BHAJAN LAL Vs. UNION OF INDIA

JUDGEMENT

(1.) The above writ petition has been filed seeking for the issue of a writ to declare that discontinuation of the disability pension of the petitioner with effect from 21.12.1994 maybe declared illegal and the petitioner may be held entitled to the same without any interruption, with all consequential benefits by quashing the decision of the first respondent rendered on appeal against the order of second respondent with 18% per annum till the date of actual payment.

(2.) It is unnecessary to advert to all the details exhaustively set out in the writ petition or even in the reply filed. It is a matter of record that the petitioner was enrolled in the Army on 22.11.1962 as a recruit who became Gdr (Sepoy) w.e.f. 10.7.1963 was operated on 11.1.1986 for the disease "PERFORATION DUODENAL ULCER" and again for the same operated in January 1988. Thereafter, he was said to have been down graded to medical category BEE (Temporary) for six months with effect from 7.4.1986 and to medical category CEE (Temporary) for six months with effect from 20.11.1986 on review by Medical Board. It appears that there had been periodical review by the Medical Board and ultimately the petitioner was discharged from service w.e.f. 17.7.1988, under Army Rule 13 (3), item I(i)(a). The petitioner was sanctioned disability pension by the office of the Chief Controller of Defence (Pension), Allahabad in PPO No. 3242/88 at Rs. 165/ - per month, in addition to the service pension for the period between 17.7.1988 and 24.4.1990. Subsequently, on the basis of re -assessment made by the Medical Board, the same was continued for the period from 25.4.1990 to 20.12.1994. Thereafter for the period subsequent to 20.12.1994 for the purposes of reassessment of the disability another Review Medical Board appears to have been held and on the basis of the assessment by the reassessment Medical Board of the disability of the petitioner to be at 30% (permanent), the papers appear to have been submitted to the Competent Authority but the Chief Controller of Defence Accounts (Pension), Allahabad appears to have, on perusal of the service/medical documents, himself assuming the role of the Appellate Medical Authority has found that the disability has improved and in turn chose to assess the disability at less than 20% (15 -19%) for five years. As a consequence of the same, second respondent appears to have held that the petitioner is not entitled of disability pension with effect from 21.12.1994. Aggrieved, an appeal appears to have been filed and the first respondent in turn rejected the claim of the petitioner. Hence, the above writ petition.

(3.) The above narrated factual position is not in serious dispute, in the hands of the respondents, but what is stated for the respondents among other things in their reply (internal pages 6 85 7) is as follows: - "During the admission period in the Hospital, The Re -survey Medical Board Proceedings were finalised by the Command Hospital, Western Command (Medical Board Proceedings dated 1 December, 1994 is enclosed as Annexure R -10). The medical board has assessed his disability at 30% for permanent. But the Re -Survey Medical Board is only the recommendatory medical authority. Therefore, its opinion has not been accepted by the Medical Advisor (Pension) at Chief Controller of Defence Accounts (Pension), Allahabad (Competent Medical Authority) and percentage of his disability was assessed by them at less than 20% (15 -19%) for 5 years. The highest appellate authority that is Government of India, Ministry of Defence has also agreed with the opinion of the Medical Advisor (Pension) at Chief Controller of Defence Accounts (Pension) Allahabad as explained above and rejected the appeal submitted by the petitioner against the decision of the Chief Controller of Defence Accounts (Pension), Allahabad/