- (1.) BY means of this petition, moved under Article 226 of the Constitution of India, the petitioner, has sought writ in the nature of certiorari quash ing decision of respondent No. 2 Con troller of Defence Accounts (Pension), Allahabad, denying the disability pen sion to the petitioner w. e. f. 24-08-1988. A Mandamus has also been sought for payment of arrears of pen sion with interest.
(2.) HEARD learned counsel for the parties and perused the record. Brief facts of the case, as nar rated in the writ petition, are that the petitioner joined Indian Army on 01-07-1950 with the Garhwal Rifles. Dur ing the course of his service he con tracted the invalidating disease known as Ventricular extra Systoles multiple' in 1971 and was placed in low medi cal category 'bee permanent'. It is alleged in the petition that said disease was result of stress and strain of serv ice conditions and was directly attrib utable to military service. The peti tioner was discharged from the mili tary hospital Jabalpur with 20% dis ability and was retired with disability pension w. e. f. 02-08-1974, vide PPO No. S/16030/74. According to the pe tition, the petitioner received the dis ability pension for more than 24 years, till 21-01-1999, after the dis charge from service and every time when he was examined his disability was found 20%, after his retirement. Details of the same are mentioned as under: Period Disability Letter Nos. (a) 02-08-74 to 22-05-76 20% Vide PPO No. D/pa/695/74 (b) 23-02-76 to 04-01-78 20% Vide PPO No. D/ra/9134/76 (c) 05-01-78 to 23-1 0-87 20% Vide PPO No. D/dra/6839/78 (d) 24-10-87 to 11-06-97 20% Vide PPO No. D/dra/1 3737/87 (e) 12-06-97 to 21-01-99 20% Vide PPO No. D/dra/6045/97 The petitioner alleges that all of a sudden he was again called to face Re-survey Medical Board at military hos pital, Dehradun on 31-05-1998, con ducted by respondent No. 3. It is fur ther alleged that the petitioner's dis ability was again found to the extent of 20% in the year 1998, for next ten years. It is alleged by the petitioner that at the age of 73 years, after he received the disability pension for 24 years, suddenly, the respondent stopped the disability pension of the petitioner on the ground that the dis ability has gone down by 1 - 5 per cent less, from 20%. The said order dated 04-12-1998 (copy Annexure -3 to the writ petition), by which the dis ability pension is stopped, is chal lenged III this petition. Before filing the present writ petition, the petitioner filed an appeal on 29-01-1999, before the authority concerned, but the same was rejected (copy Annexure -5 to the writ petition) against his claim for the disability pension. Hence, this writ pe tition. The respondents contested the petition and a counter affidavit was filed on their behalf, in which it has been admitted that the petitioner did join Indian Army on 1st July, 1950, with Garhwal Rifles and promoted to the rank of No. Subedar, in Army Edu cation Corps. It is also admitted that while the petitioner was serving with 95 Mountain Regiment, his low medi cal category was detected due to the disease Ventricular extra Systole Branch Block' and he was placed in medical category CEE and later to medical category BEE (Permanent ). It is also admitted that the petitioner got retired with disability pension with 20% disability. It is also admitted that from time to time his disability was found to have been continued to the extent of 20%. However, for the dis puted period i. e. with effect from 2nd January 1999, it is stated in the coun ter affidavit that the disability pension was discontinued as the claim for claim of re-assessed disability pension recommended by Re-survey Medical Board was rejected by P. C. D. A. (Pen sion), Allahabad, after consultation with the Medical Adviser (Pension ). It is stated in the counter -affidavit that the disability due to the disease had gone down by 1-5%, from 20%, as such, the petitioner was no more en titled to the disability pension.
(3.) IT is admitted to the parties that the petitioner retired from the service of Army with disability pension to the extent of 20% due to the Ventricular extra Systoles Multiple' disease. IT is also admitted that from the year 1974 till 1998, there was no dispute that he continued said disability as and when examined by the Medical Board. Strangely, after 24 years of retirement, suddenly, at the age of 73 years, the respondents have taken a stand that the disability as gone done of the pe titioner by 1 -5%, from 20% limit, he was suffering. In the case like the present one, where all the facts are admitted, as mentioned above, the re sponsibility lies on the respondents to show that on what basis, it came on the conclusion that the disability has gone down, less than 20%. Learned Standing Counsel for Union of India drew attention of this Court to the Annexure-7 to the coun ter affidavit, which contains the amendment in Rules 17 to 27 of the Entitlement Rules, 1982. Learned Standing Counsel, particularly, drew attention of this Court to Clause (b) of Rule 17, in which it is provided that 'the competent Medical Authority may for reasons to be recorded in writing, alter or modify the recommen dations of IMB/rmb/rsmb/lower Medical Authorities. Learned Standing Counsel further contended that the higher authorities were not bound by the recommendations of the Medical Board who had examined the peti tioner. After going through the papers of record, this Court does not find that denial of disability pension under aforesaid Rule justifies action on the part of the respondents. The perusal of Annexure C. A.-4 to the counter affidavit itself shows that on the direc tions of the respondents, the petitioner submitted himself for the medical ex amination conducted by the Medical Board, before military hospital, Dehradun by getting himself admitted in the hospital on 24-07- 1998. He was examined on 31-07-1998,"and a report dated 7th August 1998 was prepared, in which it is specifically mentioned that the 20% disability of 'multiple Ventricular extra Systoles' continues, and as such, it was so reassessed for next two years w. e. f. 22-0. 1-1999 to 21 -01 -2001. Annexure C. A.-5 to the counter affidavit, further shows that all the papers, including the X-ray film, were sent to the Chief Control ler of Defence Accounts (Pension), Allahabad, for their consideration. No doubt, the respondents had an au thority under Clause (b) of Rule 17 of the Entitlement Rules, 1982, to disa gree with the recommendation of the Medical Board, but the authorities were required to disclose reasons for disagreeing with the recommenda tions. The impugned order, which is Annexure-3 to the petition (also Annexure C. A.-6 to the counter affidavit), only discloses that after con sultation with Medical Advisor (Pen sion), it was found that the disease has been reviewed and reassessed and it is now less than 20% (by 1-5%), as such, the petitioner is not entitled to disabil ity pension. On what basis this con clusion has been drawn against the papers on record submitted by the au thorities, who examined the petitioner, is not disclosed? As such, the im pugned order suffers from arbitrariness and cannot be upheld. Merely for the reason that Clause (b) of Rule 17 of the Entitlement Rules, 1982, empow ers the competent Medical Authority to modify the recommendation cannot justify denial of disability pension in above circumstances, as no reason has been assigned for such modification or disagreement.;