharge from service
will ordinarily be deemed to have arisen
in service, if no note of it was made at
the time of individual's acceptance for
military service. However, if medical
opinion holds for reasons to be stated,
that the disease could not have been
detected on medical examination prior to
acceptance for service, the disease will
not be deemed to have arisen during
service.

¶39

The division bench of this Court in
Bhoora Ram, supra interpreted clause (b)
of Rule 7 in the terms that though there
is a presumption that a disease which
led to discharge, would be presumed to
have arisen in service if no note of it

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was made at the time of enrollment in
the military service. This presumption
however is not conclusive proof of a
fact. It was thus held that presumption
is always rebuttable which is evident
from the latter part of clause (b) that
if the Medical opinion holds to the
contrary, the disease will not be deemed
to have arisen during service. But that
judgement would not be relevant for
deciding the controversy involved in the
present case because it is not even the
case of the petitioner that the disease
is attributable to military service.
What is contended is that though the
disease is contracted by him during
military service, but this was
aggravated due to continued engagement
in the military service which he was not
fit enough to discharge. Rule 4 of the
Appendix II, supra thus assumes a
significance in the case of the present
nature which inter alia, provides that
cases in which it is established that
conditions of military service did not
determine or contribute to the onset of

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the disease but influenced the
subsequent course of disease, will fall
for acceptance on the basis of
aggravation. Even the respondents do not
dispute that medical category of the
petitioner was all along not down graded
and that he continued to discharge
normal duties and functions attached to
his office. It is also not shown as to
on what material and basis, the
Appellate Medical Authority disagreed
with the findings of the First Medical
Board which inter alia opined that
“Officer suffered from IHD on 07 Jan 92.
Coronary angiography carried out in
March 92 at Batra Hospital Delhi showed
triple vessel disease as brought out by
cardiologist in his opinion dated
3.3.92. Aggravation awarded due to
atheroma manifesting itself as IHD due
to failure in diagnosis resulting which
the officer allowed to perform duties in
higher medical category. Charter of
duties dt. 18 May 92 is attached.” The
opinion of the Medical Board thus was
based on consideration of two factors;

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one the kind of disease and second the
factors which contributed to its
aggravation. Atherosclerosis of coronary
blood vessels by the very nature of
disease would show that it develops over
a long period of time and is progressive
in nature. Its progression leading to
involvement of all triple vessels cannot
be said to develop suddenly and it takes
number of years to develop. The Medical
Board which made the first examination
of the petitioner thus formed its own
view about the disease from the first
hand impression and then it considered
the second aspect of the factors leading
to its aggravation which also included
the nature of duties discharged by the
petitioner in the immediate past.
Nothing has been brought on record as to
what was the basis on which the
Appellate Medical Authority reversed the
view taken by the First Medical Board.
Merely because the disease of IHD was
diagnosed when the petitioner was posted
in peace stations, the Appellate Medical
Authority would not be justified in

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holding that it did not aggravate due to
stress and strain during service and was
diagnosed and managed well in time.”
There are two requirements of Regulation

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173 of Pension Regulations for the Army Part-

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I, 1961 that (i) the disability must be

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attributable to or aggravated by military
service, (ii) that the disability should be
assessed at 20% or more. What is thus provided
for by Regulations 173 is that the disability
should be either attributable to or aggravated
by military service and the words “aggravated
by” are significant on this aspect, which
implies that even if a disability is not

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attributable to military service but is
aggravated thereby and if it is assessed at
20% or more, it would entitle the person
concerned of disability pension. Even if

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therefore a disability is not attributable to
military service but is aggravated thereby and

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is assessed at 20% or more, the same would
also entitle the person subject to Army Act to
disability pension. The respondents however
while resisting the claim of the petitioner
have relied on the corrigendum dated
21.6.1996, copy of which is placed at
Annexure-R/3 with their reply, which has
defined the competent authority for giving
medical opinion on the aspects of assessment
of disability and acceptance of death /

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disablement due to causes attributable to or
aggravated by military service. In respect of
initial claims of personnel below officer
rank, it is the Medical Advisor (Pension) Jt.
Director AFMS (Pension) attached to the office
of Chief Controller of Defence (Pension).

¶51

Though the respondents in their reply to the
writ petition have admitted that the Medical
Board while invalidating out the petitioner
opined that the disability suffered by him is

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not attributable to, but is aggravated by
stress and strain of military service and the
disablement was assessed at 20%, but they have
not disclosed as to what weighed with the

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Chief Controller of Defence Accounts (Pension)
in reversing that view of the Medical Board

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that the disability suffered by the petitioner
was aggravated by stress and strain of the
military service.

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In view of the judgment of this Court in
Brigadier (Retd.) V.K. Sarda Vr. Chakra and
the finality attached to the opinion of the
Medical Board, which had the first hand

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knowledge of medical condition of the

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petitioner having personally examined him and
in view of the fact that the respondents have
not produced before this Court any other

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material or justification showing why such an
opinion was reversed, the petitioner has
certainly made out a claim for disability

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pension.

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The writ petition is therefore allowed.

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The respondents are directed to grant to the
petitioner disability pension from the date of

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his discharge till date. However the delay in
filing of the writ petition cannot be

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otherwise ignored as two appeals were
dismissed in between. For that reason, the
petitioner is not awarded any interest on the
arrears of the disability pension. The

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respondents are directed to pay the arrears to
the petitioner within a period of three months
from the date of receipt of copy of this order
and are further directed to continue to pay
him disability pension on month to month
basis.

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Compliance of the judgement be made within
a period of three months from the date its
copy is produced before the respondents.
RS/ (MOHAMMAD RAFIQ), J.

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RS/

Ex-Pnr.Raghubir Mali v. UOI and Ors.

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Ex-Pnr.Raghubir Mali v. UOI and Ors.

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