V. Sampath vs The Officer-in-charge, Sena Seva Corps Abhilekh, Yantrik Parivahan ASC Records (MT), Controller of Defence Accounts, (Pension), Chief Controller of Defence Accounts and The Union of India (UOI)

P. Sathasivam, J.—The above writ appeal has been filed against the order of the learned single Judge, dated 25.7.2001 made in

W.P.No.4028 of 1995, in and by which, the learned Judge after finding that the claim made in the writ petition is a belated one and that on merits

also, there is no material on record to establish that the disability suffered by the petitioner is due to the military service, dismissed the writ petition

filed by the petitioner claiming disability pension.

For the sake of convenience, in this judgment, we shall refer the parties in the order as they were arrayed before the learned single Judge.

The writ petitioner, an ex-serviceman was appointed as a Sepoy-cum-Driver in Defence Services on 02.3.1978. As he was found unfit by the

Medical Board to be retained in service on the ground that he had been suffering from a disease, by name, Neurosis, he was discharged from

service on 15.9.1985. On a complaint that the petitioner had been suffering from Neurosis, he was examined by the Medical Board, which found

that the petitioner had been suffering from Neurosis and recommended for his discharge. The petitioner claimed disability pension, which was

refused by the Controller of Defence Accounts (Pension), Allahabad and on appeal, the Ministry of Defence by the order, dated 27.6.1988,

confirmed the orders passed by the Controller of Defence Accounts (Pension), Allahabad and rejected the appeal. Thereafter, the claim of

disability pension made by the All India Pension Association, Ambattur, Chennai-53 on behalf of the petitioner, by way of appeal, was also

rejected by the order, dated 30.4.1991. Aggrieved by the same, the petitioner filed W.P.No.4028 of 1995 praying for quashing of the

proceedings, dated 30.4.1991 of the Officer-in-Charge, Sena Seva Corps Abhilekh Yantrik Parivahan ASC Records (MT), Bangalore, the first

respondent herein and also for a direction to the respondents to sanction disability pension due for his Army Service from 16.9.1985. The said

claim was resisted by the Department by filing counter, wherein it is stated that first of all, the writ petition is to be dismissed on the ground of

laches, and secondly, there is no material to show that the petitioner sustained disability, which is attributable to or aggravated by military service.

By the order, dated 25.7.2001, the learned Judge accepted both the objections raised by the Department and dismissed the writ petition. Hence,

the present writ appeal.

Heard the learned counsel appearing for the petitioner/ appellant as well as the learned Senior Central Government Standing counsel appearing

for the respondents.

It is not in dispute that when the petitioner was in service he suffered a disease by name Neurosis (300). He was subjected to examination by

the Medical Board. The Medical Board on examination offered their opinion stating that it was a case of constitutional disorder. The opinion of the

Medical Board is available at page 6 of the Additional typed set filed by the petitioner. In the same opinion, in clause (4), the Board has assessed

the percentage of disability at 20%. The learned counsel appearing for the petitioner/appellant, by drawing our attention to para 173 of Pension

Regulations for the Army, 1961, contended that inasmuch as the Medical Board has assessed the petitioner''s disability at 20% and in view of the

fact that he was attacked with Neurosis when he was in the military service, he is entitled to disability pension as per the said provision. We have

verified the opinion as well as the other details of the Medical Board and the relevant provision. As rightly pointed out by the learned Senior

Central Government Standing counsel, though the Medical Board has assessed the percentage of disability at 20%, there is no material or

conclusion to the effect that the disability was attributable to or aggravated by the military service. On the other hand, the opinion of the Medical

Board shows that the cause for such disability is ""constitutional disorder"". In other words, there is no specific remark/assessment by the Medical

Board that the disability sustained by the writ petitioner is attributable to or aggravated by the military service. In this regard, the learned Senior

Central Government Standing counsel appearing for the respondents heavily relied on the decision of the Supreme Court reported in Union of

India (UOI) and Another Vs. Baljit Singh, . The following conclusion of their Lordships is relevant:-

He further contends that as per the medical report, the injury was sustained by him while he was in service and that, therefore, it has been

presumed that it was during service and accordingly must be attributable to military service. On a consideration of the rules, we think that the

contention of Shri Malhotra merits acceptance. 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 a 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 amply clear from clauses (a) to (d) of para 7, which contemplates that in respect of a disease the Rules enumerated thereunder

require 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 are 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 and 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....

It is clear from the above decision, that the disability pension would be computed only when the disability has occurred due to a 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, the person concerned is entitled to the disability pension. In Union of India and Ors. v.

Muneshwar Prasad 2002 (4) SLR 244, a division bench of the Patna High Court, after referring to the above-mentioned decision of the Supreme

Court, viz. Union of India (UOI) and Another Vs. Baljit Singh, , rejected the similar claim as made in our case. In that decision, the division bench,

after going into the decision of the Apex Court and after finding that the report of the Medical Board does not show that the disability was

attributable to military service, set aside the order of the learned single judge granting disability pension and allowed the appeal filed by the Union

of India.

In an unreported judgment of this court in W.A.No.3143 of 2004, dated 27.6.2005, a division bench of this Court has concluded that this

Court cannot sit as a Court of appeal over administrative decisions. Their Lordships further held that the scope of judicial review of administrative

decisions is very limited. In view of the fact that the Medical Board has viewed the disability as neither attributable to nor aggravated by military

service and has opined that it was a constitutional disorder and was not connected with the service, this Court upheld the stand taken by the

Ministry of Defence and dismissed the appeal.

Even the decision relied on by the learned counsel for the petitioner, viz., Controller v. S. Balachandran Nair reported in 2005 (35) AIC 17

(S.C.), clearly shows that there must be a casual connection between disablement or death and military service for attributability or aggravation to

be conceded. No doubt, Their Lordships have held that in deciding on the issue of entitlement, all the evidence, both direct and circumstantial, will

be taken into account and the benefit or reasonable doubt will be given to the claimant. They also held that this benefit will be given more liberally

to the claimant in field service case. However, in the same decision, the Supreme Court held that ""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"".

In the light of the decision of the Supreme Court as well as this Court and in view of the factual information as seen from the opinion of the

Medical Board, which we have already extracted, even if we accept that the writ petition filed by the petitioner in the year 1995 is maintainable, no

relief can be granted in view of the opinion of the Medical Board .

Under those circumstances, we do not find any ground for interference with the order of the learned single Judge. Consequently, the appeal

fails and the same is dismissed. No costs.