armed forces tribunal, chandigarh regional bench at chandimandir

TA No. 309 of 2011 -1-ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCHAT CHANDIMANDIR-.-TA 309 of 2011 (arising out of CWP 2863 of 2009)Gulzari Lal …… Petitioner(s)VsUnion of India and others …… Respondent(s)-.-For the Petitioner (s) : Mr.Sanjeev Kumar Suri, AdvocateFor the Respondent(s) : Mr. Vibhor Bansal, CGC.Coram: Justice Rajesh Chandra, Judicial Member.Air Marshal (Retd) SC Mukul, Administrative Member.-.-JUDGMENT12.02.2013-.-1. The petitioner by this petition prays for continuance of grant of disabilitypension along with quashing of the findings of the Reassessment and ReviewMedical Boards.2. The facts of the case are that the petitioner was enrolled into Army on11.3.1964 and invalided out from service on medical ground on 22.11.1969 afterrendering 5 years 8 months and 11 days of service. The documents of the petitionerhave been destroyed after expiry of mandatory retention period of 25 years.However the record from the Long Roll held at the record office reveals that thepetitioner was invalided out of service on account of disability “IDIOPATHICEPILEPSY”, assessed at “30% permanent.” Since the disability was held neitherattributable to nor aggravated by Military Service by the Invaliding Medical Boardthe disability pension claim was rejected by PCDA(P) Allahabad. The petitionerwas paid invalid gratuity to the extent of Rs.484/-. Aggrieved, the petitioner filedCWP No. 313 of 1998 in the High Court of Himachal Pradesh at Shimla whichwas decided in favour of the petitioner vide Court order dated 26.5.2003, quote“ the present writ petition is allowed and the respondents are directed to grant disability pensionas per rules to the petitioner from the date he was invalided out of service. The entire arrears ofpension shall be calculated and paid to the petitioner within three months from today. In theevent of failure of the respondents to pay arrears within the above stipulated period, they shall beliable to pay interest at the rate of 9% per annum. No order as to costs.”3. An appeal against the above court order filed on behalf of Union of Indiabefore the Division Bench of Hon’ble High Court of Himachal Pradesh at Shimlawas dismissed on 11.12.2003.Towards the fulfillment of the Court Order,

TA No. 309 of 2011 -2-sanction by the competent authority for grant of disability pension at the rate of20% per month w.e.f. 23.11.1969 till Re-assessment Medical Board was accordedon 08.12.2004 along with 9% interest and Pension Payment Order was issued.Thereafter the petitioner filed CMP No. 971 of 2004 for variation in paymentstating that the same was not in accordance with the calculation sheet supplied bythe DPDO Una. This is sub-judice at present.4. Re-assessment Medical Board was carried out on 20.8.2005 at CommandHospital Chandimandir wherein the disability of the petitioner was re-assessed atless than 20% and his disability element was stopped. On representation against theaward given by the re-assessment Medical Board by the petitioner, the petitionerwas brought before the Review Medical Board at Army Hospital DelhiCantonment and his disability was again assessed at less than 20% for life w.e.f.22.6.2008.5. As per the averments of the petitioner, after enrolment on 11.3.1964 thedisease appeared for the first time when he was posted at Babina and after briefhospitalization was invalided out on 22.11.1969. On rejection of his disabilitypension claim CWP NO. 313 of 1998 was preferred at Hon’ble High Court ofHimachal Pradesh which, vide its judgment dated 26.4.2003, directed therespondents to grant disability pension as per rules. The Invaliding Medical Boardheld at Military Hospital Aurangabad had diagnosed the petitioner to be sufferingfrom IDIOPATHIC EPILEPSY and his disability was assessed at 30% permanent.In june 2006 the petitioner was called for a Review Medical Board at ArmyHospital. The Review Medical Board was held on 22 nd June, 2006 which assessedhis disability at less than 20% and as a consequence his disability element wasdiscontinued. The petitioner pointed out that the Review Medical Board was heldmost arbitrarily wherein he was not examined properly and that holding of thereassessment medical board was not permissible under the law and the solepurpose of holding it was to defeat the legitimate claim of the petitioner fordisability pension. The petitioner pointed out that the earlier Invaliding MedicalBoard on the basis of which the petitioner was invalided out from the Army hadvery categorically assessed the disability of the petitioner to the extent of “30%and under the column “probable duration of this degree of disablement” assessed itas “permanent”. Since the disability was of a permanent nature, the fresh re-survey/ assessment was not called for. Hence the present petition.

TA No. 309 of 2011 -3-6. The respondents in their written reply filed on 24 th May, 2010, point out thatthe complete case file in respect of the petitioner has been destroyed after expiry ofmandatory retention period of 25 years. The petitioner was invalided out after 5years 8 months and 11 days of service on account of IDIOPATHIC EPILEPSYwhich was found to be not attributable to or aggravated by Military Service andthe pension claim of the petitioner was rejected. Based on the directions of theHon’ble High Court of Himachal Pradesh at Shimla vide their order dated26.5.2003 in CWP No. 313 of 1998 filed by the petitioner, the competent authoritygranted disability pension at the rate of 20% per month wef 23.11.1969 till ReassessmentMedical Board along with interest as directed.7. In the sanction letter issued, the disability pension was granted till holding ofthe Re-Survey Medical Board. As per the prevailing orders, when the disability isof temporary nature, the disability pension is granted for the specific period and theindividual is required to undergo Re-Survey Medical Board for continuation ofDisability Pension. As per para 7 of Government of India, Ministry of Defenceletter No. 1(2)/97/D (Pen-C) dated 7.2.2001, there will be no periodical review byRe-survey Medical Board for continuation of disability pension. In cases ofdisabilities adjudicated as permanent nature, decision once arrived at will be finalfor life unless the individual himself request for a review. In case of disabilitieswhich are not of permanent nature there will be only one review of the percentagethrough a Re-survey Medical Board to be carried out later within a stipulated timeframe. The percentage of disability assessed/recommended by the Review MedicalBoard will be final and for life unless the individual himself asked for a review.The percentage of disability assessed by the Review Medical Board will be final.8. Accordingly the petitioner was brought before the Re-survey Medical Boardand his disability was assessed less than 20% for life vide AFMSF-17 dated29.8.2005 (Annexure R-1). The petitioner request for a Review Medical Board wasupheld and the Review Medical Board re-examined the petitioner on 22.06.2006and once again assessed the disability to be below 20% (Annexure R-4).9. The respondents asserted that as per dictum of the Hon’ble the SupremeCourt as laid down in the case of Ex.Sapper Mohinder Singh v. UOI CA No.

TA No. 309 of 2011 -4-164/1991 on 14.1.1993 that the findings of the Medical Board are very importantdocuments and their opinion must be respected .10. We have heard the learned counsel for the petitioner as well as therespondents.11. The learned counsel for the petitioner during the arguments re-emphasizedthe point that since the disability IDIOPATHIC EPILEPSY was assessed by theInvaliding Medical Board at 30% permanent, it was not open to re-assessmentunless he himself asked for it. On the other hand the learned counsel for therespondents relied on para 7 of the letter dated 7 th February,2001.12. Look at the Invaliding Medical Board held on 26.09.1969 reveals that thepetitioner suffered from IDIOPATHIC EPILEPSY and was invalided out after 5years 8 months and 11 days with 30% permanent disability which was assessed asneither attributable to nor aggravated by Military Service.15. CWP No. 313 of 1998 in the High Court of Himachal Pradesh at Shimlafiled by the petitioner against rejection of his disability claim was decided in hisfavour of the petitioner vide Court order dated 26.5.2003. The relevant para readsas under:-“ the present writ petition is allowed and the respondents are directed to grant disability pensionas per rules to the petitioner from the date he was invalided out of service. The entire arrears ofpension shall be calculated and paid to the petitioner within three months from today. In theevent of failure of the respondents to pay arrears within the above stipulated period, they shall beliable to pay interest at the rate of 9% per annum. No order as to costs.”16. Based on the directions of the Hon’ble High Court of Himachal Pradesh atShimla vide their order dated 26.5.2003 in CWP No. 313 of 1998 filed by thepetitioner, the competent authority vide GoI MoD letter PC 79891/399/8/ST-12/169/04/PS-4(d) dtd 08.12.2004 granted disability pension at the rate of 20% permonth wef 23.11.1969 till Re-assessment Medical Board along with interest asdirected.17. Accordingly the petitioner was brought before the Re-survey Medical Boardand his disability was assessed less than 20% for life vide AFMSF-17 dated29.8.2005 (Annexure R-1). The petitioner’s request for a Review Medical Boardwas upheld and the Review Medical Board re-examined the petitioner on

TA No. 309 of 2011 -5-22.06.2006 and once again assessed the disability to be below 20% (1-5%)(Annexure R-4). Based on this, the disability element of the pension was stopped.18. The Government of India, Ministry of Defence letter No. 1(2) /97/D (Pen-C)dated 7 th February, 2001 deals with the modalities for implementation of therecommendations of the fifth central pay Commission contained in paras 164.10and 164.22 of the report regarding the findings of the Medical Boards. Thereassessment criteria in respect of disease reads as under:-1. xxxDisease Cases5 xx xx6. xx xx7. Re-assessment: There will be no periodical reviews by the Resurvey Medical Boardsfor re-assessment of disabilities. In cases of disabilities adjudicated as being of apermanent nature, the decision, once arrived at, will be final and for life unless theindividual himself requests for a review. In cases of disabilities which are not of apermanent nature, there will be only one review of the percentage by a ReassessmentMedical Board, to be carried out later, within a specified time frame. The percentage ofdisabilities assessed/recommended by the reassessment Medical Board will be final andfor life unless the individual himself asks for a review. The review will be carried out byReview Medical board constituted by DGAFMS. The percentage of disabilities assessedby the Review Medical Board will be final.19. Keeping the policy on the subject, as enumerated by letter of 7 th February,2001 (as at para 7) in mind, we are of the opinion that since the petitioner wasinvalided out with a permanent disability, it was not open to review later on unlessthe petitioner himself asked for it. As per the evidence on record the petitionernever asked for a review.20. The disability pension was granted by the Hon’ble High Court against themedical board’s recommendation which had held that the disability was neitheraggravated nor attributable to the military service. The court had not given anypermission to reassess the disability at a later date. The conditional approval fordisability pension – at @ 20% per month till Review Survey Medical Board,passed by the competent authority towards fulfilment of the Court Order wasuncalled for. The review of the percentage of disability was done without anybasis and without any order of the High Court. The same cannot be taken intoaccount.21. The results of the Re-survey Medical Board held on 29.08.2005 and ReviewMedical Board held on 22.06.2006 (A-4) are set aside.

TA No. 309 of 2011 -6-22. As a consequence we find that the petitioner is entitled to continue receivingthe disability element of disability pension which was discontinued after theResurvey medical board results.23. On receipt of the copy of the order the respondents are to issue necessaryamendments and recommence payment of the disability element within threemonths of receipt of this order. Parties to bear their own costs.(Justice Rajesh Chandra)12.02.2013raghav(Air Marshal (Retd) SC Mukul)Whether the judgment for reference is to be put on internet?Yes / No.