KANCHAN MALA SRIVASTAVA Vs. UNION OF INDIA

JUDGEMENT

(1.) Through this writ petition, which was filed by Rajesh Kumar Srivastava, an invalidated Army Captain, who died on 4.9.1997 and substituted by his widow and minor children vide order dated 6.9.2000, a prayer has been made to quash the order dated August 2, 1991, as contained in Annexure-12 and the order dated January 8, 1996 as contained in Annexure SA-1.

(2.) The writ petition asserts, inter alia, that at the time of joining of the U. P. Sainik School, the writ petitioner was medically examined at Command Hospital, Central Command, Lucknow and was found medically fit and nothing abnormal detected and on the basis of that medical test he was admitted ; having completed his studies he appeared in the competitive examination for selection in National Defence Academy and on account of his ability and talent, was admitted after his examination at Military Hospital, Bhopal, where also nothing abnormal was detected and was found quite fit ; after completion of his graduation from the National Defence Academy, Pune, he joined Indian Military Academy, Dehradun, as trainee ; after completion of the training he joined Indian Army as Second Lieutenant on 2.6.1982 ; and was promoted on 12.6.1984 as Lieutenant ; during his medical examinations from 1982 to 1984 nothing abnormal was detected ; on 12.6.1985 he was promoted as Captain ; in July, 1985, he was posted at Chamb, Nathus, Tibba and Teri Sector in Jammu and Kashmir, where clean and pure water was not available and he had to drink dirty nelah water and do 24 hours duty due to which he developed stomach trouble and acute constipation problem ; despite complaint he was not given any medical aid ; in September, 1985 he was sent for training of Junior Staff Commission at Belgaon where he developed further trouble inasmuch as bleeding started from his mouth and was sent to Military Hospital, Belgaon, where, too, he could not get proper medical treatment ; thereafter he was referred to Command Hospital, Southern Command, Pune, where Duodenal Ulcer was detected but no mental abnormality was found, from where he was discharged on 13.11.1985 (report Annexure-1) and posted at 10, Bihar Regiment at Ranchi ; while he was going on 2.5.1986 on Scooter from Officer's Colony, Ranchi to Officer's Mess for taking dinner, he met an accident and received certain injuries but he was not given proper medical, aid rather given only the first aid ; his father was informed of his condition vide letter as contained in Annexure-2 on receipt of which his father went to Ranchi where he was insisted by the Officer-Commanding Rear Major Ganesh Sah to take him home on which he was brought home by his father ; his father got him admitted in Command Hospital, Lucknow, where he received treatment, including psychiatric treatment from 10.6.1986 to 15.12.1986 ; thereafter he joined his duties in December, 1986, as the officer concerned had an apprehension that he is suffering from mental disease he was again sent for medical examination at Medical Hospital, Danapur, for psychiatric report ; after examination vide report dated 8.6.1987 (as contained in Annexure-3) nothing abnormal was detected ; on 12.10.1987 he was again examined by a psychiatric and it was for the first time that a report (as contained in Annexure-4) was made regarding abnormality in his behaviour and mental out-look ; in April, 1988 he was again sent for medical examination and it was this time diagnosed that he is suffering from schizophrenic psychosis ; his father received notice dated 25.5.1989 (as contained in Annexure-6) under Rule 15A sub-para (2) of the Army Rules, 1954, requiring him to prefer a petition against the findings of the Medical Board to the Chief of the Army Staff through President, Medical Board ; his father was sent yet another letter dated 29.5.1989 (as contained in Annexure-7) declaring him invalid on the basis of the report of the Medical Board ; his father sent his reply dated 14.6.1989 (as contained in Annexure-8) to the Chief of the Army Staff through the President of the Medical Board against the aforesaid invalidment report of the Medical Board ; vide order dated 26.4.1990 (as contained in Annexure-11) he was declared invalid for Military service ; thereafter he received the impugned order (as contained in Annexure-12) ; on account of the aforesaid disablement and invalidment, he is fully entitled at least for disability pension, if attributable and aggravated by Military service ; against the aforesaid letter be made a representation to the Under Secretary on which he received the impugned order (as contained in Annexure-SA1) ; from the facts aforementioned by no stretch of imagination, it can be said that the disease in question is constitutional in nature ; he is fit for all services and his behaviour and conduct is normal ; his disability, if any, has developed during his employment on account of hard life and accident and thus he is fully entitled for disability pension.

(3.) In the counter-affidavit, which has been filed by Lieutenant Colonel S. Sudarsan posted as Qualified Specialist (Psychiatric), Command Hospital (EC) Calcutta, it has been stated, inter alia, that Schizophrenia is a constitutional disorder which can manifest itself at any time, it is chronic and has frequent relapses ; the disorder is conceptualized as a syndrome that is heterogeneous in its cause, pathogenesis, presenting picture, course, response to treatment, and outcome ; unless the symptoms are manifested, there are no means of detecting or predicting the possibility of this disease at the time of selection ; promotion in Army is a routine administrative matter ; armed forces makes arrangement for safe drinking water even in the most remote and uncongenial areas/places where troops of the Indian Army has to serve ; and serving at Field Areas is an essential service requirement for an army personnel and that cannot be any exception to it ; after the petitioner was diagnosed as suffering from Duodenal Ulcer, he was given complete medical treatment and kept under lower medical category for surveillance and on full recovery was upgraded, there is no medical record whatsoever of any injury in relation to the alleged scooter accident, hence it is evident that the nature of injury, if at all sustained, was trivial ; the letter of Major Ganesh Sah (Annexure-2 to the writ petition) itself shows that the petitioner was already showing early features suggestive of Schizophrenia prior to the Scooter accident ; the allegations made in Paragraph 12 are denied and in reply it is submitted that the petitioner was duly admitted in the Military Hospital and Schizophrenia was diagnosed and was treated for the same and on recovery was placed in medical category S-3 (T-24) with effect from December 18, 1986 ; report on AFMSF-10 (Armed Forces Medical Services Form) (Annexure-3 to the writ petition) was initiated in June, 1987, for routine review and re-categorisation which was due and his behaviour was reported as normal as he remained in a state of remission ; in October, 1987, the petitioner showed feature of relapse of Schizophrenia for which a fresh AFMSF-10 for his hospitalisation and treatment was initiated ; surprisingly the petitioner has made no mention of his AFMSF-10 initiated at the first hospitalization in May/June, 1986 ; it is wrong to say that abnormality in his behaviour was detected for the first time in October, 1987 ; the fact is that it was detected for the first time in the year 1986 ; in April/May, 1988, he had a relapse of Schizophrenia again, Schizophrenia was not caused by the alleged Scooter accident as claimed by him ; the military service has no bearing either in causation or aggravation in the case of the petitioner and is a very serious aliment and thus it would not be in the interest of Army to retain him ; in Annexure-13 the petitioner himself admits that he is still not mentally well and is continuing treatment and accordingly his contention that he is normal and fit for service is incorrect ; the deponent himself is a qualified psychiatrist with full sense of responsibility submits that a person suffering from Schizophrenia is prone to unpredictable and unprovoked violent behaviour and is a threat to safety of others and self as such also he is not fit for military service ; as the disability pension is granted to a person only when the disability is either attributable to or aggravated by military service ; the deponent respectfully submits to refer to the opinion of Col. Rajendra Singh, Senior Adviser (PSY) of CH (EC), Calcutta, as contained in Annexure-CA1 ; thus this writ petition be dismissed which has been filed on the grounds which are wholly misconceived and unsustainable in law. Annexure-CA1 states, inter alia, the history of the petitioner from time to time on account of the disease in question and even of filing of a Divorce case by his wife.