Dhiraj Lal vs Union Of India & Others

Manoj K. Tiwari, J

Petitioner served in Assam Rifles between 20.05.1986 to 01.11.2006 and defended the borders of the country. When he lost vision in both his eyes he was discharged from service on medical ground, on 01.11.2006. His character has been certified as exemplary in the discharge certificate issued on 07.12.2006. Since, he has been denied disability pension, therefore, petitioner, has approached this Court seeking the following reliefs:-

"I. Issue a writ order or direction in the nature of mandamus directing and commanding the respondents to forthwith release the disability pension of petitioner including commutation of pension which has been withheld till date alongwith 12% interest on the delayed payment of the said benefits.

II. Issue a writ order or direction in the nature of certiorari for quashing the impugned order dated 06.11.2008 passed by the Respondent.

III. Issue a writ order or direction in the nature of mandamus directing and commanding the respondents to produce the medical records or the medical proceedings declaring the case of Petitioner disentitled for the grant of disability Pension."

It is submitted on behalf of the petitioner that at the time of his enrolment in Assam Rifles, he was a young healthy boy of less than 17 years of age. It is further submitted that petitioner was subjected to thorough medical/physical examination at the time of his enrolment and no note of any disability or disease was made by the Medical Board at the time of his acceptance for service in Assam Rifles. It is further submitted that ground taken by the respondents for disallowing petitioner's claim for disability pension is not acceptable for the reason that petitioner acquired the disability after rendering exemplary service of more than 20 years, which would not have been possible, if petitioner suffered from any disease/deformity at the time of his entry into service.

Learned counsel for the petitioner submits that serviceman in Army/Para Military Forces are subjected to medical examination at regular intervals to ensure that only those, who are mentally and physically fit are given the combat duties. She further submits that as per the medical certificate issued by Chief Medical Officer, Dehradun, petitioner's visual disability is to the extent of 100%. She further submits that since it is a permanent disability, therefore, petitioner needs an attendant throughout his life to look after him.

At the time of his discharge, invalid pension of ` 1913/- per month was sanctioned to the petitioner, which according to the petitioner was released to him after more than a year of his discharge. Since, petitioner has three children besides his wife and the amount of invalid pension was barely sufficient to make both ends meet, therefore, petitioner prayed for grant of disability pension.

His prayer was rejected by the Competent Authority vide order dated 06.11.2008. Contents of the said order are extracted below for ready reference:-

"1. Reference your letter No. SD/B-DL dated 13 Oct 2008.

It is to inform you that, Ex. No. 104250 Rfn/GD Dhiraj lal was enrolled in Assam Rifles on 20 May 1986 and after rendering 19 years, 03 months and 12 days of qualifying service he discharged on medical ground wef. 31 Oct 2006 (AN) as a diagnosis "Immune Surveillance with Primary CNS Lymphoma leading to complete blindness."

At the time of discharge he was granted invalid pension @ Rs. 1913/- pm (Rupee one thousand nine hundred thirteen only) wef. 01 Nov 2006 with relief in pension retirement gratuity of Rs. 76031/- (Rupees seventy six thousand thirty one only) and Commutation of pension Rs. 1,47,707/- (Rupees one lakh forty seven thousand seven hundred seven only) as admissible.

The above pensioner is not eligible for grant of disability pension in terms of para 3-A(1) of CCS (Extraordinary Pension) Rules 1972 as his disablement was not attributable or aggravated to Assam Rifles service.

It is further intimated that the case for Constant Attendant Allowance has already been submitted to Pay and Accounts Office (Assam Rifles) for their necessary action and the out come will be intimated to the pensioner on hearing from them."

From perusal of rejection order dated 6.11.2008, it is apparent that the respondents have admitted that petitioner has become completely blind. It also discloses that petitioner's case for Constant Attendant Allowance has been submitted to the Competent Authority and as and when a decision is taken by the Competent Authority, petitioner shall be informed. His prayer for disability pension, however, has been rejected merely by stating that "his disablement was not attributable or aggravated to Assam Rifles Service".

Accounts Officer, Ministry of Home Affairs, Government of India vide order dated 17.11.2008 turned down the request made by the Competent Authority in Assam Rifles for paying Constant Attendant Allowance to the petitioner. The only reason indicated for denying Constant Attendant Allowance to the petitioner was that since he was granted invalid pension and not disability pension, therefore, he is not eligible for the said allowance. In other words, if petitioner was granted disability pension, then he would have become entitled for Constant Attendant Allowance.

It is the contention of learned counsel for the petitioner that petitioner was absolutely healthy at the time of his entry into Assam Rifles Service. She further submits that whatever disease/disability was acquired by the petitioner was while serving in treacherous and inhospitable border areas.

Learned counsel for the petitioner has referred to the guidelines issued by the Central Government known as "Guidelines for Conceding Attributability of Disablement or Death to Government Service" which, according to her, have been treated as part of the Central Civil Services (Extraordinary Pension) Rules, 1972. Relevant paragraphs of those guidelines are extracted below:

"2. In deciding on the issue of entitlement, all the evidence (both direct and circumstantial) will be taken into account and the benefit of reasonable doubt will be given to the claimant. This benefit will be given more liberally to the claimant in field service cases.

5(a). Cases, in which it is established that conditions of Government service did not determine or contribute to the onset of the disease but influence the subsequent course of the disease, will fall for acceptance on the basis of aggravation.

5(b). A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of the individual's acceptance for Government 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.

5(c). If a disease is accepted as having arisen in service, it must also be established that the conditions of Government service determined or contributed to the onset of the disease and that the conditions were due to the circumstances on duty in Government service.

5(d). In considering whether a particular disease is due to Government service, it is necessary to relate the established facts, in the etiology of the disease and of its normal development, to the effect that conditions of service, e.g., exposure, stress, climate, etc., may have had on its manifestation. Regard must also be had to the time factor."

6(a). Whether unforeseen complications arise as a result of treatment (including operative treatment) given for the purpose of rendering a member fit for service duties, any disablement resulting will normally be accepted as attributable to service.

6(b). Where the treatment is given for other reasons, the position regarding any unforeseen complications differs according as the condition which necessitated treatment was or was not, either attributable to or aggravated by service. If it was so attributable or aggravated, any disablement resulting from the treatment, it will normally be accepted as attributable to service. If it was not, no responsibility will be accepted for the additional disablement unless neglect, delay, faulty technique or lack of reasonable skill can be held responsible for the untoward outcome, or the exigencies of service before, during or after the treatment can be held to have cause or aggravated the condition.

6(c). The above considerations apply whether the treatment is given in a service hospital or under service arrangements in any other hospital but will not apply if the treatment is undertaken under private arrangement by an individual."

Learned counsel for the petitioner has further referred to Form-C given in the CCS (Extraordinary Pension) Rules, 1972 which requires the Medical Board to consult the proceedings of the previous Medical Board, if any, and also previous Medical/Hospital documents connected with the Government servant brought before them. According to learned counsel, the procedure given in Form-C was not followed by the Medical Board.

Learned counsel for the petitioner has further referred to Clause 4 (c) of Part-B of CCS (Extraordinary Pension) Rules, 1972 which requires the Officer Commanding the Unit to indicate as to whether the disability/death was due to infection and, if yes, whether there is any evidence that the exposure was due to negligence or misconduct on the part of the Government servant and further that whether the Government servant concerned was living in unit lines and was he permitted to live outside with his family.

Learned counsel for the petitioner submits that disability was acquired by the petitioner while serving in Assam Rifles and with the gradual onset of blindness, he was treated in the Assam Rifles Hospital and he throughout stayed inside the unit and he never lived with his family, which was stationed at Chamoli (Uttarakhand).

Learned counsel for the petitioner has referred to the Medical Board Proceedings, which invalidated the petitioner on medical grounds, which is part of record as Annexure CA-5 to the counter affidavit. In Clause 3 (a) of the said proceedings, the Medical Board has opined that the disability is not attributable to petitioner's own negligence or misconduct. In Clause 3(b), in reply to the question as to whether the disability was aggravated by negligence or misconduct of the petitioner, the Medical Board has opined that "the disease has its own cause and progress to 100% disablement of complete blindness". In Clause 4, the Medical Board has assessed the extent of disability suffered by the petitioner as 100%. In Clause 5 of the proceedings, the Medical Board has opined that petitioner needs life long treatment and, in Clause 6, it has been observed that petitioner needs an Attendant permanently throughout his life.

A counter affidavit has been filed on behalf of Assam Rifles, in which the principal defence taken is that petitioner is suffering from H.I.V. which is not a result of service conditions; but it is attributed to other human factors and negligence on part of the petitioner himself to take precautions. Paragraph 11 of the counter affidavit is extracted below:-

"11. That the contents of paragraph 11 writ petition are not admitted and are denied. The findings of the medical board that the disability suffered by petitioner cannot be attributable to service condition is based on the facts that petitioner was detected to be suffering from HIV/AIDS which led to loss of eye sight. The HIV/ AIDS disease is not a result of service conditions but is attributed to other human factors and negligence on part of individual himself to take precautions while indulging in sexual activities with unknown persons. The medical board has specially mentioned in part II of the proceedings that "This indl who is in advanced, HIV infection with AIDS defining illness and completely blind is unfit for Military duties. Recommended to be invalided out of service in Cat E (EEE) for immune Surveillance with primary CNS lymphoma leading to complete blindness." Therefore, the disablement of blindness was not due to service conditions but was due to self acquired disease of AIDS. The finding of the medical board are as per the policy instructions on the subject. Thus there is nothing arbitrary or illegal in the findings of the invaliding medical board."

Learned counsel for the petitioner submits that the stand taken by the respondents in their counter affidavit is in variance with the report of the Medical Board, which has been enclosed with the counter affidavit as Annexure CA-5. She submits that the stand taken by the respondents in the counter affidavit is contrary to the opinion expressed by the Medical Board under Clause 3(a), where the Medical Board has observed that the disability is not attributable to individual's own negligence or misconduct. She, therefore, submits that the respondents cannot be permitted to develop a new case contrary to the opinion expressed by the Medical Board, which examined the petitioner at the time of invalidating him out from service. She further submits that even if there is any doubt as to whether the disability is attributable to service or not, then benefit of doubt has to be given to the petitioner in view of para 2 of the guidelines issued by the Central Government under the CCS (Extraordinary Pension) Rules, 1972 which have already been adverted to.

Learned counsel for the petitioner has relied upon the judgment rendered by Hon'ble Supreme Court in the case of Dharamvir Singh Vs. Union of India and others, reported in (2013) 7 SCC 316, in which Hon'ble Supreme Court, upon considering the provisions contained in the guidelines to Medical Officer regarding grant of Military Pension, held that a member of service is to be presumed to be in sound physical and mental condition at the time of entering service, if there is no note or record regarding his illness at the time of entrance and, in the event of his subsequently being discharged from service on medical grounds, deterioration in his health is to be presumed due to service and further that the onus of proof is not on the claimant/employee and the onus of proof that ex-serviceman is not entitled to disability pension is upon the employer and further that claimant is entitled to benefit of any reasonable doubt and is entitled for pensionary benefits more liberally. Paragraph no. 29 of the said judgment is extracted below:-

"29. A conjoint reading of various provisions, reproduced above, makes it clear that:

29.1. Disability pension to be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable to or aggravated by military service to be determined under the Entitlement Rules for Casualty Pensionary Awards, 1982 of Appendix II (Regulation 173).

29.2. A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be presumed due to service [Rule 5 read with Rule 14(b)].

29.3. The onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for non-entitlement is with the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally (Rule 9).

29.4. If a disease is accepted to have been 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 [Rule 14(c)].

29.5. If no note of any disability or disease was made at the time of individual's acceptance for military service, a disease which has led to an individual's discharge or death will be deemed to have arisen in service [Rule 14(b)].

29.6. If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and that disease will not be deemed to have arisen during service, the Medical Board is required to state the reasons [Rule 14(b)]; and

29.7. It is mandatory for the Medical Board to follow the guidelines laid down in Chapter II of the Guide to Medical Officers (Military Pensions), 2002 - "Entitlement: General Principles", including Paras 7, 8 and 9 as referred to above (para 27)."

Learned counsel for the petitioner has placed reliance upon another judgment rendered by Hon'ble Supreme Court in the case of Union of India and others Vs Manjeet Singh, reported in (2015) 12 SCC 275. Paragraph No. 30 of the said judgment is extracted below:-

"30. The last in the line of the rulings qua the dissensus has been pronounced in a batch of civil appeals led by Civil Appeal No. 2904 of 2011; Union of India v. Rajbir Singh in which this Court on an exhaustive and insightful exposition of the aforementioned statutory provisions had observed with reference as well to the enunciations in Dharamvir Singh v. Union of India, that the provision for payment of disability pension is a beneficial one and ought to be interpreted liberally so as to benefit those who have been boarded out from service, even if they have not completed their tenure. It was observed that there may indeed be cases where the disease is wholly unrelated to Army service but to deny disability pension, it must affirmatively be proved that the same had nothing to do with such service. It was underlined that the burden to establish disability would lie heavily upon the employer, for otherwise the Rules raise a presumption that the deterioration in the health of the member of the service was on account of Army service or had been aggravated by it. True to the import of the provisions, it was held that a soldier cannot be asked to prove that the disease was contracted by him on account of Army service or had been aggravated by the same and the presumption continues in his favour till it is proved by the employer that the disease is neither attributable to nor aggravated by Army service. That to discharge this burden, a statement of reasons supporting the view of the employer is the essence of the Rules which would continue to be the guiding canon in dealing with cases of disability pension was emphatically stated. As we respectfully, subscribe to the views proclaimed on the issues involved in Dharamvir Singh and Rajbir Singh as alluded hereinabove, for the sake of brevity, we refrain from referring to the details. Suffice it to state that these decisions do authoritatively address the issues seeking adjudication in the present appeals and endorse the view taken by us."

Learned counsel for the petitioner has placed reliance upon yet another judgment rendered by Hon'ble Supreme Court in the case of Union of India and another Rajbir Singh reported in (2015) 12 SCC 264. Paragraph No. 16 of the said judgment is extracted below:-

"16. Applying the above parameters to the cases at hand, we are of the view that each one of the respondents having been discharged from service on account of medical disease/disability, the disability must be presumed to have been arisen in the course of service which must, in the absence of any reason recorded by the Medical Board, be presumed to have been attributable to or aggravated by military service. There is admittedly neither any note in the service records of the respondents at the time of their entry into service nor have any reasons been recorded by the Medical Board to suggest that the disease which the member concerned was found to be suffering from could not have been detected at the time of his entry into service. The initial presumption that the respondents were all physically fit and free from any disease and in sound physical and mental condition at the time of their entry into service thus remains unrebutted. Since the disability has in each case been assessed at more than 20%, their claim to disability pension could not have been repudiated by the appellants."

Learned counsel for the petitioner has then relied upon a recent judgment rendered by Hon'ble Supreme Court in the case of Ex. GNR. Laxmanram Poonia (Dead) through LRS Vs. Union of India and others rendered in Civil Appeal No. 2633 of 2017, in which the appellant was suffering from acute schizophrenia like psychotic disorder. Paragraph No. 22 of the said judgment is extracted below:-

"22. In the present case, it is undisputed that the appellant was not suffering from any disease/ disability at the time of entering into Military Service. It was on the respondent to show that the appellant was suffering from schizophrenia at the time of entering into service by producing any document viz. medical prescription etc. In the absence of any note in the service record in this regard at the time of joining the Military Service, the Medical Board should have called for the service records and looked into the same; but nothing is on record to suggest that any such record was called for by the Medical Board to arrive at the conclusion that the disability was not due to Military Service. The Medical Board simply stated that the disability is neither attributable to nor aggravated by Military Service. The relevant portion reads as under: "1. Though the disablement has been mentioned in percentage in para 6 of Part V, this does not mean eligibility for disability pension since the Disability/Disabilities is/are neither attributable to nor aggravated by service"

Opinion of assessment by the Board is recommendatory in nature and is subject to acceptance by Pension Sanctioning Authority." In the absence of any evidence on record to show that the appellant was suffering from any such disease like schizophrenia at the time of entering into the Military Service, it will be presumed that the appellant was in a sound mental condition at the time of entering into the Military Service and the deterioration of health has taken place due to Military Service."

Learned counsel for the respondents submits that petitioner served in Assam Rifles and no cause of action has arisen within State of Uttarakhand; the Directorate of Assam Rifles is located at Shillong, which is outside the territorial jurisdiction of this Court; therefore, this Court has no jurisdiction to hear and decide this writ petition.

In reply, learned counsel for the petitioner submits that Assam Rifles is a Para Military Force of the Central Government which, like the Indian Army, defends the borders of the country. She further submits that persons from all over the country are enrolled in Assam Rifles and they are liable to be posted anywhere in the country. She, therefore, submits that law declared by Hon'ble Supreme Court in respect of army personnel will apply to personnel of Assam Rifles with equal force. Learned counsel for the petitioner has relied upon the judgment rendered by Hon'ble Supreme Court in the case of Dinesh Chandra Gahtori Vs. Chief of Army Staff and another, reported in (2001) 9 SCC 525. Paragraph No. 4 of the said judgment is extracted below:-

"4. The writ petition was filed in 1992. The impugned order was passed in 1999. This is a fact that the High Court should have taken into consideration. More importantly, it should have taken into consideration the fact that the Chief of Army Staff may be sued anywhere in the country. Placing reliance only on the cause of action, as the High Court did, was not justified."

Learned counsel for the petitioner has then referred to a judgment rendered by a Division Bench of Hon'ble Bombay High Court in the case of Bhagwan Shivram Gupte Vs Union of India and others (Writ Petition 3067 of 2005). Petitioner, in that case, was serving in Coast Guard, who was terminated from service on the ground that he was suffering from H.I.V. and Hon'ble Bombay High Court directed for his reinstatement. Paragraph Nos. 7, 8, 9 & 10 of the said judgment are extracted below:-

"7. We fail to understand the propriety of the request to constitute a Medical Board again to examine as to whether the petitioner is fit or not. The Medical Board itself after thorough examination has given opinion on 16th September, 2017 that the petitioner is medically fit to discharge his duties. Not only that but the perusal of Column 8 of the Medical Board report would also reveal that the Board had further opined that there is possibility of further improvement of the Petitioner due to availability of newer Antiretroviral Drugs (ART). It could, thus, be seen that the report itself states that apart from the Petitioner being fit on the date of examination there is also possibility of further improvement in the health of the Petitioner. The said report has already been approved by the Director General of Indian Coast Guard.

Merely because there has been delay on the part of this Court in considering the said report and pass the orders forthwith, we find that the Petitioner should not be made to undergo further examination. The petitioner is personally present in the Court and we find him to be physically fit to discharge his duties, taking into consideration that he has to work as unskilled labour and discharge the duties of sweeping etc.

In that view of the matter the petition is allowed.

The Respondents are directed to forthwith reinstate the Petitioner on the post from which he was terminated, however, without backwages. The Petitioner would be entitled to continuity in service and all promotional benefits treating the termination to be void."

In the present case, petitioner's claim for disability pension has been cursorily rejected merely by observing that his disability is not attributable to Assam Rifles Service. There is no note of any disability or disease in the medical record prepared at the time of petitioner's acceptance into Assam Rifles Service in terms of Clause 5(b) of the guidelines issued by the Central Government (Supra). A member of service is presumed to be in sound physical and mental condition at the time of entry into service if there is no note or record made at the time of his entry, as held by Hon'ble Supreme Court in aforesaid judgments.

In view of the law laid down by Hon'ble Supreme Court in the case of Dharamvir Singh (Supra), cursory rejection of petitioner's claim for disability pension cannot be sustained.

Accordingly, the writ petition is allowed and the impugned order dated 06.11.2008 is quashed. The Competent Authority in Assam Rifles is directed to re-consider petitioner's claim for disability pension, in accordance with law, within eight weeks from the date of production of certified copy of this order.