Ayodhya Prasad Pandey vs Union Of India And Others

The applicant through the medium of the instant OA has prayed for the following reliefs:

i) To call for the records of all the Medical Board Proceedings for your Lordship's perusal

ii) To set aside the orders of the Additional Directorate GeneralPersonnelServicesletter No.40431/BB/2016/AG/PS-4 (Imp-I) dt 27 October 2016,

Annexure Al.

iii) To direct the Respondents to pay the Applicant the disability pension at the rate of 50% for life after broad banding in view of Hon'ble Supreme

Court Judgement in Union of India versus Ram Avtar Civil Appeal No.418/2012 dated 10.12.2014.

iv) To direct the Respondents to pay the Arrears of disability pension with 18% interest with effect from the next day of release of the Applicant.

v) To grant any other relief as the Hon'ble members of the Tribunal may deem appropriate.

The brief facts of the case are that the applicant, was commissioned in the Indian Army (Bihar Regiment) on 27th June, 1965 and superannuated

from service on 30th June, 1995 after completion of thirty years of service. His Release Medical Board (RMB) assessed his disability ""CORONARY

ARTERY DISEASE (ANGINA)"" @ 20% for two years and opined it to be neither attributable to nor aggravated by military service being of a

constitutional nature.

It is contended by learned counsel for the applicant that the applicant being an infantry officer for major part of his service remained posted on field,

high altitude, modified field and hard stations like Jammu and Kashmir, Dagshai (Himachal Pradesh), Sikkim, Assam, Tripura and Nagaland under

inhospitable climatic conditions. It is further submitted that immediately after commissioning, while being posted at Nowshera district of Jammu and

Kashmir in the year 1965-1966, he was part and parcel of the war with Pakistan and also participated in the war with Pakistan in the year 1971. It is

also contended that the applicant served in insurgency infected area at Ind° Myanmar border for more than two years. The onset of the

CORONARY ARTERY disease for the first time happened on 8t11December, 1988 when the applicant was posted at Narain (J&K State) as

Officer Commanding of Transit Camp. This unit was staffed by Sikh troops and in the light of mutiny in some of the Sikh battalions after Operation

Blue Star to curb Khalistani Terrorism, which was at its peak, the applicant was under tremendous pressure and mental stress and strain during this

command tenure. The learned counsel contended that though it is in these circumstances that the applicant has suffered this disease, however the

respondents have in a most unfair manner denied disability pension to the applicant despite the instant matter being squarely covered by a catena of

decisions of the Hon'ble Supreme Court including Dharamvir Singh Vs. Union of India and Ors. (2013) 7 SCC 31 6and Union of India and Ors. Vs.

Rajbir Singh (2015) 12 SCC 264. Hence this O.A..

Per contra, learned counsel for the respondents at the outset contended that entitlement to disability pension is governed by Regulation 48 of

Pension Regulations for the Army 1961, Part-1 which specifically stipulates that disability pension consisting of service element and disability element

may be granted to an officer who is are invalided out of service on account of disability which is either attributable to or aggravated by military service

and is assessed at the rate of 20% or more. Learned counsel further contended that claim of the applicant for grant of disability pension was

adjudicated by the competent authority and the same was rejected on the ground that the disability, viz. ""CORONARY ARTERY DISEASE

(ANGINA)"", has been opined by Release Medical Board as a constitutional disease and neither attributable to nor aggravated by military service

(NANA). It is submitted that due weight, value and credence should be given to the opinion of the Release Medical Board, being an Expert Body,

learned counsel contended that for the aforesaid reasons, the applicant is not entitled to disability pension hence this OA should be dismissed.

We have heard learned counsel on both sides and in addition have perused the relevant record in detail. The Release Medical Board has denied

attributability on the ground that it is a 'constitutional disease not related to military service'. However, we don't find this enigmatic reason to be

adequate to justify denial of attributability. It is evident from service record of the applicant that for most of his service period he remained posted at

high altitude and hard areas. Additionally we have noted that the onset of disease is in J&K State and during a command tenure of Sikh troop in the

aftermath of operation Blue Star. Hence considering all issues we are of the opinion that the benefit of doubt in this case be extended in favour of the

applicant. Thus, considering all the issues and in light of the law settled by Hon'ble Supreme Court in Dharamvir Singh (supra), we are of the opinion

that applicant's disability ""CORONARY ARTERY DISEASE (ANGINA)"" @ 20% for two years is to be considered as aggravated by military

service.

In view of the above the disability of the applicant at the rate of twenty per cent for two years is to be considered as aggravated by military service

and the applicant is entitled to disability elementwith effect from the date of his discharge

However, the applicant has approached this Tribunal after considerable delay, therefore, due to law of limitation he is not entitled to arrears for the

disability element for the two years period after discharge. The applicant is already in receipt of his service element for life. Since the RMB in its

wisdom had restricted the validity of disability for two years only, hence further entitlement of the disability element will be subject to the outcome of a

Re-survey Medical Board which the respondents shall conduct within four months from the date of receipt of copy of this order.

Ordered accordingly. The respondents are directed to comply with this order within four months from the date of receipt of a copy of this order.

In view of the above, the instant OA is partially allowed in the aforesaid terms. No order as to costs.

Pronounced in open Court on this 24th day of February, 2020.