K RADHAKARISHNAN NAIR Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONER is aggrieved by the denial of disability pension. The impugned order is Ext.P5. There is also a counter affidavit. Learned Central Government Standing Counsel referring to the impugned order and the counter affidavit submits that since the disability, Neurosis (300), is constitutional, petitioner is not entitled to get the disability pension. There is no dispute that the disability has been assessed temporarily to 20%. According to the impugned Ext.P5 order the disability is not either caused or aggravated by military service. Since the learned counsel for the petitioner submitted that the recommendation of the medical board is in his favour, a direction was issued to produce the medical records. It is seen from the medical records that the medical board has certified that the disability did not exist before entering service and yet it is stated that the disease is constitutional nature. More interestingly, after assessing the disability to 20% temporarily, there is a recommendation for disability pension which reads as follows: "Disability as applicable". There is no dispute that under Regulation 173 of pension regulations for the army, in case there is 20% or more disability, a person invalided out of service on that accout is entitled to disability pension, in case the same is caused or aggravated by military service. The report of the medical board itself shows that the disease did not exist prior to entering the service. The specialist opined that there was a sudden fall and there was no history of any seizure, head injury or fever. The case of the petitioner is that the fall happened during the rigorous training. Learned Central Government standing counsel submits that in view of the decision of the Supreme Court in Controller of Defence Accounts (Pension) and others v. S.Balachandran Nair [Mil LJ 2005 SC93], petitioner is not entitled to get pension. That was a case where the medical board had opined that the disease was not attributable to service. In this case except for the casual observation that the disease is constitutional nature, all other assessments as per records would show that the disease is either attributable to or aggravated by military service. The very first entry in the assessment record is that the disease did not exist prior to the entry in service. There is also recommendation for disability pension. In view of the opinion of the medical board itself, the petitioner is entitled to get disability pension. There is nothing on record to show any basis or justification for the entry that the disease is constitutional. Since the assessment was that the disability is temporary, it is made clear that the payment of pension is subject to review.

(2.) WRIT petition is hence disposed of directing the respondents to grant the disability pension to the petitioner assessing the disability to 20%, including arrears, within three months, subject to the liberty to the respondents to have the same reassessed by the review medical board. Till such time the pension as above shall be paid.