SANJAY MISRA, J. - (1.) HEARD Sri G.D. Mukerji, learned counsel for the petitioner and Sri S.K. Rai, learned counsel appearing on behalf of the respondents.
(2.) COUNTER affidavit, rejoinder affidavit, supplementary counter affidavit and supplementary rejoinder affidavit have been exchanged between the parties. It has been brought to the notice of the Court that after filing of this writ petition the petitioner had died on 30.4.1997 and his heirs and legal representative have been brought on record.
(3.) ACCORDING to the petitioner he had joined the Indian Navy on 15.1.1969 and was discharged on 8.4.1978. After discharge from the Indian Navy he was enrolled in the Defence Service Corps (DSC) on 6.3.1982 and served there upto 3.8.1986 when he was discharged under the Army Rule 13 lll(iii)._The petitioner has subsequently amended this writ petition when he was served with the order of discharge on medical grounds and rejection of his appeal filed against such orders. According to learned counsel for the petitioner the respondents had not served such orders upon him but they came up with the order rejecting his claim for disability pension in the counter affidavit hence he had to amend his writ petition. The submission of learned counsel for the petitioner is based on the provisions of Pension Regulation for the Army, 1961 Part I and he has relied upon the Regulation .173 and Rule 5 to the Medical Officers (Military Pensions) Rules, 1980 as amended from time to time. According to him, the Regulation provides that unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalidated out of service on account of disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. The said disability is to be determined under the Rule in Appendix II. He states that the provisions of Appendix II are the entitlement for casualty pensionary awards and have to be read in conjunction with the guide to the Medical Officers (Military Pensions) Rules wherein Rule 5 has prescribed for a presumption upon which casualty pensionary award and evaluation of the disability has to be done. He states that Rule 5 specifically provides for the period prior to or during the service where 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. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due to service. According to him, under Rule 9 the claimant shall not be called upon to prove the conditions of entitlements and he will be entitled to the benefit of any reasonable doubt. Such benefit should be given liberally to the claimants. He submits that under Regulation 178 even after discharge the claim has to be liberally considered and Rule 14 of Rules provides for specific case with respect to the disease. He placed reliance upon paragraph 35 of Chapter VI of Guide to Medical Officers (Military Pensions) 1980 to show the circumstance under which usual claim arises. He has referred to the nature of his duty in the DSC which involves continuous patrolling duties in hazardous areas and the mental disorder can be attributed to such service. The petitioner alleges that he was diagnosed with schizophrenia in the year 1983 after he had entered the service of DSC and was receiving treatment at the time of posting till the date of discharge in the year 1986. He contends that the disability assessed was at 40% for two years while the normal requirement for the grant of disability pension is 20%. He has placed reliance upon the report of the Invalidating Medical Board which has opined that the petitioner did not suffer from any such disability at the time of his joining the DSC. The petitioner alleges that there is no family history of mental illness and therefore the conclusion of the Medical Board that the disease of the petitioner is constitutional in nature is wrong and cannot be read against the petitioner. It is stated that he was never re examined for the purpose of pension by the pension authority and hence when the respondent had failed to produce any record of such physical re-examination he could not have been denied the disability pension. The allegation of bias has also been argued against the commanding officer and it is stated that he had never fought any war nor was posted in high altitude areas. However in view of para.35 (a) and (b) the circumstance of stress factor, genetic factor and the time factor were required to be considered. The prolonged treatment of the petitioner in the psychiatric ward following his conflict with the commanding officer and his involvement in long patrolling duties for 12 hours continuously were responsible for his illness and it has got aggravated due to his military service.;