R K KAPOOR Vs. UNION OF INDIA

JUDGEMENT

(1.) The undisputed factual matrix which resulted in filing of the present writ petition falls in a very narrow compass. The petitioner was selected in the year 1957 for commission in the Indian Army by Service Selection Board held at Meerut (UP). Prior to his joining the Army, he was subjected to medical fitness as well as physical fitness tests and was examined by the medical board of the Military Hospital at Meerut Cantonment. After successful completion of training, he was commissioned and posted to Brigade of Guards of the Indian Army on 13th December, 1959. The petitioner along with this unit served in various field and operational areas including J&K, North East, and Nagaland etc. Later, the petitioner was also deployed in operational area Kutch in 1965 and took part in Indo Pak war 1971. During March-April, 1965, the petitioner underwent a medical board wherein he was graded low medical category of 'B1' (temporary) for Bilateral Perceptive Deafness. The medical board assessed the medical category of the petitioner as Bl(permanent) in June, 1967. Indian Army introduced the system of medical classification in the year 1971 and the petitioner was subjected to re-classification medical board at Military Hospital, Wellington and was classified as S1H2 (Permanent) A1P1E1. The petitioner was not promoted in the year 1982 and was sent in Jun, 1983 to INHS Aswini (Mumbai) for invalidment medical board. The petitioner was examined by the medical board and was invalided out of military service with 40% disability attributable to military service. He was boarded out on 23 August, 1983 on account of Bilateral Sensori Neural Hearing Loss. The authorities sanctioned 40% disability of the petitioner vide their letter dated 22.9.1984, copy of which has been annexed to the writ petition as Annexure-P1. This disability pension was payable to the petitioner in addition to the normal pension which he was getting. By the passage of time there was further deterioration in the condition of the petitioner and the disability of the petitioner was increased to 50% from 40%. In February, 1995 at Army Hospital, Delhi Cantonment, the petitioner was subjected to a Re Survey Medical Board which assessed the disability of the petitioner as 50%. However, the disability element of 50% was declined by the CDA(P) vide their letter dated 14th July, 1995 which reads as under:-

(2.) Against the said order, the petitioner filed an appeal before the competent authority which was not accepted and the disability was kept at 40% and the same was conveyed to the petitioner vide letter dated 1.2.2006.

(3.) No counter affidavit has been filed on behalf of the respondents. However, it was not disputed that the order of the CDA(P) rejecting the claim of the petitioner is in variance to the recommendation of the invaliding medical board/re-survey medical board. We have no hesitation in holding that the action of the CDA(P) denying the disability pension to the petitioner in terms of the medical board without subjecting the petitioner to an appellate board was without jurisdiction. It is also clear that no opportunity was granted to the petitioner and the order of pension authorities cannot be supported on any ground. In fact, this question is no more re integra and has been squarely answered by a recent judgment of a Division Bench of this Court in the case of Rajender Singh v. Union of India and others, WP(C) No. 13733/2005, decided on 27th July, 2006, where the court held as under:-