SURAJ MAL EX SEP Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was enrolled in army service on 4th September, 1941. At the time of induction in service, he was medically examined. After having been cleared by the Medical Board he was enrolled as combatant soldier. The Medical Board which examined the petitioner did not find any deficiency nor any disease from which the petitioner could be suffering. After a long gap the petitioner developed physical ailment. He reported the matter to the Army Medical Authorities. The Medical Authority diagnosed his disease as "CERVICAL LYMPHADANITS" and prescribed the treatment. However, when inspite of the treatment the petitioner could not be cured, the Medical Board was constituted to assess the percentage of disability element of the petitioner. The Medical Board assessed the disability ailment to be 20% and recommended the petitioner to be invaliding out of service. The Commanding Officer sanctioned the discharge alongwith 20% disability w.e.f. 6th September,1949. The disability pension was sanctioned w.e.f. 7th September, 1949. This disability pension petitioner received continuously. The Resurvey Medical Board was held at Army Base Hospital, Delhi Cantt. on 12th January, 1984. The Re-survey Medical Board endorsed the continuation of disease and assessed the disability at 20%. However, the report of the Re-survey Medical Board was not given to the petitioner. The petitioner received the disability pension upto 26th January, 1984. The DA (P) Allahabad rejected 20% disability pension claimed by the petitioner because the DA (P) Allahabad disagreed with assessment made by the Re-survey Medical Board. The DA (P) Allahabad of its own assessed the disability element at 11 % to 14% The intimation of the same was not given to the petitioner. However, the Officer Incharge vide letter dated 13th October, 1984 informed the petitioner that since his disability element has been assessed at 11% to 14%, therefore, he was not entitled to pension. He was, however, advised to file an appeal. The petitioner filed an appeal on 7th November,1984 but the same was rejected by the authorities on 13th December. 1985 stating therein that his percentage having been re-assessed at 11% to 14% he was not entitled to disability pension. The petitioner was again called by the Re-survey Medical Board which was held on 12th July,1986 at Army Base Hospital, Delhi Cantt. On the discharge slip which was given to the petitioner, his disability element was not endorsed but it was endorsed that the disease continued and assessed the disability element at 20%. Still the disability pension was not paid. Hence petitioner filed appeal on 19th December, 1986, the same was rejected on 29th September, 1987 on the ground that his disability element was less than 20%. DA (P) Allahabad assessed it at 15% to 19%. According to the petitioner the Re-survey Medical Board never assessed the percentage of the disability less than 20%. The petitioner again preferred appeals on 5th March, 1988 and 18th May, 1990 respectively. Later appeal was sent to the Supreme Commander of the Military. The Record Office replied vide letter dated 12th August, 1990 that the Board re-assessed his disability at 20% permanent and final. But the Ministry of Defence rejected his appeal on the ground that his disability was less than 20% for life. This was mis-statement of fact and contrary to record. Hence this petition.

(2.) The respondent in its defence primarily relied on the Re-survey Medical Board held in January, 1984 which assessed the disability of the petitioner at less than 20%. Hence according to respondent the petitioner in view of this report of the Medical Board is not entitled to disability pension after January, 1984. It has, however, been admitted that after two years the petitioner was re-examined by the Re-survey Medical Board on 12th July, 1986. This Medical Board assessed his disability at 20% permanent and final. The matter was recommended to the DA(P) for paying disability pension from July, 1986 but the DA (P) Allahabad declared the disability to be less than 20% i.e. 15% to 19% for the period 1986. For the year 1984 the Re-survey Medical Board had assessed his disability at 11% to 14%, therefore, the petitioner's request was rightly rejected. The assessment of the Re- survey Medical Board in July, 1986 at 20% had been reviewed by the DA (P) Allahabad which the said authority was competent to do so. This the DA (P) Allahabad did in consultation with the Medical Adviser attached to its office, whose decision is final as far as the degree of disability is concerned.

(3.) After hearing counsel for the parties and perusing the record, it is apparent that the Re-survey Medical Board examined the petitioner in January, 1984 and submitted its report on 12th January, 1984 The original record was shown which show that the Medical Officer assessed petitioner's disability to be 20% permanent. But the President of Re-survey Medical Board Dr.D.K.Basu, Lt.Col.AM(C) reduced the same to 11% to 14%. Therefore, so far as the report of the Re-survey Medical Board dated 12th January, 1984 is concerned, counsel for the petitioner fairly conceded that in view of this report the petitioner cannot claim disability pension from January, 1984 till June,1986. The second Re-survey Medical Board was held in July,1986 which Medical Board after re-examining the petitioner opined that his disability was 20% and permanent and this was attributable to service. The contention of Ms.Jyoti Singh that the opinion of the Re-survey Medical Board can be altered by the DA (P) Allahabad, to my mind, is without force. The DA (P) Allahabad without getting the petitioner re-examined could not have rejected the disability element assessed by the Re-survey Medical Board. The contention of Ms.Jyoti Singh that the DA (P) Allahabad acts on the advise of the Medical Adviser is also without substance. The Re-survey Medical Board of 1986 had opportunity to examine the petitioner in person and that Board after going through the record and after examining the petitioner made the assessment. An Adviser without having the opportunity to physically examine the individual could not have said that the disability was 15% to 19% nor any documentary evidence has been placed on record to show as to how the Medical Adviser of DA (P) Allahabad came to the conclusion that the assessment was between 15% to 19%. In the absence of any reasoning given justifying the down grading of the assessment made by Re-survey Medical Board the assessment arrived at by the DA (P) Allahabad cannot be sustained. To my mind, the respondent has miserably failed to show that Re- survey Medical Board of 1986 committed any error in assessing the disability of the petitioner to be 20% and permanent. In the absence of the same, I find no merits in the defence raised by the respondent. It has to be supported by cogent reasons. In the absence of any reasons and justification, the DA (P) Allahabad cannot be allowed to act arbitrarily. Therefore, on this line of argument, I find no merits and hold that the disability of the petitioner w.e.f. 12th July, 1986 has to be assessed at 20% permanent and final and disability pension should be restored w.e.f. 12th July, 1986. Petitioner be paid disability pension and the arrears be paid within a period of four weeks. The rule is made absolute with no order as to costs.