JAGBIR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ petition under Article 226 of the Constitution of India, the petitioner has been praying for writ of certiorari for quashing the impugned order dated 1.3.1993 and for direction in the nature of mandamus requiring the respondents to pay 60% medical disability pension w.e.f. 23.7.1992.

(2.) It is the say of the petitioner that the petitioner was enrolled in the regular Army as combatant soldier after a complete medical check up on 11.12.1985 prescribed under the military rules; that the petitioner did not have any disease at the time of his enrolment/entry into military service; that the petitioner always performed his assigned duty to the satisfaction of his superiors; that the petitioner developed eye problem because of strenuous duties of artillery in the Army and he reported the matter to Army Medical Authority in the year 1990; that the Army Medical Authority administered treatment and the petitioner was placed into low medical category "EEE"; that when the disease could not be cured, a proper medical board was constituted which assessed medical disability element at 60% and also recommended invalidating out of military service; that the Commanding Officer could not provide any alternate job suitable to the low medical category and sanctioned 60% medical disability pension of the petitioner and forwarded the claim to respondent No. 3 for disbursement; that respondent No. 3 is an Accounts Officer with the responsibility of disbursing the amount of military pension claim by sanctioning the P.P.O.; that respondent No. 3 instead of disbursing the amount of 60% disability pension claim which was duly sanctioned by the competent authority, illegally and without jurisdiction, rejected the case of the petitioner vide letter dated 1.3.1993. Copy of which was never sent to the petitioner and respondent No. 2 informed the petitioner vide letter dated 20.9.1997; that the rejection letter dated 1.3.1993 issued by respondent No. 3 is illegal and without jurisdiction; that once the medical board has assessed the percentage of disability and the claim has been duly sanctioned by the competent authority, then it is not open to respondent No. 3 to ignore the same.

(3.) The respondents vide counter-affidavit contends that the petitioner was enrolled in the Regiment of Artillery on 11th December, 1985; that he was invalidated out of service w.e.f. 22nd July, 1992 due to "BILATERAL MACULOPATHY (369)" under Army Rule 13(3) Item III (iii) (of Army Rule, 1954); that the duly constituted Invalidating Medical Board arranged on him at 159 General Hospital, Firozepur Cantt on 25th June, 1992, to assess the cause, nature and degree of disablement and viewed the disability as neither attributable to nor aggravated by the military service as "IDIOPATHIC DISORDER" and not related to military service. However, the ibid Medical Board assessed the degree of disablement at 40 per cent for a duration of two years. It is further contended that though the petitioner was found fit for Army Service in primary medical examination by Recruiting Medical Officer at the time of enrolment in Army, it cannot be presumed that the individual was free from all diseases, as certain diseases like Generalised Seizures and Idiopathic disorder, cannot be detected being quescent stage at the time of enrolment as the primary medical examination does not involve various medical examination by qualified specialists; that the duly constituted invalidating Medical Board assessed petitioner's degree of disablement at 40% for two years and not 60% as stated in the petition. Since the individual was invalidated out from service in medical category "EEE", Commanding Officer cannot provide any alternative job in military service as per existing orders on the subject. The disability pension claim of the petitioner was rejected on the plea that the disability from which the petitioner suffered and on which the claim was based, was viewed as neither attributable to nor aggravated by military service by Chief Controller of Defence Accounts (Pensions), Allahabad vide letter dated 1.3.1993.