Jasbir Singh vs Union Of India And Others

Being aggrieved by denial of disability pension, the applicant has filed the present Original Application under Section 14 of the Armed Forces

Tribunal Act, 2007, wherein he has sought for the following reliefs:

(i) Quash the impugned order dated 31 Jan 2018 passed by Respondent 2 being arbitrary, perverse and contrary to the settled law.

(ii) Direct the respondents to grant disability pension to the applicant @30% for life wef 01 Nov 2001.

(iii) Direct the respondents to give benefit of broad banding by rounding off disability element of disability pension from 30% to 50% wef

01 Nov 2001 with further direction to pay the arrears of disability element of disability pension wef the date of discharge i.e. 01 Nov 2001.

(iv) Pass any other or further order(s) which this Honible considers appropriate in the facts and circumstances of this case.

Briefly stated facts of the case are that the applicant was enrolled in Indian Army on 28.03.1984 and was discharged on in Low Medical Category.

At the time of retirement from service, the Release Medical Board (RMB) held at Base Hospital, Delhi Cantt, on 24.08.2001 assessed his disability

'Primary Hypertension 401' © 30% for two years and opined the disability as aggravated by military service, however the same was overruled by

PCDA (P) and the disability was considered as NANA. The applicant preferred petition for grant of disability pension but the same was rejected vide

letter dated 31.01.2018. It is in this perspective that the applicant has preferred the present O.A.

Learned Counsel for the applicant pleaded that at the time of enrolment, the applicant was found mentally and physically fit for service in the Indian

Army and there is no note in the service documents to show that the applicant was suffering from any disease at the time of enrolment in Army. At

the time of discharge, the Release Medical Board assessed the disability ""Essential Hypertension 401"" @ 30% for two years and considered as

aggravated by military service. However, the same was overruled by PCDA (P) and converted the disability as NANA. He submitted that PCDA (P)

has no jurisdiction to over ride the opinion of the RMB, who is the expert body to assess the degree and duration of disability as per the law settled by

Hontle Supreme Court in case of Ex Sapper Mohinder Singh Vs. UOI & Ors. in Civil Appeal No 164 of 1993 and pleaded that the applicant be

granted disability pension alongwith rounding off benefits and arrears thereof.

On the other hand, Ld. Counsel for the respondents contendedthat disability of the applicant i.e. Essential Hypertension 401 @ 300/c for two years

has been opined by RVIB, to be aggravated by military service, however the competent authority, ie., PCDA (P) had considered the disability as

NANA, hence he was not entitled to disability pension. He pleaded for dismissal of the O.A.

We have heard Ld. Counsel for the applicant as also Ld. Counsel for the respondents. We have also gone through the Release Medical Board

proceedings. The question which needs to be answered is whether PCDA (P) is entitled to overrule the opinion of Release Medical Board without

conducting another Medical Board?

This is a case where the RMB had conceded the disease 'Essential Hypertension 401 © 30% for two years and considered as aggravated by

Military Service, however the competent authority, i.e., PCDA (P) had considered the disability as NANA. However, the law on overruling the

opinion of a Medical Board is no more RES INTEGRA. The law on this issue has been settled by Hon'ble Court. The Hon'ble Apex Court has made

it very clear that the opinion of the Medical Board cannot be overruled by higher chain of command without physical medical examination of the

patient by a higher Medical Board. In this context the operative portion of the judgment of Hon'ble Apex Court in the case of Ex. Sapper Mohinder

Singh vs. Union of India in Civil Appeal No 104 of 1993 decided on 14.01.1993 is quoted below:-

From the above narrated facts 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 Applicant was subjected to any higher medical Board before the Chief Controller of Defence

Accounts (Pension) decided to decline the disability pension to the Applicant. 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.

In view of above we set aside the decision of PCDA (P), Allahabad for rejecting the claim of the applicant for grant of disability pension and are of

the considered opinion that the applicant was entitled to disability pension for disease 'Essential Hypertension 401' ©30% for two years from the

date of discharge.

Since the applicant's RMB was valid for two years w.e.f. 01.11.2001, however, the disease being of a permanent nature, it is to be deemed as an

RMB for life in light of Hon'ble Supreme Court Judgment in Civil Appeal No(s)5970 of 2019 Commander Rakesh Pande Versus Union of India,

decided on 28.11.2019.

In view of the above, the Original Application No. 1380 of 2018 deserves to be allowed, hence, allowed. The impugned order dated 31.01.2018,

enclosed at page 11 of the Original Application, is set aside. The disability of the applicant 'Essential Hypertension 401' is to be considered as

aggravated by military service for life. Applicant is granted disability element of pension @30% for life which be broad banded to @50% for life in the

light of decision of Honible Supreme Court in Union of India and Ors Vs Ram Avtar & ors (Civil appeal No 418 of 2012 decided on 10th December

2014) case. However, in view of decision of the Hon'ble Supreme Court in Union of India Vs. Tarsem Singh, reported in 2009 (1) AISLJ 371 with

regard to law of limitation, the applicant is entitled for the arrears of disability element only upto three years before the date of filing this Original

Application. The date of filing of this Original Application is 09.08.2018. Respondents are directed to give effect to the order within four months from

the date of receipt of copy of this order, failing which it shall attract interest @6% per annum till the date of payment.

No order as to costs.

Pending application(s), if any, also stands disposed of.

Pronounced in the open court on 13th March., 2020.