THANKACHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner is aggrieved by the discontinuance of disability pension. Petitioner was enrolled in the Army on 5.2.1962 as a Recruit. Suffering from Central Choroiditis (both eyes) and Duodenal Ulcer petitioner was discharged from the service on 31.3.1986. Respondents have a case that the petitioner had already reached the normal term of retirement. However, the fact that he had the disability at the time of discharge is not disputed. It is seen from the counter affidavit that the petitioner had been undergoing treatment since June, 1983 when he was placed under the Medical Category BEE (Temporary). After two periods of such temporary placement, he was placed under Medical Category BEE (Permanent) with effect from 28.12.1984 as per Ext.R4(c). Thereafter he developed Duodenal Ulcer since November, 1985. It is stated in the counter affidavit that the Release Medical Board had assessed 60% composite disability at the time of discharge as per Ext.R4(d). The Chief Controller of Defence Accounts (Pensions) Allahabad, however, accepted the disability at 20% and the petitioner was being paid the disability element of pension for 20% with effect from 1.3.1986 to 21.1.1991 as per Ext.R4(e). Thereafter the amounts were revised as per Ext.R4(f). On expiry of the period of five years, the petitioner was examined by the Resurvey Medical Board at INHS Aswini on 20.12.1990. On the basis of the report, the disability element of pension continued from 22.1.1991 to 19.12.1995 as per Ext.R4(h).The petitioner was again brought before the Resurvey Medical Board at INHS Sanjivani on 29.12.1995. It is admitted in the counter affidavit that "the percentage of disability was reassessed at 60% by the Re - Survey Medical Board". The relevant proceedings have been produced as Ext.R4(i). However the award of disability pension was discontinued by the Chief Controller of Defence Accounts (Pensions) Allahabad, who rated the disability to be less than 20% for a period of ten years from 29.12.1995. The decision was communicated as per Ext. P2. Petitioner took up the matter in appeal as per Ext. P3 before the Government of India but the Appellate Authority rejected the appeal. However, it is stated in Ext. P4 that the Appellate Medical Authority assessed the disablement at less than 20% for five years.

(2.) The contention of the respondents is that merely because the Medical Board assessed the disability of the petitioner at 60%, petitioner will not be automatically entitled to get the pension. Placing reliance on Ext.R4(m) Rules - Entitlement Rules to Casualty Pensionary Awards to the Armed Forces Personnel, 1982 (hereinafter referred to as the Rules), it is submitted that the recommendations of the Medical Board can be reviewed by the Medical Advisers of Pensions attached to the office of the Chief Controller of Defence Accounts (Pensions), Allahabad. The reason is that "since the Medical Boards functioning at various Military Hospitals cannot be expected to be uniform in their assessment of disability and deciding attributability/aggravation factors, Medical Advisers of Pensions/Joint Director Armed Forces Medical Services, who are specialists ensure uniform application of Entitlement Rules".

(3.) The question is once the duly constituted Medical Board makes an assessment of the disability of a patient after examining the patient, is any other authority justified in making a reassessment and that too bringing the disability below the eligible limits, without examining the patient Is such a review permissible at subsequent assessments also If so, what is the procedure thereof. Appendix D to Ext.R4(m) gives the latest version of the concerned Rr.17 and 27. R.17(b) and (c) are relevant. They read as follows:-