SHAKTI DEVI Vs. UNION OF INDIA
HIGH COURT OF JAMMU AND KASHMIR
UNION OF INDIA
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Y.P.NARGOTRA, J. -
(1.) THIS writ petition has been filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir by widow of Solider Balbir Singh who was serving in the Army and has since been expired. The said Balbir Singh Was discharged from the Army on 30th of May 1976 on medical grounds, by then he had rendered four years, six months and twenty one days service. As per the Medical Board, he was suffering from Traumatic Gangrene left little finger (OPTD)(Amputation Done). At the time of his discharge, his disability was assessed at 20%, and therefore, in terms of the Pension Rules, he was granted disability pension w.e.f. 31.5.1976 to 18.01.1986 for a period of ten years at the stipulated rate. Again in terms of pension Rule 185 of the Army Pension Regulations 1961, re -survey with regard to the disability of the husband of the petitioner was held by the medical board constituted by the Army. The Medical Board assessed the disability of the deceased Balbir Singh again at 20% for a further period of ten years w.e.f 19.1.1986 to 30.12.1995. Accordingly for this period also disability pension under the rules was released in favour of the husband of the petitioner. After the expiry of second spell of ten years 3rd re -survey of the deceased Balbir Singh was got conducted from the Medical Board by the respondents on 14.2.1996, and disability assessed at 20%. Accordingly, pension case of the petitioner was submitted to PCDA (P) Allahabad for adjudication vide Army Corps Records letter No. l050155/RA/23/Pen dated 18.03.19.96.
(2.) AS per the stand of the respondents PCDA(P) Allahabad adjudicated upon the case in consultation with Medical Advisor (Pension) who is attached to PCDA(P) Allahabad appointed by Dte Gen AFMS New Delhi for uniform application of Entitlement Rules. The PCDA(P) Allahabad in exercise of the powers conferred upon it under Rule 17(b) of Entitlement Rules 1982, did not accept the assessment of the said Balbir Singh at 20% as assessed by the Medical Board and assessed the same at 6 to 10%. Since the disability was less than 20%, therefore, the pension of the husband of the petitioner was stopped w.e.f 31.12.1995. The petitioner seeks to challenge the legality of the stoppage of the disability pension of her husband.
The contention of Mr. Qureshi learned Counsel for the petitioner is that in terms of the Regulations 185 the third medical assessment of the disability was not permissible as per rules. He submits that after the 2nd assessment the disability was found to be persisting and remained unmodified so disability pension was to be sanctioned for life. He further submits that even on third re -survey the disability of said Balbir Singh was assessed by the medical board at 20% and the same could not validly be reduced by PCDA(P) without getting him re -examined by a Medical Board if he was not satisfied with the given opinion of medical board. He submits that stoppage of the pension at the instance of PCDA(P) Allahabad is illegal, therefore, should be set aside.
(3.) ON the other hand, the contention of Mrs. Goswami, learned Counsel for the respondent is that though Regulation 185 does not speak of 3rd re -survey, but according to her in the administrative discretion of the respondents third re -survey of the medical board could be held. The findings of the 3rd medical board according to her were only recommendary in character and could be disregarded legally by PCDA(P) if found not acceptable and disability could be reduced by it on re -assessment and as such, in such circumstances no exception can be taken to the stoppage of the pension of the husband of the petitioner.;
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