UNION OF INDIA Vs. SUNNY

JUDGEMENT

(1.) The appellants herein were the respondents and the respondent herein was the petitioner in W.R(C). No.35634 of 2007. The respondent/petitioner was a Constable in the Border Security Force. He joined the service as such on 16.8.1990 and subsequently, he was deputed to the Computer Wing for the Border Fencing and Flood Fighting Project of the Indo-Pak Border. He had worked there during the period from 1998 to 2004. Thereafter, he was posted to 60 Battalions and while working there he lost vision of his left eye and his right eye vision gradually started diminishing. Diagnosis revealed affliction of Retinal Vascultis on both eyes and Vitreous Hemorrhage on the left eye. The petitioner was directed to appear before the Medical Board. The Medical Board initially placed him in low medical category due to his diminishing eye sight and thereafter under the medical category S1H1 A1P3(T-24)E3(T-24) with effect from26.5.2006. On 22.2.2007, as per Ext.P1 he was adjudged medically unfit to continue in the service of B.S.F. with 80% permanent disability. Pursuant to Ext.P1 proceedings, the petitioner was issued with Ext.P2 show cause notice as to why he should not be retired for on the ground of physical unfitness. Later, as per Ext.P3 dated 9.3.2007, the name of the petitioner was struck off from the strength of the said unit with effect from 13.4.2007 and was thus made to retire from service with effect from that date. After such retirement, as per Ext.P4, the petitioner was granted only the normal invalid pension. Aggrieved by the denial of the disability pension, the petitioner had filed Ext.P5 representation. But the request of the petitioner was not acceded to and the same was rejected as per Exts.P6 and P7. It was stated therein that the disease was not one covered under the list of classification of diseases that could be contracted/attributable by service under Schedule IA, R.3(4) of the Central Civil Service (Extraordinary Pension) Rules (for short "the Rules"). The petitioner approached this Court challenging Exts.P6 and P7 orders.

(2.) A counter affidavit was filed in the Writ Petition on behalf of the respondents. Two reasons were assigned therein for rejecting the request of the petitioner. Firstly, it was contended that the percentage of disability which culminated in the loss of vision was not directly attributable to the service conditions and secondly, that the disease is not one covered under the list of classification of diseases that could be contracted/attributable by service under Schedule IA, R.3(4) of the Rules.

(3.) After considering the rival contentions, the learned Single Judge declined to accept the contentions of the appellants/respondents. It was found that the person who contracted the disease which ultimately resulted into the disability could not be denied the disability pension merely because the disease which resulted in such disability is not one covered under the list of classification of diseases that can be contracted/attributable by service under Schedule IA, R.3(4) of the Rules. To arrive at the said conclusion and to issue consequential directions, the learned Single Judge relied on the decision of this Court in Vijoy v. The Director General of B.S.F. & Anr. reported in (2005 (4) KLT 919 = ILR 2006 (1) Ker. 43) wherein it was held that the diseases enlisted under the Schedule could not be taken as an exhaustive one. The learned Single Judge relied on the said judgment and based on the finding of the Medical Board that the disease was contracted during the service of the respondent/petitioner and that it was aggravated on account of the stress and strain of service, found that it is attributable to service conditions. In the absence of a finding that the said disease was contracted due to genetic conditions or contributed by the petitioner, it was found that it could only be attributable to service conditions. Accordingly, Exts.P6 and P7 were quashed and consequential directions were issued to the respondents therein. This appeal has been filed feeling aggrieved by the said judgment of the learned Single Judge.