Janki Devi vs UOI and Others

Hasnain Massodi, Judge

The petitioner's son-Shri Om Parkash enrolled as Rifleman/Clerk in Indian Army on 25th May, 1977 and allotted No. 13740264, after serving

in Indian Army for more than five years, the petitioner's son was discharged from service on 15th August, 1982 on medical grounds under medical

category 'E'. The Army Medical Board found Shri Om Parkash to be suffering from ""SCHIZOPHRENIA 295"" and not fit for further services of

Armed Forces. He was, accordingly, invalided out of service on 16th August, 1982 under Army Rule 13(3) item III (iii). The Medical Board also

opined that the disability found was not related to military service and was a constitutional disorder. Accordingly, Shri Om Parkash was not

granted disability pension being not eligible for such benefit in terms of para - 197 & 198 of Pension Regulation for the Army 1961 (Part I).

However, Invalid Gratuity of Rs. 1,742.55 (Rupees one thousand seven hundred forty two and fifty five paise only), Terminal Credit Balance and

some other benefits were granted to the petitioner's son. Notwithstanding his ineligibility for grant of disability pension, a claim was forwarded to

the Pension Sanctioning Authority-Principal Controller of Defence Accounts Pension (PCDA) (P) Allahabad vide No. C2/17440264/Pen dated

26th July, 1982. The Authority did not find any merit in the claim, and the decision was communicated to Shri Om Parkash vide No.

C2/13740264/Pen/17 dated 18th October, 1982. He preferred an appeal against the aforementioned order to the Government of India, however,

the Government of India did not find any reason to alter the decision of PCDA (P) Allahabad and dismissed the appeal. A second appeal was

preferred to the Defence Minister's Appellate Committee without any success. The petitioner pleading that her son was suffering from psychiatric

disorder and having no mental capacity to agitate his rights, has filed writ petition on hand to question the order of Principal Controller of Defence

Accounts (Pension), PCDA (P) Allahabad dated 26th July, 1982, whereby claim for disability pension has been rejected.

The petitioner's case is that as her son at the time of his enrollment in Indian Army was found by the Medical Board to be physically and

mentally fit and recommended for enrollment, the ailment that surfaced five years after his enrollment is attributable and aggravated by Army

service. The petitioner disputes that the ailment detected, i.e. ""SCHIZOPHRENIA"" (Catatonic) 295 is a constitutional disorder, disentitling the

petitioner from disability pension. The petitioner insists that her son is entitled to disability pension under Army Pension Regulation 173, inasmuch

as, he was boarded out from service on account of disability and in terms of Appendix II to Pension Regulations, the disease that leads to

discharge of an individual is to be ordinarily deemed to be related to Army service.

The writ petition is resisted by the respondents on the grounds that as the disability detected was found by Army Medical Board to be neither

attributable nor aggravated by military service but a constitutional disorder, the petitioner's son was not entitled to disability pension. The

respondents dispute that Army Pension Regulation 173 or Para 181 of Pension Regulation was attracted in the matter. It is reiterated that the

petitioner's claim having been rejected by PCDA (P) Allahabad, and, thereafter, his first appeal and second appeal found bereft of any merit, the

petitioner had no right to maintain the petition.

I have gone through the pleadings as well as record available on the file and have heard learned counsel for the parties.

Grant of disability and other pensions to army personnel is regulated by Pension Regulations in the Army, 1961, Rule 173 and Appendix II to

the Regulations are relevant to the present controversy and required to be noticed. Rule 173 reads as under;

Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual

who is invalided out of service on account of disability which is attributable to or aggravated by military service in non-battle casualty and is

assessed at 20 poer cent or over.

The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II.

A bare look on the Rule 173 would make it clear that a person subject to Army Act, 1950, would be entitled to grant of disability pension, in

the event, he is boarded out of the Army on account of disability, in case, such disability is attributable to or aggravated by the military service. The

guidelines to be followed while determining whether a disability is attributable or aggravated by the military service, are laid down in Appendix II to

the Regulations. Let us now turn to Appendix II to find out what are the guidelines and whether such guidelines have been followed in the case on

hand. In order to be considered for disability pension, a person under the Army Act, obviously must have been as laid down in Rule 4 to the

Appendix II invalided out of service. Rule 5 of the Appendix II spells out the approach of the authority clothed with the power to take a decision

as regards the nature of the disability that prompts the Army Authorities to invalid out the person subject to the Army Act, 1950. It reads as under;

The approach to the question of entitlement to causality pensionary awards and evaluation of disabilities shall be based on the followed pre-

sumptions:-

PRIOR TO AND DURING SERVICE

(a) A member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or

recorded at the time of entrance.

(b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due

to service.

A closer look at Rule 5 to Appendix II reveals that there are two presumptions as regards a person enrolled in the Army. Firstly there is a

presumption that the person enrolled was in sound physical and mental condition upon entering service except as to physical disabilities noted or

recorded, at the time on entrance. It is pertinent to point out that there is a thorough Medical examination of the person, desirous to get enrolled in

the Army. Obviously, once, he on such Medical examination is found to be physically and mentally fit and allowed to enter the Army Service, it is

to be presumed that he did not suffer from any physical or mental disability at the time of his entrance in Military Service. The second presumption

is that when the army personnel is discharged any time after his enrollment in the Army on health grounds, the health problem or disability detected

is due to service.

Let us now proceed to go through rule 14 of the Appendix II. It reads;

In respect of disease, the following rule will be observed:

(a) Case in which it is established that conditions of Military Service did not determine or contribute to the onset of the disease but influenced the

subsequent courses of the disease, will fall for acceptance on the basis of aggravation.

(b) A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service, if no note of it was made at the

time of the individual's acceptance for military service. However, if medical opinion holds, for reasons to be stated, that the disease could not have

been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service.

(c) If a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or the

contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service.

It follows that even if the health problem or the disability detected is found not to have been a result of military service, the army personnel

boarded out would still be entitled to the disability pension, if it is found that the disease was aggravated by the military service. In the

circumstances to disentitle from disability person, it would not be sufficient for the Authority that declares the army personnel unfit to serve in the

Army on health problems, to opine that the disease or disability is not attributable to the Military Service but such authority has to further certify

that the disease was not aggravated by the military service. Conversely where a disease is said to have arisen in service, it is to be established that

the conditions of the military service determined or contributed to the onset of the disease and that such conditions were relatable to the

circumstances of the duty in military service. Rule 14 to Appendix II also gives rise to presumption as regards onset of the disease. In the event, the

disease is not mentioned in the medical report at the time of entrance to the Army Service, there is a presumption that disease has arisen in the

service. The only exception to the said presumption is where the Medical Board opines for the reasons to be recorded that the disease could not

have been detected on Medical examination prior to entrance into Army Service. With the said baseline, let us examine the claim for disability

pension set out in the petition.

The petitioner's son, as is clear by now, was found after serving the Army for five years to be suffering from ""SCHIZOPHRENIA"" (Catatonic)

In terms of Rule 5 to Appendix II, there is a presumption that the disability/disease detected had arisen during the service and was attributable

to the military service. However, the presumption can be displaced, in the event, the Medical Board opines for the reasons detailed in support of

such opinion that disease/disability detected was constitutional in nature meaning thereby that it was there even when the petitioner's son was

enrolled in the Army and could not have been detected on Medical examination at the time of entrance in Military service.

In the present case, though the Medical Board has opined that the disease/disability detected was constitutional in nature, yet the Medical

Board has not, as mandated by Rule 14(b) to Appendix II detailed the reasons that persuaded it to opine that the disease by its nature could not

have been detected on Medical examination prior to his acceptance for service. It is well settled that in order to disentitle the army personnel

invalided on medical grounds, the Board must certify that disease or disability could not have been picked up at the time of entry in service and

detail its reason in support of such conclusions. Reference in this regard may be made to law laid down in ""Union of India and anr. v. Sikander

Singh"" 2011 (1) JKJ 878 (HC). The Medical Board, it may be stated at the cost of repetition, was not only to certify that the disease or disability

could not have been detected at the time of entrance but also give the reasons in support of such opinion. So viewed, the opinion given by the

Board is in-conflict with Rule 14, Appendix II to the Regulations.

The above discussions apart, let us see whether ""SCHIZOPHRENIA (Catatonic) 295"" is a genetic disorder and independent of the opinion

rendered by the Medical Board, neither attributable nor aggravated by the Military Service. ""SCHIZOPHRENIA"" is a complex mental disorder

that makes it difficult to tell the differences between the real and unreal experiences, think logically, have normal emotional response, behave

normally in social situation. It is not exclusively genetic in nature. Certain environmental events may trigger the disease. In the current Diagnostic

and Statistical Manual of Mental Disorders (DSM) published by American Psychatric Association, ""SCHIZOPHRENIA"" (Catatonic) 295 is

associated with the mental disorders, as well as drug abuse or overdose or both. ""SCHIZOPHRENIA"" (Catatonic) 295 may be seen in many

mental disorders including infections such as Encephalitis, Autoimmune Disorders, Focal Neurological lesions including strokes metabolic

disturbances or adverse reaction to prescribed medication. The causes of the disease, therefore, cannot be generalized as exclusively genetic in

character. In the opinion of the experts, the psychological stress plays a significant role in precipitating the illness. Again adverse life events like,

loss of parents in childhood, absence of social support, like having no friends to provide such support, loss of friends, loss of siblings, may be

responsible for onset of the disease or aggravating the disease.

Viewed thus, to say that ""SCHIZOPHRENIA"" in all its forms including ""SCHIZOPHRENIA (Catatonic) 295"" is always genetic or

constitutional in nature would not be a valid statement. The army personnel invalided out on the ground of having been found suffering from

SCHIZOPHRENIA"" have been held entitled to disability pension in a number of authoritative judicial pronouncements including ""Ex-Naik M.S.

Pemmaiah v. Union Of India"" 1998 (3) SCT 755, ""Harjit Singh v. Union of India"" 1998 (4) SCT 88, ""Indu Bhushan Bali v. Union of India and

ors"" 2007 (1) SLJ 392 : 2007 (1) JKJ HC 340 decided on 19th September, 2006, ""Balwant Singh v. Union of India and ors"" LPA(SW) No.

521/1998 decided on 17th November, 1999 and last of all ""Darshana Devi v. Union of India and ors."" 2008 (1) SLJ 1 : 2007 (3) JKJ HC 10

(DB), wherein all these cases have been quoted with approval and relied upon.

For the reasons discussed above, the writ petition is allowed. Resultantly, Order of Principal Controller of Defence Accounts (Pension),

PCDA (P) Allahabad dated 26th July, 1982, whereby disability pension to the petitioner's son namely, Shri Om Parkash enrolled as

Rifleman/Clerk in India Army on 25th May, 1997, (No.13740264) has been declined, is quashed and the respondents are directed to accord

fresh consideration to grant of disability pension admissible under rules to the petitioner's son.

This petition is, accordingly, allowed.