Binod Kumar Roy, S.K. Jain, JJ. - (1.) THROUGH this writ petition, which was filed by Rajesh Kumar Srivastava, an invalidated Army Captain, who died on 4.9.1997 and substituted by his widow and minor children vide order dated 6.9.200, a prayer has been made to quash the Order dated 2nd August, 1991 as contained in Annexure -12 and the Order dated 8th January, 1996 as contained in Annexure SA -1. 1.1 Annexure -12 is a communication made by the Under Secretary to the Government of India, Ministry of Defence to the Chief of the Army Staff, New Delhi intimating the following: that he has been directed to say that it has been decided that the disability viz, schizophrenia on account of which the petitioner was invalidated out of service should be regarded as neither attributable to nor aggravated by his military service as the disease is constitutional in nature and unrelated to service. 1.1 Annexure SA -1 is a communication made to the Petitioner by the Additional Secretary to Government of India through Letter No. 7 (100) 91/Defence (Pension/Appeal), Government of India, Ministry of Defence, New Delhi dated 8th January, 1996 intimating that the Appeal dated 18.11.1991 has been fully considered by the Appeal Committee which found that in the accident dated 2.5.1986 much injury has not been inflicted nor has it affected his mental condition and the main reason for his abnormal behaviour is that he became frightened on account of ulcer operation; and his disability is neither attributable to the military service nor was it aggravated on that account. The Pleadings: The writ -petition asserts, inter alia, that at the time of joining of the U.P. Sainik School the writ petitioner was medically examined at Command Hospital, Central Command, Lucknow and was found medically fit and nothing abnormal detected and on the basis of that medical test he was admitted; having completed his studies he appeared in the competitive examination for selection in National Defence Academy and on account of his ability and talent, was admitted after his examination at Military Hospital, Bhopal where also nothing abnormal was detected and was found quite fit, after completion of his graduation from the National Defence Academy, Pune he joined Indian Military Academy, Dehradun as trainee; after completion of the training he joined Indian Army as Second Lieutenant on 2.6.1982 and was promoted on 12.6.1984 as Lieutenant; during his medical examinations from 1982 to 1984 nothing abnormal was detected; on 12.6.1985 he was promoted as Captain; in July, 1985 he was posted at Chamb, Nathus, Tibba and Teri Sector in Jammu & Kashmir, where clean and pure water was not available and he had to drink dirty nala water and do 24 hours duty due to which he developed stomach trouble and acute constipation problem; despite complaint he was not given any medical aid; in September, 1985 he was sent for training of Junior Staff Commission at Belgaon where he developed further trouble inasmuch as bleeding started from his mouth and was sent to Military Hospital, Belgaon where, too, he could not get proper medical treatment; thereafter he was referred to Command Hospital, Southern Command, Pune where Duodenal Ulcer was detected but no mental abnormality was found, from where he was discharged on 13.11.1985 (report Annexure -I) and posted at 10, Bihar Regiment at Ranchi; while he was going on 2.5.1986 on Scooter from Officer's Colony, Ranchi to Officer's Mess for taking dinner he met an accident and received certain injuries but he was not given proper medical aid rather given only the first aid, his father was informed of his condition vide letter as contained in Annexure -2 on receipt of which his father went to Ranchi where he was insisted by the Officer -Commanding Rear Major Ganesh Sah to take him to home on which he was brought home by his father; his father got him admitted in Command Hospital, Lucknow where he received treatment, including psychiatric treatment from 10.6.1986 to 15.12.1986; thereafter he joined his duties in December, 1986, as the officer concerned had an apprehension that he is suffering from mental disease he was again sent for medical examination at Medial Hospital, Danapur for psychiatric report; after examination vide report dated 8.6.1987 (as contained in Annexure -3) nothing abnormal was detected; on 12.10.1987 he was again examined by a psychiatric and it was for the first time that a report (as contained in Annexure -4) was made regarding abnormality in his behaviour and mental outlook; in April, 1988 he was again sent for medical examination and it was this time diagnosed that he is suffering from schizophrenic psychosis; his father received notice dated 25.5.1989 (as contained in Annexure -6) under Rule 15 -A sub -para 2 of the Army Rules, 1954 requiring him to prefer a petition against the findings of the Medical Board to the Chief of the army Staff through President, Medical Board; his father was sent yet another letter dated 29.5.1989 (as contained in Annexure -7) declaring him invalid on the basis of the report of the Medical Board; his father sent his reply dated 14.6.1989 (as contained in Annexure -8) to the Chief of the Army Staff through the President of the Medical Board against the aforesaid invalidment report of the Medical Board; vide order dated 26.4.1990 (as contained in Annexure -11) he was declared invalid for Military service; thereafter he received the impugned order (as contained in Annexure -12); on account of the aforesaid disablement and invalidment he is fully entitled at least for disability pension, if attributable and aggravated by Military service; against the aforesaid letter he made a representation to the Under Secretary on which he received the impugned order (as contained in Annexure -SAI); from the facts aforementioned by no stretch of imagination it can be said that the disease in question is constitutional in nature; he is fit for all services and his behaviour and conduct is normal; his disability, if any, has developed during his employment on account of hard life and accident and thus he is fully entitled for disability pension.
(2.) IN the Counter Affidavit, which has been filed by Lieutenant Colonel S. Sudarsan posted as Qualified Specialist (Psychiatric), Command Hospital (EC) Calcutta, it has been stated, inter alia , that Schizophrenia is a constitutional disorder which can manifest itself at anytime, it is chronic and has frequent relapses; the disorder is conceptualized as a syndrome that is heterogeneous in its cause, pathogenesis, presenting picture, course, response to treatment, and outcome; unless the symptoms are manifested there are no means of detecting or predicting the possibility of this disease at the time of selection; promotion in Army is a routine administrative matter, armed forces makes arrangement for safe drinking water even in the most remote and uncongenial areas/places where troops of the Indian Army has to serve; and serving at Field Areas is an essential service requirement for an army personnel and there cannot be any exception to it; after the petitioner was diagnosed as suffering from Duodenal Ulcer, he was given complete medical treatment and kept under lower medical category for surveillance and on full recovery was upgraded, there is no medical record whatsoever of any injury in relation to the alleged scooter accident hence it is evident that the nature of injury, if at all sustained, was trivial, the letter of Major Ganesh Sah (Annexure -2 to the writ petition) it self shows that the petitioner was already showing early features suggestive of Schizophrenia prior to the Scooter accident; the allegations made in Paragraph 12 are denied and in reply it is submitted that the petitioner was duly admitted in the Military Hospital and Schizophrenia was diagnosed and was treated for the same and on recovery was placed in medical category S -3 (T -24) with effect from 18th December, 1986; report on AFMSF -10 (Armed Forces Medical Services Form) (Annexure -3 to the writ petition) was initiated in June, 1987 for routine review and re -categorisation which was due and his behaviour was reported as normal as he remained in a state of remission; in October; 1987 the petitioner showed feature of relapse of Schizophrenia for which a fresh AFMSF -10 for his hospitalisation and treatment was initiated; surprisingly the petitioner has made no mention of his AFMSF -10 initiated at the first hospitalization in May/June, 1986; it is wrong to say that abnormality in his behaviour was detected for the first time in October, 1987; the fact is that it was detected for the first time in the year 1986; in April/May, 1988 he had a relapse of Schizophrenia again, Schizophrenia was not caused by the alleged Scooter accident as claimed by him; the Military service has no bearing either in causation or aggravation in the case of the petitioner and is a very serious ailment and thus it would not be in the interest of Army to retain him; in Annexure -13 the petitioner himself admits that he is still not mentally well and is continuing treatment and accordingly his contention that he is normal and fit for service is incorrect; the deponent himself is a qualified psychiatrist with full sense of responsibility submits that a person suffering from Schizophrenia is prone to unpredictable and unprovoked violent behaviour and is a threat to safety of other and self as such also he is not fit for Military service; as the disability pension is granted to a person only when the disability is either attributable to or aggravated by military service; the deponent respectfully submits to refer to the opinion of Col. Rajendra Singh, Senior Advisor (PSY) of CH (EC), Calcutta, as contained in Annexure -C.A. -1; thus this writ petition be dismissed which has been filed on the grounds which are wholly misconceived and unsustainable in law. Annexure C.A. -1 states, inter alia , the history of the petitioner from time to time on account of the disease in question and even of filing of a Divorce case by his wife. A Rejoinder to the aforementioned Counter Affidavit sworn by the father of the petitioner has been filed by and large repeating the allegations made in the writ petition. The submission:
(3.) MR . Shesh Kumar, learned counsel for the petitioner, contended as follows: (i) The impugned order as contained in Annexure -12 is a non -speaking and cryptic order and accordingly it is liable to be quashed, (ii) In view of Clause 7(b) of Appendix II since Schizophrenia had led to discharge of the Petitioner it will be ordinarily deemed to have arisen in service as no note of it was made at the time his entry in the service. As held by this Court in Sanjiv Jaggi v. Union of India and others : 1994(24) ALR 98, in which the writ -petitioner who was an army officer and discharged from Army on account of suffering from Schizophrenia and who, too, had moved for giving disability pension on that ground which was rejected on the ground that he had not earned disability due to military service, this Court held that he is entitled to disability pension under the relevant rules apart from awarding cost of Rs. 1000/ -. He also referred to Anil Kumar Mishra v. Union of India and others, (1996) 2 UPLBEC 761, and Yashpal Singh Mehra v. Union of India and others : 1998 (78) FLR 652 (Alld) wherein military authorities have refused to grant disability pension, it was held by this Court that if no note was made at the time of acceptance of the petitioner in service, then it will be presumed that the disease will ordinarily be deemed to have arisen in service. He also referred to Shiv Murti Rai v. Union of India : 1998 (33) ALR14 (Sum.) : (1997) 2 UPLBEC 1179, wherein it was held by this Court since the disease in question had led to the discharge of the original petitioner in terms of Rule 7(b) of the Entitlement Rules, which was not detected by medical examination either before or at the time of entering of his service, it will be presumed that disability has been caused due to the rigour of the military service and for rebutting this presumption there should have been strong authoritative and cogent reasons to rule out that the disease would be attributed to the service and accordingly the impugned orders be set aside and the respondents be directed to grant pension to the substituted petitioners who are widow and minor children of the original petitioner. He lastly referred to Madan Singh Shekhawat v. Union of India : 1999(83) FLR 311(SC), wherein the Supreme Court held that the rules governing disability pension being a beneficial provision should be interpreted liberally so as to give them a wider meaning than a restricted meaning. 4.1 Mr. Satish Kumar Rai, learned Standing Counsel for the Union, appearing on behalf of the Respondents, on the other hand, prayed to dismiss this writ petition contending as follows: (i) The order as contained in Annexure -12 is a speaking one containing a relevant ground. (ii) The Medical Texts vide (a) 'Price's Text Book of the Practice of Medicine, Tenth Edition, published by The English Language Book Society and Oxford University Press and (b) 'Psychiatry Disorders' by Gurmeet Singh schizophrenia is a genetic disease the symptoms of which ultimately develop when the person suffering from it is acted upon by stress which may be biological (inflation of brain damage) or environmental (e.g. family situation). (iii) As held by the Hon'ble Supreme Court in Union of India and Anr. v. Baljit Singh : 1997 Military Law Journal SC 28 : (1996) 11 SCC 315 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 and in terms of clause (C) of Paragraph 7 if a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed the onset of the disease and that the conditions were due to the circumstances of duty in military service and unless these conditions are satisfied, it cannot be said that the sustenance of injury per se is on account of military service and in each case, when such a 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. Here the petitioner has failed to establish the relevant facts. (iv) The decision relied upon by the learned counsel for the petitioner are clearly distinguishable on facts and do not apply to the instant case, besides to a great extent contrary to the decision of the Supreme Court in Union of India v. Baljit Singh supra.;