M. Venkatesh Perumal vs Union of India (UOI)

Heard both sides.

The present writ petition has been filed seeking to challenge the order of the 1st respondent dated 27.01.2000 and 04.12.2002 as well as the

order of the 3rd respondent dated 03.04.1998 and for a consequential direction to grant the petitioner disability pension. The writ petition was

admitted on 18.04.2005, but his prayer for interim direction was rejected by this Court. Pursuant to the notice from this Court the 3rd respondent

has filed a counter affidavit dated 28.09.2005.

It is seen from the records that the petitioner was enrolled in the Indian Army with effect from 06.04.1988 and has served for a total period of 8

years and 8 months. While he was serving with the 603 ASC Battalion (AM), he was admitted to the Command Hospital (Western Command) at

Chandimandir in two spells. In the first spell from 26.09.1995 to 19.10.1995, he was admitted on the ground of low back ache. In the second

spell from 12.12.1995 to 04.04.1996, he was admitted for complaint of PIVDL - 4/5 (OPLD).

Once again the petitioner was admitted to the Command Hospital Air Force, Bangalore on 22.08.1996 by his family members for unprovoked

physical aggression on his family members and neighbours. The senior Advisor Psychiatry diagnosed the ailment as a Schizophrenia. Therefore, he

was considered to be unfit for further service in the Indian Army by the Release Medical Board and was recommended for invalidating out of

service from the Army with effect 31.12.1996

In terms of the Army Rule 13(3) read with Item III (iii) of the Army Rules 1954, it is stated that if a person is found medically unfit for further

service, he can be discharged by the Commanding Officer but however, it has to be done only on the recommendation of the Invalidation Board. It

was also stated by the Release Medical Board that the disease which he had suffered was neither attributable to nor aggravated by military service.

It was a constitutional disease and not connected with the service. He was placed under the low medical category of EEE (Psy.) The Petitioner''s

case for disability pension was forwarded to the higher authorities.

However, he was informed by an order dated 03.04.1998 that his disability pension claim was adjudicated by the CCDA(P) Allahabad in

consultation with the medical advisor (Pension) attached to their office that his disability namely Schizophrenia was neither attributable to nor

aggravated by military service is constitutional nature and not related to service. He was also informed that under the existing rules he was not

eligible for any disability pension. He was also informed that he could file an appeal to the Government of India,(1st respondent) against that order.

The petitioner filed an appeal to the 1st respondent. The Government of India by its order dated 27.01.2000 rejected his appeal and informed

the petitioner accordingly. The operative portion of the order reads as follows:

The disability on account of which you were released from service is constitutional disorder. On perusal of your service/Medical documents, the

Appellate Medical Authority has found that the ID is not connected with service. There is no history of CNS infection/Trauma. There is no close

time relation with any service related stress to the onset of ID. In view of the fact that your disability has been regarded by the Medical Authorities

as neither attributable nor aggravated by duties of military service, you are not entitled to disability pension under the Rule.

The petitioner''s second appeal to the Union of India was also rejected by an order dated 04.12.2002. Rejection of his claim by these orders

had prompted the petitioner to file the present writ petition.

The learned Counsel for the petitioner submitted that the rejection of the petitioner''s claim was arbitrary and improper. He placed reliance upon

the Judgement of the J.&K. High Court reported in 2001 (1) J&K LRr 149 in Ex-Subedar Gurdass Singh v. Union of India and Ors. But that

case arose out of a disability caused due to an injury suffered when the petitioner in that case was travelling in a scooter which was hit by a tipper

lorry. The question arose in that case was whether the accident arose arising out of his employment and whether he was entitled for disability

pension on account of the injury suffered by him. It was in that context the J&K High Court held that the injury was directly attributable to service

and was eligible for pension.

Per contra, the learned Counsel for the respondents placed their reliance upon the unreported Judgement of the Division Bench in the case of

R. Paramasivam v. Union and India in W.A. No. 3143 of 2004 dated 27.06.2005, where in identical circumstances this Court refused to judicially

review the order of the Government rejecting the claim for disability pension.

In the aforesaid case in paragraphs 3 and 4, the Division Bench had observed as follows:

This Court cannot sit as a Court of appeal over administrative decisions. The scope of judicial review of administrative decisions is very limited.

It is true that while prior to 1947 the Courts would not undertake judicial review of administrative decisions, but after the historical decision of the

House of Lords in the Wednesbury case (Associated Provincial Picture Houses Ltd., v. Wednesbury Corporation (1947) 2 A.L.R.680 the law

was slightly changes and it was held that there can be judicial review of administrative decisions but that can only be done only on certain very

limited grounds, vide State of N.C.T. of Delhi and Another Vs. Sanjeev @ Bittoo, . The Court cannot ordinarily sit in appeal over the decision of

the administrator, but can only look into the manner of reaching the said decision. In the present case, we cannot question the decision of the

Medical Board and we cannot sit in appeal over the same.

Our view get support from the decision of the Supreme Court in Union of India (UOI) and Another Vs. Baljit Singh, and the decision of the

Punjab and Haryana High Court in Gurdip Singh (retd.) Subedar (Rony Lt) v. Union of India 1997 (5) SLR 341.

Without going into the issue of limited judicial review, it may be stated that in Union of India (UOI) and Another Vs. Baljit Singh, , the

Supreme Court had analysed Rule 173 of the Pension Regulations for the Army. It was observed that where the Medical Board found that there

was absence of proof of the injury/illness having been sustained due to military service or being attributable thereto, the High Court''s direction to

the Government to pay disability pension was not correct. It is necessary to refer to the following passage found in paragraph 6 of the order:

6....... It is seen that various criteria have been prescribed in the guidelines under the Rules as to when the disease or injury is attributable to the

military service. It is seen that under Rule 173 disability pension would be computed only when disability has occurred due to wound, injury or

disease which is attributable to military service or existed before or arose during military service and has been and remains aggravated during the

military service. If these conditions are satisfied, necessarily the incumbent is entitled to the disability pension. This is made ample clear from clause

(a) to (d)of para 7 which contemplated that in respect of a disease the Rules enumerated thereunder required to be observed. Clause (c) provides

that if a disease is accepted 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. Unless these conditions satisfied, it

cannot be said that the sustenance of injury per se is on account of military service. In view of the report of the Medical Board of Doctors, it is not

due to military service. The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on

account of military service. In each case, when a disability pension is sought for made a claim, it must be affirmatively established, as a fact, as to

whether the injury sustained was due to military service or was aggravated which contributed to invalidation for the military service.

A similar question arose before the Allahabad High Court in respect of an Army Rifleman. In that case, the said person was enrolled as

Rifleman on 15.11.1976 and was discharged from Army on 18.10.1986. It was found that he was suffering from Schizophrenia and the Medical

Board''s report indicated his non-suitability for continuance in the army. Medical Board opined that the disability did not exist before entering

service and it was not connected with service. An appeal was preferred before prescribed appellate authority which was dismissed on

16.04.1989. The said person filed a writ petition which was allowed by learned Single Judge and the special appeal was dismissed. Both learned

Single Judge and the Division Bench held that it was not mentioned at the time of entering to army service that the said person suffered from

Schizophrenia and therefore it was attributable to army service. Both learned Single Judge and the Division Bench of the Allahabad High Court

referred to para 7(b) of the Appendix II referred to in Regulations 48, 173 and 185 of the Pension Regulations, 1961 to hold that if any disease

has led to the individuals discharge it shall be ordinarily deemed to have arisen in the service if no note of it was made at the time of the individual''s

acceptance for military service. Accordingly, it was held that the respondent was entitled to disability pension.

The said question was taken up before the Supreme Court by the 1st respondent Union of India. The Supreme Court reversed the decisions of

the High Court vide its decision in the case of Union of India and Ors. v. Keshar Singh reported in AIR 2007 SCW 2760. Paragraph 11 of the

said Judgement may be usefully extracted below:

In view of the legal position referred to above and thefact that the Medical Board''s opinion was clearly to the effect that the illness suffered by the

respondent was not attributable to the military service, both the learned Single Judge and the Division Bench were not justified in their respective

conclusion. The respondent is not entitled to disability pension. However, on the facts and circumstances of the case, payment already made to the

respondent by way of disability pension shall not be recovered from him. The appeal is allowed but in the circumstances without any order as to

costs.

Onceagain, the Supreme Court in its latest decision quoted with approval the Keshar Singh''s case (cited supra) in Union of India (UOI) and

Others Vs. Surinder Singh Rathore, . In paragraph 9 of the Judgment, it has been observed as follows:

''The Medical Board''s opinion was clearly to the effect that the ailment suffered by the appellant was not attributable to the military service and

also not aggravated due to it. Learned Single Judge and the Division Bench were not justified in holding that the same was attributable to Military

service and/or was aggravated because of service. The respondent is not entitled to disability pension. However, on the facts and in the

circumstances of the case payment, if any, already made to the respondent by way of disability pension, shall not be recovered.

In the light of the above, there is no case made out for interfering with the impugned orders passed by the respondents. Accordingly, the writ

petition will stand dismissed. However, there will be no order as to costs.