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Judgment
Aggrieved by the impugned order dated 07.09.2016, denying him disability element of pension, the applicant has filed the instant 0.A seeking the
following reliefs:
(a) Set aside the impugned order dated 07.09.2016 passed by the Respondents;
(b) Direct the Respondents to treat the disability with which the Applicant is suffering as Attributable to or Aggravated by military service;
(c) Direct the Respondents to grant disability pension to the Applicant w.e.f. 01.04.1997;
(d) Direct the Respondents to pay disability pension to the Applicant atleast @ 50% for life vv.e.f.01.04.1997 by rounding off the Applicant's disability
as per Govt policy on broad banding/Rounding off.
(e) Direct the Respondents to pay 10% interest on the arrears of disability pension w.e.f. 01.04.1997; and
(f) Issue such other order(s)/direction(s) as may be deemed appropriate in the facts and circumstance of the case.
The facts of the case, in brief, are that the applicant was commissioned in the Indian Army on 02.03.1968 (SSC) and granted permanent
commission on 02.03.1973 and vvas retired from service on 31.03.1997 (AN) in low medical category after attaining the age of superannuation. The
Release Medical Boarc, (RMB) assessed his disability Primary Hypertension @ 30% for 2 years to be aggravated by military service. After
discharge, though the applicant is in receipt of service pension, his claim for disability pension nas been denied on the ground that ADG PS, Army HQ
has over ruled He opinion of RMB and rejected his claim of disability pension vide ord., ,:iated 17.07.1998 and declared his disease as NANA.
Thereafter Lie applicant filed first appeal which was rejected by the compa,.:ki, authority vide order dated 27.04.1999 and the applicant filed se.c_oriu
appeal after a gap of 17 years which was also rejected by the competent authority vide order dated 07.09.2016. Hence the instant O.A.
Learned counsel for the applicant submitted that since the applicant was commissioned in the Indian Army in a medically fit condition and has been
retired from service in Low Medical Category and his disability has been accepted by RMB as Aggravated by military service and he should be
granted disability pension. He further submitted that the law on the supremacy of the opinion of a medical board has already been established by the
Hon'ble Supreme Court, hence action of higher authority i.e. ADG PS decision to overrule the opinion of RMB is wrong and should be set aside and
the applicant should be granted disability pension in accordance v.'ith the recommendations of RMB.
The respondents have not disputed that RMB conceded the disease of ""PRIMARY HYPERTENSION"" as aggravated by military service and his
percentage was assessed at 30% for two years. The learned counsel for the respondents submitted that after retirement, service pension has been
granted to the applicant. However, ADG PS as competent authority has overruled opinion 'if RMB and rejected the claim of disability element of
disability :-e;lion vide order dated 17.07.1998 on the ground that said dise c is NANA. Hence the applicant is not eligible for disability pension.
We have heard the parties and perused the RMB in cictail. The question before us is straight and simple i.e. is the action of ADG PS in overruling
the opinion of RMB correct and justified?
In this connection we have carried otL a detailed scrutiny of the RMB and noted that the disease first started in the year 1992 after completion of
24 years of service when thc applicant was posted in a operational area. The RMB has opined hiscase to be Ag9i Ivated by military service on the
ground of strain of military service while posted as Comdg Offic.c.- from March to July 94 and operational duties within this period as per arter of
duties attached"".
In the above scenario, we find that the law on supremacy of the opinion of a medical board is no more RES INTEGRA and the same has been
settled by the 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. Releva,: dct of the judgment is as follows :-
From the above narrated facts and 'he stand taken by the parties before us, the controversy tir!- 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 p. sent case, it is nowhere stated that the Applicant was subjec cc/ 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.
Thus in view of the aforesaid, v set aside the decis ,n cf ADG PS in overruling the opinion of the Release Medical Board (RMB). We are in
agreement with the opinion of RMB that the applicant's disease is Aggravated by military service © 50% for two years. -e the disability of the
applicant is to be considered as `Agg vatlor by military service. Additionally we have noted that the applicant is a senior citizen, close to 75 years of a
2 and his disability pension has been unfortunately denied to him since last 22 years by overrul: .9 the opinion of RMB which is not tenable. Thus
considering t. ii nimary Hypertension' has no cure and can or' be managed by medicines, we are of the opinion that in the interest of substantive d to
protect the applicant from further delay, his disabi:: Hmary Hypertension' @ 30% for two year: is to be deeme,_, :rnary Hypertension'© 300/o for
life after discharge for the of disability element.
In view of the above, the Original Application No. 13 of 2017 deserves to be partly allowed, hence, partly allGwed. The impugned order dated
07.09.2016 pssed by the respondents is set aside. The disability of the applicant ""PRIMARY HYPER:TNZ:ION"" go, 30% for two years is to be
consAered as Aggravated by military service with effect from the date of his discharge i.e. L;1.03.1997. However, in view of law of limitation for
cases admitted despite delay and latches, the applicant's arrears of disability element e to be restricted to a period of three years ty,2fore the date of
filing (-Z ft 0.A as per Hontle Supreme Court decision in the case of Shiv Dass V. Union of India and others (2007 (3) SLR 445.) TL :ng this O.A. is
07.07.2017. Respondents are directed to gi J the order within four months from the date of receipt of a case of this order. Default will invite interest
© 8% per annum I ,ate till actual date of payment.
No order as to costs.