L NIZAMUDDIN Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner was recruited in the Indian Army on 3rd December, 1968. At the time of his enrolment in the Army he was considered medically fit and fixed in medical category 'AYE'. Petitioner successfully completed his training and passed out from the Training Centre on 4th March, 1970. He was thereafter posted to No.4 Wing Air Force, Agra. In December, 1972 he was reclassified as Leading Air Crafts-man and on 6th May, 1976 he was promoted to the rank of Corporal. In 1983 he was promoted to the rank of Sergeant. On 19th January, 1994 he was posted at Mysore on promotion to the rank of Junior Warrant Officer. It is at this place that he developed hearing loss because of the stress and strain of service. Medical checkup was carried out by medical authorities of the Air Force. Wherein it was opined that he was suffering from "Sensori Neural Hearing Loss (bilateral)". Accordingly, the petitioner was down graded in medical category to "CEE" (permanent) by Air Force Command Hospital, Bangalore. On 15th April, 1996 he applied for extension of service for which purpose he was referred to Air Force Command Hospital, Bangalore for opinion of ENT Specialist. The Senior ENT Specialist Group Captain S.K.Nanda after examining the petitioner vide his report dated 4th May, 1996 recommended the petitioner as fit for further extension of service in low medical category "CEE (Permanently)" in his trade. On 8th May, 1996 the Senior Medical Officer Flt. Ltd. C.M.A. Belliappa after re-examining the petitioner recommended his case for grant of extension of service as the petitioner was found fit. It is his case that on 23rd May, 1996 when Senior Medical Officer Flt. Ltd. Bala Subramanyam returned from leave he deleted the remarks given by the officiating SMO. Instead of the remarks fit given by the officiating SMO. Mr.Balasubramanyam changed these remarks into unfit for extension of service. This he did with malafide intention. Flt.Lt. Balasubramanayam never examined the petitioner personally for his disability nor he was an ENT Specialist and in any case had no power to over-rule and supersede, the report given by a Senior Adviser and Professor of Department of ENT. In view of the remarks given by Balasubramanyam, the respondent No.3 vide his order dated 18th July, 1996 declined to grant extension of service to the petitioner rather ordered his discharge effective from 31st December, 1997. Being aggrieved, the petitioner on 8th August, 1996 made representative to respondent No.4. On 19th February, 1997 Unit Adjutant acting on behalf of respondent No.4 informed the petitioner that since he was in Category "CEE" (permanent) and his medical category being not attributable to service hence was not eligible for grant of extension of service. That his discharge order passed stood good. Aggrieved by this order he has preferred this writ petition.

(2.) Mr.R.N.Sharma, counsel for the petitioner contended that on-set of disease was admitted during the course of employment. Therefore, it cannot be said that the petitioner did not suffer from this disability on account of his trade. In fact his hearing was impaired and the loss of hearing was due to his trade. This fact has been admitted even by the respondent in its counter Affidavit in para 6 which reads as under "That while carrying out his routine trade duties he developed "SENSORI NEURAL HEARING LOSS" and was placed in Low Medical Category "CEE"(P)". This is a clear admission on the part of respondent that the disability was caused to the petitioner on account of his routine trade duties. When he joined the Army no note was appended by the Medical Board indicating that he was suffering from hearing loss. On the contrary the Medical Board categorically opined his medical category as "AYE" meaning thereby that he was medically perfect. He joined service on 3rd December, 1968. He completed his training in March, 1970 and the hearing was effected only in August, 1994 i.e. almost after 24 years after his joining service. It cannot be said that this is not attributable to service. Petitioner also placed reliance on the Medical Board proceedings of the year 1994 and 1997, to say that Medical Board of 1994 admitted that the disability was contacted by the petitioner while in service. It was nowhere been explained by the respondent as to how it was not attributable to service. As per policy letter issued by the Head Ouarter dated 6th November, 1995 para 4(C)(V) the petitioner would be entitled to extension in service if his disability was attributed to service. Since, the Medical Board opined that disability was in the course of employment and aggravated due to trade, therefore, it cannot be said it was attributed due to routine trade duties.

(3.) Before dealing with the relevant contentions raised by Mr.R.N.Sharma, counsel for the petitioner and Mr.Alpana Poddar, counsel for the respondents at the bar, Mr.Sharma wants this courts to place reliance on the provisions of Regulation 173 of Pension Regulations and the rules governing the grant of extension in service issued by the respondent. Provisions of Regulation 173 of the Pension Regulations of the Army and Rule 7(b) of Appendix II to Pension Regulations which are reproduced as under.