Pradeep Kumar vs Union Of India And Others

Through the medium of the instant Original Application, the applicant seeks the following reliefs:

(a) Call for the records based on which the respondents have denied disability pension to the applicant as evident from the impugned order dated

13.05.2017 relying upon the order dated 02.03.1996 and thereafter quash the same;

(b) Direct the respondents to process the claim of the applicant for grant of disability pension consisting of service element and disability element and

grant the same from the date of his discharge with effect from 31.05.1995 and same be granted to him by granting him the benefit of broad banding

from 20% to 50% and pay the same along with arrears with interest g 18% as expeditiously as possible.

Brief facts of the case are that the applicant was enrolled in the Indian Army on 17.04.1989 and was discharged from service in low medical

category with effect from 31.05.1995 under Rule 13(3) Item III(v) read with sub clause 2(A) of the Army Rules, 1954. A Release Medical Board

(RMB) was conducted on 08.12.1994, wherein his disability ""Low Back Ache"" was recorded as aggravated by military service and the percentage of

the disability was assessed at 20% for life. The competent authority, vide order dated 01.02.1996, rejected the claim of the applicant for disability

pension. Further, the applicant was advised to prefer an appeal to the Government of India against the rejection of disability pension within six months

from 17.02.1996 on such grounds as he deemed fit to put forth, if he so desired. It is in this perspective that the applicant has preferred the present

O.A.

Learned counsel for the applicant submitted that the applicant was fully fit at the time when he was enrolled in the Army. He had picked up these

diseases due to stress and strain of service. Learned counsel further pointed out that the applicant was invalided out without getting the opinion of the

Invalidating Medical Board, which is illegal. In this regard, he drew our attention to decision of the Hon'ble Supreme Court in Union of India and

others v. Rajpal Singh, 2008 (5) ESC 718 (SC), wherein it is made clear that the respondents erred in releasing the individual through RMB and he

should have been released through Invaliding Medical Board (IMB). Therefore, the release of the applicant is to be deemed as invalided out of

service.

On the other hand, learned counsel for the respondents conceded that the disability of the applicant had been opined to be aggravated by military

service, by the RMB. Counsel contended that disability 'low back ache' of the applicant has been regarded as NANA by the competent authority,

hence he is not entitled to disability pension for the said disability. He also contended that since the competent authority has considered the disability

low back ache' as neither attributable to nor aggravated by military service, as such his claim for disability pension has been rightly rejected in

accordance with Para 173 of the Pension Regulations for the Army, 1961 (Part-I), which clearly states that disability pension is admissible to an

individual who is invalided out from service on account of disability, which is attributable to or aggravated by military service and is assessed at 20% or

more. He pleaded for dismissal of the O.A.

Having heard the learned counsel for both the parties and perused the records made available to us, the following two questions fall for our

consideration:

(i) whether the applicant's disability is aggravated by military service?

(ii) Whether the applicant is entitled to disability pension consisting of service element and disability element of pension with effect from the date of his

discharge from service?

We notice that in the instant case, the RMB had opined that the disability of the applicant to be aggravated by military service due to stress and

strain of military service. However, the competent authority has overruled the opinion of the RMB and declared the disability of the applicant 'low

back ache' as neither attributable to nor aggravated by military service. The issue of sanctity of the opinion of a Medical Board and its overruling by a

higher formation is no more res Integra. The Honble Supreme Court has made it clear that without physical medical examination of the patient, a

higher formation cannot overrule the opinion of a Medical Board. Therefore, in light of the observations made by the Hon'ble Supreme Court in Ex

Sapper Mohinder Singh v. Union of India and others (Civil Appeal No 104 of 1993 decided on 14.01.1993), we are of the considered opinion that the

decision of competent authority overruling the opinion of RMB is illegal. The relevant portion of the aforesaid judgment is reproduced 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 the above, we are of the view that the disability ""of the applicant viz. """"low back ache"""" @ 20% for two years is to be"" considered as

aggravated by service, in line with the opinion of the Medical Board at the time of discharge. Additionally, the applicant is entitled to the benefit of

broad banding in terms of Union of India and others v. Ram Avtar (Civil Appeal No. 418 of 2012 decided on 10.12.2014). Hence, his disability ©

20% for life shall stand rounded off to 50% for two years with effect from 01.01.1996. We have also noticed that this is a case of discharge through

RMB for reasons of low medical category. The Hon'ble Supreme Court has clearly settled the law on this matter vide Rajpal (supra). Hence we are

of the opinion that the discharge of the applicant is to be treated as invalidation.

Resultantly, the 0.A is allowed. The impugned orders are set aside. The applicant's disability is to be considered as aggravated by military service.

Additionally, his discharge is to be treated as invalidation. However, the applicant has approached this Tribunal after considerable delay. His 0.A has

been admitted on grounds of recurring loss being a case of disability pension. Hence his benefits of arrears will be limited to three years before filing

this 0.A in terms of the law settled on this issue vide the Honible Supreme Court's judgment in Shiv Dass v. Union of India and others (2007 (3) SLR

445). The date of filing of the 0.A is 25.07.2017. Thus, in the final analysis, the applicant is entitled to three years of arrears of service element of

disability pension prior to filing this O.A. His future entitlement to disability element will be subject to the outcome of the RSMB by the respondents.

The respondents shall conduct the RSMB within three months from the date of receipt of a copy of this order. Ordered accordingly. The respondents

are directed to give effect to this order within a period of four months from the date of receipt of a copy of this order. Default will invite interest @

8% per annum.

No order as to costs.

Pronounced in Open Court on 16th September 2019.