Lt.Col. T.C. Bhakoo vs Union of India

R.L. Anand, J.—Lt. Col. T.C. Bhakoo has filed the present writ petition under Articles 226/227 of the Constitution of India for the issuance of a writ in the nature of ceitiorari, mandamus or any other writ, order of direction, and the petitioner has prayed for the setting aside of the order dated 18.9.1996, Annexure P-4, vide which his claim for grant of disability pension has been rejected.

The case set up by the petitioner is that he served in the ranks of Corps of Signals from 1959 to 1969. At the time of his enrolment and subsequently during the annual leave/annual medical examinations, he was found fit and did not suffer from any disease or deformity. In the year 1969, he was selected for permanent commission in the Army and at that time also, he was subjected to a thorough medical examination. He was given commission in the year 1970 and, thereafter, he was medically examined every year and he was placed in the medical category ''A''. For the first time, the petitioner became ill in the year 1992 with involuntary movement of left side of his body and he was admitted in the Military Hospital, Ambala Cantt. He was transferred to the Army Hospital, Delhi Cantt., wherein his disease was diagnosed as CHOREA. Consequently, he was downgraded to the medical category S1 H1 A1 P3 E`(T-24). In the year 1996, he became due for retirement on reaching the age of 52 years. A Release Medical Board was held on him in February, 1996. His disability due to CHOREA was assessed at 60%, In the same year, his case for grant of disability pension was processed to the Army Headquarters. However, his case was rejected by the Ministry of Defence on 18.9.1996, on the ground that the disease suffered by the petitioner was not attributable to the military service as CHOREA was a degenerative disorder. On 11.4.1997, the petitioner made a representation against the order of rejection but he did not receive any reply. He even made a representation. He, finally, issued a notice dated 28.1.1999. The grouse of the petitioner is that the rejection of his claim for disability pension is unjust, unfair, illegal and arbitrary and against the rules.

Notice of the writ petition was given to the respondents, who filed the written statement and denied the allegations. It was stated by the respondents that the disease suffered by the petitioner is a degenerative disorder and has no relation to service conditions. The invalidating disease is considered not related to service. The officer had remained under sheltered appointment since its detection and there has been no deterioration in the invalidating disease. Accordingly, the disability pension claim of the petitioner was rejected vide letter dated 18.9.1996.

I have heard the counsel for the parties and with their assistance have gone through the record of this case.

Counsel for the petitioner vehemently submitted with the aid of Rule 4 Appendix II that the petitioner when joined the Army, he was found fit and he was placed in category ''A''. He was placed in lower medical category at the time of his release ihan that when he was recruited in the Army. It has been treated to be invalidated from service and, therefore, the petitioner is entitled to the benefit of disability pension. As per the counsel for the petitioner, the disease CHOREA, was suffered by the petitioner when he was discharging the duties and, therefore, with all reasonable certainty and probability, it can be said that the petitioner had got this disease when he was serving the Army.

On the contrary, counsel for the respondents relies upon rule 14(c) and submitted that if the disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. Mr. Sehgal further submitted that the petitioner was discharged from the military service on retirement after availing the full period of service. He was not invalidated from the service, which is a necessary ingredient for the grant of disability pension and, therefore, the petitioner is not entitled to the benefit of disability pension.

There is merit in the contention of the counsel for the respondents. Rule 4, which has been relied upon by counsel for the petitioner reads as under :-

"Invaliding from service is a necessary condition for grant of disability pension. An individual who, at the time of his release under the Release Regulations, is in a lower medical category than that in which he was recruited will be treated as invalidated from service....."

Thus, a reading of the above would show that it was incumbent upon the petitioner to establish that he was invalidated from the service on account of medical reasons. This is not the case. Rather, the petitioner was given extension of two years from 7.9.1996 to 5.9.1998. The petitioner retired from service after availing the full period. Moreover, as per rule 14(c), the onus is upon the petitioner to establish that the conditions of military service were such that on account of those conditions, he suffered the disease complained of. This aspect of the case is also missing. In these circumstances, the petitioner has no case.

Resultantly, the present writ petition has no merit and the same is hereby dismissed.

Petition dismissed.