Vir Yagya Dutt vs Union of India

R.L. Anand, J.—Shri Vir Yagya Dutt, Ex-Gunner, has filed the present writ petition under Articles 226/227 of the Constitution of India vide which it has been prayed by the petitioner that a writ in the nature of certiorari be issued in his favour against the respondents who have rejected his case of disability pension on the ground that the disease suffered by him is a con- stitutional one and the petitioner has further made a prayer that directions be issued to the respondents to release the benefit of disability pension to him from the date when he was discharged from the army.

The case set up by the petitioner is that he was enrolled in the army as Gunner on 22.9.1991. At the time of enrolment, he was medically checked and found fit in all respects. After getting training the petitioner was posted in 144 Composite Regiment. Thereafter, the petitioner was posted in 148 Right AD Regiment. On 23.12.1986 the sitting of the Medical Board was held in respect of the petitioner at Command Hospital, Chandigarh, and the petitioner was categorised in low medical category "EEE": with 50% disability. Thereafter, the medical papers were sent to CCDA (P) Allahabad, for grant of disability pension. On 23.6.1987 the claim of the petitioner for grant of disability pension was rejected. The petitioner made a prayer for the supply of medical papers to enable him to file an appeal but he was informed that the papers could not be supplied to him being the medical documents. On 16.10.1987 he filed an appeal which was dismissed by the Government on 14.6.1988. The petitioner in another appeal filed before the President of India/Chief of Army Staff had pointed out that he had no family history of the disease namely diabetes and he even offered that his parents who were alive could be medically examined in this regard to verify the fact but his mercy petition was also dismissed on 23.3.1991. The same message was received by him in the month of September, 1991. The petitioner filed another appeal as advised to him by respondent No. 2, in the year 1996 but to, no effect. So much so, he served a legal notice in the month of December, 1998 and that too did not bring any relief to him. Hence the writ petition.

In short, the case set up by the petitioner is that the disease of diabetes suffered by him is attributable to the army service, and since the disability is 20% or more, he is entitled to the benefit of disability pension which has been deprived to him.

Notice of the writ petition was given to the respondents. They have filed the written statement and denied the allegations. The broad stand of the respondents is that the opinion of the Release Medical Board is final and that the High Court cannot substitute its own opinion to the one formulated by the Board. It is also the stand of the respondents that the disease suffered by the petitioner is not attributable to the army service. It has no connection with the duties which were performed by the petitioner. Since the disease was constitutional, it could not be noticed at the time of the entering of the petitioner into service, therefore, the petitioner is not entitled to any benefit much less of disability pension. Finally, it was pleaded by the respondents that this writ is liable to be dismissed on the ground of delay and laches.

The petitioner filed rejoinder to the written statement of the respondents in which he reiterated his averments made in the writ petition by denying those of the written statement and from the pleadings of the parties and supporting documents, I have to formulaic an opinion as to whether the petitioner is entitled to the benefit of disability pension or not.

I have heard Shri R.S. Bajaj, learned counsel appearing on behalf of the petitioner and Shri M.S. Guglani, learned counsel appearing on behalf of the respondents and with their assistance have gone through the record of this case.

The learned counsel appearing on behalf of the petitioner submitted that it is proved on the record that petitioner was boarded out from the army service on medical ground and his disability was assessed at 50%. The disease of diabetes was suffered by the petitioner when he was serving in the army. Mr. Bajaj submitted that when the petitioner joined the army, he was medically examined by the Board and he was found fit in all respects. There is no adverse entry of the Medical Board, which took the Medical Examination of the petitioner, in the service record and in these circumstances, it has to be inferred that the disease suffered by the petitioner is attributable to the army service. In support of his contention, the learned counsel for the petitioner refers to para No. 7 of the Appendix-II of the Army Service Pension Rules, which reads as follows:-

" A disease which has led to an individual''s discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of the individual''s acceptance for military service".

On the contrary, learned counsel appearing on behalf of the respondents submits that the release Medical Board has given the opinion that the disease of diabetes is not attributable to the army service. The opinion of the Medical Board should not be disturbed lightly by the High Court especially in the writ jurisdiction. It was also pleaded vehemently by Shri Guglani that since the disease is constitutional, therefore, the petitioner is not entitled to the benefit of any disability pension. It was also the frontal argument of the Mr. Guglani that the initial onus lies upon the petitioner to establish that he is entitled to the disability pension as per the provision of Regulation 173 and till a prima facie case is made out by the petitioner he is not entitled to any benefit. Mr. Guglani further submitted that the writ petition deserves to be dismissed by virtue of the decision of Karnataka High Court reported as 1997(2) SCT 680 and in also views of the decision of the Hon''ble Supreme Court reported as 1997(2) RSJ 735. Yet an alternative contention which was raised by the learned counsel for the respondents was that if his contentions referred to above do not prevail upon the mind of the court, still, the writ petition is liable to be defeated and dismissed on the ground of delay and laches.

Shri Guglani further submitted that with the expansion of the age and with the passage of time, the resistance of the body decreases and this kind of disease is invariably suffered by the human being but nevertheless it is not attributable to the army service.

I have applied my mind to the contentions raised by the learned counsel for the parties and in my opinion this writ petition deserves to be accepted but with a limited relief. It is the admitted case of the parties that no deformity was found by the Medical Board at the time of the recruitment of the petitioner in the Army. Therefore, in such a situation, it has to be inferred that the disease of diabetes suffered by the petitioner is attributable to the army service. It is true that medical people are experts and their opinion is invariably given due weightage but that opinion is not binding upon the Courts which can always formulate an independent opinion as to whether the case of a particular army soldier is made out for the gram of disability pension or not. I have already stated above that even after the discharge of the petitioner his pension papers were prepared and sent to CCDA but those papers were not approved on the ground that the disease of diabetes suffered by the petitioner is not attributable to the army service. When the petitioner was hale and hearty at the time of his admission, it is equally possible that with the passage of time and with the expansion of the age he might have suffered this disease, therefore, in my opinion, the argument which was earlier raised by Mr. Guglani goes against the Government that with the expansion of the age the petitioner had suffered the disease. It is equally possible that on account of the dietary conditions available to a soldier while serving in the army might have aggravated this problem. The learned counsel appearing on behalf of the petitioner relies upon a judgment dated 11.7.2000 passed by this Court in C.W.P. No. 11987 of 1999 vide which this Court has held that the disease of diabetes and hypertension is attributable to the army service.

The learned counsel appearing on behalf of the respondents has tried to distinguish this judgment by submitting that the said case was a case of diabetes and hypertension while the case in hand only deals with the case of diabetes patient. In my opinion, the hypertension is consequential disease of diabetes. Therefore, I over-rule the contention of the learned counsel appearing on behalf of the respondents. The case law which has been relied upon by the counsel for the respondents is also not applicable to the facts in hand because the petitioner has been able to make out a case that since his disease is attributable to the army service, therefore, he is entitled to the benefit of disability pension.

Now, the short point which requires determination is, from which date the petitioner should be given the benefit of disability pension.

It is the case of the petitioner that he was discharged from the army on 23.12.1986. His case was rejected in 1987. His appeal was also dismissed in 1988. Therefore, the cause of action initially rose of the petitioner in 1988. The present writ petition was filed in the year 1999 after a lapse of 11 years. The benefit of disability pension is a civil right of a person. It is not a bounty or grace which is shown by the respondent-authorities. It furnishes a successive cause of action to the petitioner. Therefore, the petitioner is entitled to take the benefit of disability pension for a period of 38 months which was available to him had he filed a suit in the competent court of jurisdiction. Therefore, the writ is partly allowed by giving the directions to the respondents to release the benefit of disability pension of the petitioner for a period of 38 months prior to the date of the institution of the writ petition and thereafter, within three months from the receipt of the copy of this order, failing which the petitioner shall also be entitled to interest at the rate of 12% per annum. The petitioner shall also appear before the Re-survey Medical Board as and when called upon by the respondent- authorities. There shall be no order as to costs. Copy of the order be given Dasti.

Petition partly allowed.