MOHAMMAD RAFIQ, J. - (1.) BRIGADIER (Retd.) V.K. Sarda, recipient of Veer Chakra, has approached this Court with the prayer that a mandamus be issued to the respondents to grant him disability pension with effect from 1.3.1997 and the letters dated 14.7.1998, 7.6.2000 and 9.5.2002 refusing to grant his disability pension, be set aside and the respondents be pension alongwith interest at the rate of 24% per annum.
(2.) THE petitioner joined National Defence Academy on 1.1.1959 and was granted Commission on 11.12.1962 in the rank of Second Lieutenant in medical category -A. He was promoted to the Rank of Lieutenant, Captain, Major, Lieutenant Colonel, Colonel and Brigadier. During his service tenure, petitioner served both in the field and operational areas. He participated in Indo -Pak conflicts of 1965 and 1971. He was for his services rendered to the nation decorated with Poorvi Star, Paschimi Star, Raksha Medal, Sainya Seval with clasps Jammu and Kashmir and West Bengal, Ucchan Tunga Medal, 25th Independence Anniversary Medal, and 9, 20 and 30 years long service Medals. He was also decorated with the prestigious Veer Chakra for displaying gallantry, leadership and devotion to duty of a high order during operations against Pakistan in December 1971. Owing to the stress and strain of service, over which he had no control, petitioner developed heart disease. The Medical Board convened on 24.1.1993 to examine the petitioner opined that the petitioner was suffering from Inchaemic Heart Disease (for short -IHD). The petitioner was invalidated out of service due to disease IHD in low medical category on 28.2.1997. It is contended that petitioner had no medical history of IHD in his family which falls for acceptance on the basis of aggravation. As per Rule 7(a) of the Entitlement Rules, it should be deemed to have arisen in service, due to stress and strain of service. This disease does not fall in any category of the diseases normally not affected by service as listed in Sr. E. of Annexure -1 of the Entitlement Rules. The report of the Medical Board was however not accepted by the Appellate Medical Authority and his claim for disability pension was rejected by letter of the Army Headquarters dated 14.7.1998 on the ground that his disability was neither attributable to nor aggravated by military service. The petitioner then preferred appeal against the non -award of the disability pension to the Central Government on 25.8.98. The Central Government by its order dated 7.6.2000 rejected his appeal. It was thereafter that the petitioner filed a second appeal before the Central Government in its Ministry of Defence, which was considered afresh by Defence Ministers' Appellate Committee on Pensions and was rejected. Communication to this effect was addressed to the petitioner on 9.5.2000. The petitioner contends that he is entitled to benefit of doubt as per Rule 4 there of and cannot be called upon to prove the conditions of entitlement as per Rule 9 of the Entitlement Rules. According to Regulation 48(a) of the Pension Regulations for Army Part -I, if an officer retires from military service on account of a disability, which is attributable to or aggravated by military service and assessed disability is 20% or over, he may on retirement to awarded a disability pension consisting of service element and a disability element in accordance with the regulations in this section. Regulation 48(b) provides that the question whether a disability is attributable to or aggravated by military service shall be determined under the Rules in Appendix -II.
(3.) SHRI Shyam Singh, learned Counsel for the petitioner has argued that the findings of the Medical Board held on 24.1.1993 clearly proved that the petitioner contracted the disability in service due to circumstances over which he had no control and his disability was aggravated due to military service i.e. due to athroma manifesting itself as IHD on account of failure in diagnosis and timely treatment. It was argued that this disease is known as Atherosclerosis of coronary blood vessels which spreads over a long time in slow process and is progressive in nature. Its progression leading to involvement of triple vessels, had taken years. It was not detected in time resulting in allowing the petitioner to perform duties in higher medical category with more stress and strain. Owing to these reasons, it was a case of aggravation as per para 4(b)(iii) of Chapter VI of the Guide to Medical Officers (Military Pensions) 1980. It is argued that opinion of the Medical Board as per Rule 423 of the Regulation for the Medical Services of the Armed Forces, 1962 has to be regarded as final. In this connection, reference was made to the judgment of Supreme Court in Ved Prakash Chawla v. Union of India (1996) 1 SCT 359 and Ram Kumar Singh v. UOI and Ors. S.B. Civil Writ Petition No. 4904/97 decided on 23.3.1999. Shri Shyam Singh, learned Counsel for the petitioner argued that the Appellate Medical Authority, which had never examined the petitioner in person, could not mechanically reverse the view taken by the Medical Board which had the occasion to examine his personally and also appreciating the nature of duties and strength and stress thereof. Learned Counsel argued that Government of India, Ministry of Defence in its letter dated 28.5.2001 sent in the context of disability pension claim of one Ex. i -Colonel addressed to the Chief of Army Staff, conveyed that it has been decided in consultation with competent medical authority that out of the disabilities viz. ID (i) Low Backache -524, (ii) IHD and (iii) Cholecystitis with Cholelithiasis 574 from which the aforesaid Ex -Colonel was found suffering at the time of release from service, the disabilities of Low Backache -524 and IHD should be recorded as aggravated by his military service. Shri Shyam Singh therefore argued that the respondents could not adopt a different approach in the case of the petitioner, when in similar circumstances, the same disease detected in another army officer was held to have been aggravated by military service. It was argued that petitioner had all along been discharging hard duties and was also at times required to work as paratrooper. The first Medical Board therefore rightly opined that Atherosclerosis of coronary blood vessels is a slow process and progressive in nature. Its progression leading to involvement of triple vessels had taken years to develop but same was not detected in time and due to failure in diagnosis, the petitioner was allowed to perform the duties in higher medical category, which aggravated the disease. Shri Shyam Singh also referred to the duty chart of the petitioner of two years immediately preceding the diagnosis of the disease to show that even during such time, the petitioner had been discharging hard and difficult duties. Referring to the opinion of Second Medical Board, it is argued that the opinion of the First Medical Board was reiterated by the Second Medical Board which clearly observed that the disease of the petitioner was aggravated by service conditions due to failure in timely diagnosis. His disability was assessed at 20%. Learned Counsel argued that even if the petitioner was retired on attaining the age of superannuation, the petitioner would be entitled to disability pension as per Regulation 53(1) of the Pension Regulations for the Army, 1961, Part -I. Learned Counsel relied on the judgment of this Court in Birbal Singh v. Union of India and Ors. S.B. Civil Writ Petition No. 3161/99 decided on 27.11.2002 and argued that in respect of similar IHD disease, the respondents were directed to grant disability pension to the petitioner in the aforesaid case. The learned Single Judge held that petitioner entitled for disability pension as the disease which lead to his discharge had arisen during service and was held to be attributable to military service. It was therefore prayed that the writ petition be allowed.;