Ex-Spr Chaini Singh vs Union of India

R.L. Anand, J.—Ex-Spr. Chaini Singh has filed the present writ petition under Articles 226/227 of the Constitution of India praying that a writ of certiorari be issued in his favour by quashing the orders dated 21.4.1997 Annexure P3, dated 26.11.1999 Annexure P9 and a writ of mandamus be issued against the respondents directing them to grant him the benefits of disability pension along with other benefits.

The case set up the petitioner is that he was enrolled in the Army on 20.8.1980. Tn the year 1985, when he was posted in a field area, he developed health problems and was admitted to 160 Military Hospital and was diagnosed as a case of multiple Renal Calculus (RT) OPTD. On 4.2.1986 he again fell ill and was admitted in Military Hospital, Jalandhar and was detected a case of Ureteric Calculus Right OPTD. He was operated upon 10.2.1986 and by the Medical Board he was downgraded to medical category CEE (permanent) for 2/12 years. He was discharged from the hospital On 27.2.1986. Again he fell seriously ill when he was doing duties at a field station and was admitted to Base Hospital at Tejpur on 22.9.1993. In the month of October 1993 he was transferred to Command Hospital, Calcutta and on 29.10.1993 he was again operated upon. On 17.11.1993, he was discharged from the hospital. A Medical Board was constituted on 27.1.1994 and he was downgraded to category CEE (T) for a period of 3/12 years. The Medical Board opined that the disability was contracted in service and it was contracted in the circumstances over which the petitioner had no control and the disability has aggravated in the military service and is due to dielic compulsions of service. It is also the case of the petitioner that he was admitted to Military Hospital, Allahabad in the month of August 1994 and was transferred to Command Hospital, Lucknow, where he was operated upon third time on 17.11.1994, He was discharged from the hospital on 22.12.1994 and his medical category continued as CEE (P) for 3/12 years. On 24.10.1995, the petitioner appeared before a release medical board and his medical category was downgraded to category CEE (P) and he was diagnosed as a case of Bilateral Multiple Renal Calculi. He was recommended to be released from the Army service in category CEE(P) on medical grounds with more than 40% disability. Finally, on 31.12.1995 he was discharged from the Army on medical grounds after rendering a service of 15 years and 4 months. He made a prayer for the release of disability pension, which was declined vide letter dated 21.4.1997 on the plea that the disease was neither attributable noraggra-vated to the Army service. The petitioner filed an appeal and also made a representation. He also filed a writ petition in the High Court seeking directions of the Court against the respondents for deciding his appeal as early as possible and now appeal has been rejected on 26.11.1999. Hence the present writ petition.

Notice of the writ petition was given to the respondents, who filed the written statement and denied the allegations. According to the respondents, the petitioner submitted his unwillingness to continue in service against sheltered employment being provided to him and, therefore, he was brought before Release Medical Board on 24.10.1995 and on approval he was discharged from service on 15.12.1995. The other stand ofthe respondents is that the disease suffered by the petitioner is not attributable to Army service and, therefore, he is not entitled to the benefits of disability pension.

I have heard Mr. Sandeep Bansal, Advocate on behalf of the petitioner, Ms. Ranjna Sahi, Additional Standing Counsel on behalf of the Union of India and with their assistance have gone through the records of the case.

The sole point for determination in this case is whether the disease suffered by the petitioner is attributable to Army service or not. In support of his contention that the disease suffered by the petitioner is attributable to Army service, the learned counsel appearing on behalf of the petitioner referred to Annexure P2, the opinion of the Medical Board, which held its meeting on 28.1.1994 and opined that the disease suffered by the petitioner is a contracted one and has occurred on account of dietic compulsions of service. It is the admitted case of the parties that the disability suffered by the petitioner was more than 40%.

Now the only point for determination is also whether the petitioner was boarded out from the service on account of medical ground or he voluntarily expressed his willingness that he was not interested to serve the Army. The learned counsel appearing on behalf of the respondents referred to Annexure R2 and submitted that the petitioner gave an undertaking that he was not willing to Continue in service on being given alternative employment on his being placed in permanent low medical category CEE and, therefore, it should be inferred that the petitioner was not willing to serve the Army and thus he is not entitled to the benefit of disability pension. The submission made by the counsel for the respondents is misconceived and cannot be accepted. The petitioner was placed in medical category CEE (P) and, in these circumstances, under the rules, it was obligatory on the part of the respondent-authorities to offer sheltered employment to the petitioner. Option lies with the petitioner either to accept it or not. When the petitioner did not accept the sheltered employment on account of his placement in category CEE (P), he was discharged from the Army. In these circumstances, it can be reasonably inferred and concluded that the petitioner was boarded out from the service on account of his disability. From the certificate Annexure P2 it is evident that the disease suffered by the petitioner is directly attributable to Army service.

In these circumstances, this writ petition is allowed by setting aside the impugned orders and directions are given to the respondents to release the benefits of disability pension to the petitioner w.e.f. 1.1.1996 as per rules within three months from the receipt of the copy of the order, failing which the petitioner shall also be entitled to interest @ 12% per annum.

No order as to costs.

Copy Dasti.

Petition allowed.