UNION OF INDIA Vs. SHAMSHER SINGH

JUDGEMENT

(1.) APPEAL has been filed, challenging the judgment passed by the learned Single Judge in OWP 404/2000 on 21.9.2001 It seems that the respondent, a non -commissioned officer, suffered from ailment in the year 1989, which is described in medical terms as "Recurrent Malignant Fibrous Hist -iocytoma". The respondent was administered conventional treatment in 1990, 1991, 1993 and 1995. The respondent also received adjuvant radiotherapy but in spite of available treatment the ailment persisted and respondent was declared unfit to perform military duties. The respondent applied for disability pension around 21.7.1997, which was refused on the ground that the disability of the respondent was neither aggravated nor could be attributed to military services but was due to constitutional disorder of the respondent. Aggrieved of the refusal, the respondent filed OWP No. 404 of 2000, which was considered by the learned Single Judge on merits and allowed, with the direction that the disability of the respondent was 100%, vide judgment dated 21.9.2001. It is the validity of this judgment which is under consideration.

(2.) THE main submissions made in the memorandum of appeal are that the case of the respondent was considered by CCDA (P) Allahabad, in consultation with MA(P) attached to CDA(P) and was rejected on the firm finding that the disability was constitutional in nature and not related to military services. The respondent filed appeal against the order of rejection dated 7.8.1997, the submissions made in the appeal were considered and the appeal was rejected on the finding that the discharge of the respondent on the grounds of disability was neither attributed to military service nor aggravated by the same. Having filed the appeal, and availed alternative remedy, the writ petition would not be maintainable and this fact, although projected before the learned Single Judge, was not considered. On the finding of fact of the medical board and the settled position of law that even if mention was not made of the disorder at the time of entry in the service, the disorder of present nature being constitutional cannot be construed to have arisen during the currency of service. On these grounds, it is prayed that the judgment dated 21.9.2001, passed by the learned Single Judge, be set aside.

(3.) HEARD learned counsel for the parties at length and perused the entire record. From the perusal of the impugned judgment it is plainly clear that the learned Single Judge has considered the objections taken by the present appellants and answered the same by a speaking, well reasoned and legally sound judgment. The main submission of the appellants that the disease was constitutional and not attributable to army services cannot be accepted for multiple reasons.