R. B. Mehrotra, J. - (1.) EX-Lt Sanjiv Jaggi, the petitioner in the present case, was selected for short service commission for training at Officers Training School, Madras and was commissioned as Second Lt. in the Indian Army on 15-3-1980 and was posted initially with 4/8, Gorkha Rifles, a Division of the Infantry, the main fighting branch of the Indian Army. The petitioner performed his duties satisfactorily and during the service as a commissioned officer attended Young Officers Course at Belgaum which comprises of training in weapons and commando war affairs and driving and maintenance of vehicles at Army School off Mechanical Transport, Banglore.
(2.) SOME time in the year 1982, the petitioner was deputed for one of the battalion exercise which involves severe test of physical and mental ability of an officer. During the course of exercise, the petitioner had to spend four days and night without food. The petitioner claims to have suffered a breakdown in view of this extraneous exercise. The petitioner was accordingly hospitalised for treatment at Military Hospital, Pathankot. Subsequently, the petitioner was referred to Military Hospital, Udhampur where he remained hospitalised for 20 days. On this account, the petitioner was down graded and placed in medical category S-3 for a period of six months The petitioner's Unit, thereafter, was required to move to Uri (J and K) which is a Field Station. The petitioner being medically unfit, was posted to 58. Gorkha Training Centre in Peach Station at Shillong on 30-9-82. The petitioner was medically examined at Shillong and after a period of six months the Medical authorities at Shillong, referred the case of the petitioner to Command Hospital, Calcutta. The petitioner was hospitalised for a period of six months from December 1982 to September. 1983. During the period the petitioner was admitted in the; Command Hospital, Calcutta, his case was referred to the Medical Board for examination. After examination, the Medical Board was of the opinion that the petitioner be released from the Army on medical ground in category 15-5. Accordingly, the petitioner was discharged from Army w.e.f. 19-9-1983 on the recommendations of the Medical Board dated 10-5-1983. The petitioner was earlier discharged from the Command Hospital, Calcutta with the recommendation : "Invalided out of service in medical classification S-5". The discharge slip further mentioned under the Head diagnosis "Schizophrenia Mitralvalve-prolapse syndroms". The petitioner thereafter approached the authorities for payment of disability pension as contemplated under the rules. The petitioner made application for giving disability pension to him to the appropriate authority. The petitioner's application was rejected by the Under Secretary to the Government of India Vide his letter dated 6-7-1984. In the said letter it was mentioned that the disease from which the petitioner had been found to be suffering namely. Schizophrenia Mitralvalve-prolapse syndrome should not be recorded as either attributable to or aggravated by his Military Service Aggrieved by the aforesaid order, the petitioner filed appeal provided under the Rules. The appellate authority also rejected the petitioner's appeal and took the view that the disease from which the petitioner is suffering is not attributable to Military Service. Consequently, the petitioner filed the present writ petition in this Court, seeking a direction in the nature of writ of mandamus, directing the opposite parties to pay the disability pension admissible to the petitioner under the Rules. This Court issued notice to the respondents. The respondents in turn, have filed a counter affidavit. In the counter affidavit it is admitted that the Medical Board vide AFMSF-I6 assessed ID's as under : JUDGEMENT_844_AWC2_1994Image1.jpg It was also admitted in the counter affidavit that the petitioner was medically fit when inducted in the Army, however, a stand has been taken in the counter affidavit that since the petitioner was claiming stress and strain of field service and the petitioner did not put in any field service, the disability has not been considered to be attributable to the Military Service. It has further been stated in the counter affidavit that the recommendation of the Medical Board does not automatically entitle a person to disability pension. The final say vests in the competent authority who in the instant case is Ministry of Defence and who after due consideration, rejected the case of the petitioner for grant of disability pension. The Medical Board's proceedings are confidential and cannot be made available. In view of the statement made in para-20 of the counter affidavit that Medical Board's proceedings are confidential and cannot be made available to the individual, the Court directed the counsel for Union of India to produce the record' in relation to the disability pension of the petitioner particularly to produce the record of the Medical Board, which was claimed to be confidential, for the perusal of the Court. On the direction given by this Court, the counsel for Union of India, Sri Satish Chaturvedi has produced the record relating to the disability pension of the petitioner. The record reveals that in Medical Board proceedings invaliding all ranks' concerning the petitioner. A certificate was endorsed by the Brieg. Commandant, President, Medical Board stating that the petitioner was brought before the Medical Board on 10-5-83 and the petitioner has suffered from disability mentioned in the petition and admitted in the counter affidavit namely, (1) Schizophrenia (2) Mitral Valve Prolapse Syndrome. It was further stated that this disability is likely to affect the performance of suitable duties in civil life at present. The record further reveals that on the basis of the examination of the petitioner by the Medical Board, the petitioner was considered unfit for further Military Service. The Medical Board recommended disability pension to the petitioner. In the record it is also revealed that the petitioner was also examined by the Psychiatric Wing of the Command Hospital. The Medical Officer of the Hospital, in his report, categorically gave opinion, that the disability of the petitioner is attributable to his service and also gave opinion that disability of the petitioner was aggravated by service. The exact words used in the medical report are quoted below :- JUDGEMENT_844_AWC2_1994Image2.jpg The learned Standing Counsel for Union of India has also produced the relevant rules providing for grant; of disability pension to Military personnels. The Rules are described as "Establishment Rules for Casualty Pensionary Award for the Armed Forces Personnels 1982 The relevant Rules are being reproduced for convenient reference : "Rule-5. The approach to the question of entitlement to casualty pensionary awards and evaluation of disabilities shall be based on the following presumptions :- Prior to and during service (a) A member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance. (b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place due to service. Rule-6 : Disablement or death of all be accepted as due to military service provided it is certified by appropriate medical authority that :- (a) the disablement is due to a wound, injury- or disease which- (i) is attributable to military service, or (ii) existed before or arose during military service and has. been and remains aggravated thereby. This will also include the precipitating/hastening of the on set of a disability. (b) The death was due to or hastened by :- (i) a wound, injury or disease which was attributable to military service; or (ii) the aggravation be military service of a wound, injury or disease which existed before or arose during military service. Rule-12. A person subject to the disciplinary code of the Armed Forces is on 'duty' :- (a) When performing an official tusk or a task, failure to do which would constitute an offence, triable under the disciplinary code applicable to him. (b) when moving from one place of duty to another place of duty irrespective of the mode of movement. (c) During the period of participation in recreation and other Unit activities organised or permitted by service and authorities during the period of travelling in a body or singly by a prescribed or organised route. 27 (c) Medical Authority-Assessment of disablement and entitlement in case of disabilities other than injuries are purely medical issues. View on such medical issues shall be given by the appropriate medical authorities as under :- (i) Medical Boards shall give findings and recommendations on entitlement and assessment in case of disabilities. They are, however, not statutory bodies and their recommendations can be reviewed and revised by the medical authorities viz. DGAFMS. (ii) DGD_ (Pensions). Office of the DGAFMS shall be the medical authority dealing with medical issues at first appeal stage of the claim. (iii) DGAFMS will be the final medical authority for giving views on medical issues at final stage to the DMACP." A perusal of the aforesaid Rules shows that a military personnel is entitled to the disability pension under Rule-6, if the disablement is due to wound injury or disease, which is attributable to a military service. Under Rule 27 (c) the Medical Board is the competent authority for assessment of disablement and entitlement in case of disability other than injuries. It is further clear from the said Rule that the question of incurring disablement is purely a Medical issue and the Medical Board shall give findings and recommendations of entitlement and assessment in case of all disabilities. However, the opinion of the Medical Board can be revised by DGAFMS (Director General Armed Forces Medical Service) and the opinion of the DGAFMS will be the final Medical Authority for giving views on medical issues at final stage.
(3.) I have perused the entire record in the matter and I do not find that there is any finding by the DGAFMS reversing the opinion of the Medical Board given in the case of the petitioner that the petitioner has incurred/aggravated disability which is attributable to Military service. In view of the matter, under the Rules, the Medical Board's opinion given in the case of the petitioner has become final. In the counter affidavit also nothing is brought on record to show either DGAFMS or any higher medical authority in military service than the Medical Board has reversed the opinion of Medical Board given in favour of the petitioner recommending disability pension. Under the Rules the Defence Ministry cannot act contrary to the opinion of the Medical Board in the matter of disability pension. The counter affidavit is also silent on the question, as to on what basis the Defence Ministry has ultimately decided contrary to the opinion of the Medical Board. I am satisfied from the record that the decision of the Defence Ministry that the petitioner has not! earned disability due to military service is not supported by any valid reason or valid ground, nor it is supported by the opinion of any higher medical authority in military service than Medical Board. Under the Rules the opinion of the Medical Board is final in the matter unless reversed by DGAFMS which is the final authority on this issue. The record clearly reveals that DGAFMS has not reversed the opinion of the Medical Board. In this view of the matter I am satisfied that the petitioner is entitled to the disability pension under the relevant Rules. Accordingly I issue a writ of mandamus commanding the respondents to pay all balance of disability pension of the petitioner from the date he has been discharged from service within six weeks from the date of receipt of certified copy of this order and continue to pay the same in future as and when it falls due. The petitioner is also entitled to his costs which I determine to be Rs. 1,000/- in the circumstances of the case. ;