SHIV LAL Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, who was denied of his disability pension provided under Para 173 of the Pension Regulation for the Army 1961 seeks through a prayer by a writ of mandamus to release such disability pension. The contention is that the petitioner had joined the Army as Sepoy on 18.08.1972 and he was discharged on 23.08.1976 after medical invalidation made on a report of the Medical Board that he had contracted a disease called Atrophic Rhinitis. As per Para 173 of the Regulation, which details the procedure for obtaining disability pension, the question whether disability is attributable to or aggravated to Military Service shall be determined under the Rules in Appendix II. Relevant Rules are Rules 3 and 8. Rule 3 requires a causal connection between disablement and military service and Rule 8 states that attributability/aggravation shall be considered if causal connection between death/disablement and military service is certified by appropriate medical authority. This latter rule mandates that the employee obtains a certification from the appropriate medical authority before a claim of disability pension could be made. Admittedly, the petitioner had applied through a representation for certifying him as having contracted a disease attributable to Military Service to claim disability pension. This appears to have been rejected and an appeal filed by him to Central Government was also dismissed on 15.04.1991 observing that the disease was not attributable or aggravated to the Military Service. Neither the order of the Medical Board nor the decision by the Central Government, as per the statutory rules, were specifically under challenge before any Court. On the other hand, it appears that the petitioner had filed a civil suit seeking for a declaration that he was entitled to disability pension. The suit was dismissed on the ground of a bar of limitation and want of territorial jurisdiction, although it found that the disease, which the plaintiff had contracted was attributable to the Military Service. I have gone through the judgment of the Civil Court and I find that there is no discussion with reference to the finality of the decision of the Medical Board as per the Rule or the decision of the Government in an appeal. On the other hand, it has undertaken an exercise of adjudication as a matter of mere inference that if the Army Personnel did not have the disease at the time of entry into service and he later had a particular type of illness, it should only be taken as resultant of such service. When the law and the relevant rule would require the assessment of a medical disability to be done through a procedure, the Civil Court's finding by a simple inference cannot avail to the petitioner to contend that on the basis of such finding recorded in the Civil Court judgment alone, he is entitled to be considered for disability pension now. If the petitioner's claim through a civil suit was ultimately rejected on the issue of limitation, the petitioner himself did not let it rest there. He had preferred an appeal to an Appellate Court where also trial Court's decree was confirmed. After the Civil Court decree, a writ petition has now been filed urging afresh the same contentions raised before the Civil Court.

(2.) Learned counsel refers me decision of a Division Bench of this Hon'ble Court in Union of India and others v. Ex. Hav. CLK Wishwa Nath,2000 2 RSJ 342 that held that a disease that had arisen during the service must be presumed to have arisen out of such service and a disease which lead to an individual's discharge or death will ordinarily deem to have arisen in service if no note of it had been made at the time of individual's acceptance for service in the Armed Forces and according to the learned counsel appearing for the petitioner, the decision would enable him to press for such a claim of disability pension. The learned counsel refers to yet another decision in Gurnam Singh v. Union of India and others,1992 1 RSJ 19 that takes a similar view that a disease, which leads to an individual's discharge is deemed to have arisen in service, if no note of it was made at the time of individual's acceptance for Military Service. These two decisions, it may be noticed, were rendered in the context of a challenge to a decision by a Medical Board of the Government. If such a challenge had been undertaken before this Court soon after the rejection of the claim by the workman before the Government, it could be permissible to examine the issue as to whether either the Medical Board or the Government was justified in rejecting the claim. I feel fettered to exercise the jurisdiction to re-examine the claim of the petitioner only on account of the fact that there has intervened between a time when the Central Government had rejected the claim in the year 1981 and the filing of the writ petition in 2009, a suit before a Civil Court praying for an adjudication but which did not offer to him the relief that he had asked. If the claim had been rejected on the basis of lack of inherent jurisdiction of the Civil Court, it might be possible for a Court to examine afresh. On the other hand, the Court has found that the Civil Court had jurisdiction to undertake the adjudication but only held that it did not have territorial jurisdiction. Lack of territorial jurisdiction does not annul or invalidate a judgment. If the parties have participated in the full trial and no prejudice was shown, the decision rendered cannot become void. When the Court found that the claim of the petitioner was barred by limitation, the petitioner cannot assume that the judgment is void to make possible a fresh adjudication through a writ petition. The result of the decision in the Civil Court rejecting the petitioner's plea will constitute a res judicata between the same parties.

(3.) Learned counsel for the petitioner also urged that entitlement to pension is a recurring cause of action and the disability, which persists till today, will give to him a continuous cause of action to seek for grant of disability pension. The entitlement to pension as a recurring cause of action should be understood as a right, if it is recognized, it will enable a person to seek for payment of the accrued pension every time when such accrual takes place. If the entitlement is denied at the first place, it cannot give to a person a right to seek such entitlement again and such right cannot be understood as saved by the character of pension as a recurring right. If the entitlement to pension was rejected by the Medical Board and confirmed by the Central Government, so long as the Board's finding or the Central Government itself are not in challenge and the petitioner seeks for consideration of his claim to disability pension afresh, the prayer suffers from the vice of vexing the opposite party with the same reliefs time and again in different forums, a principle akin to res judicata which is in the realm of public policy.