U.O.I. and Others vs Babu Ram

The prayer for condonation of 9 days'' delay has rightly not been put to contention by the learned counsel for the respondents.

The application seeking condonation of delay is allowed and the delay in filing the appeal is condoned.

The learned counsel for the parties submit ad idem that the other appeal involving akin issues has already been considered and dismissed by this Court, being SAW No. 1339/2011: Union of India & Ors. vs. Laxman Ram, decided on 03.03.2014. Hence, following the decision in SAW No. 1339/2011, this intra-court appeal is also required to be dismissed.

In brief, the relevant aspects of the present matter could be noticed as follows: The writ-petitioner Babu Ram (since deceased and represented by his Legal Representatives - Respondents Nos. 1/1 to 1/8 herein) was enrolled with Indian Army on 28.07.1982. At the time of enrollment, he was found medically fit with his vision at 6/6. However, during field duties, he suffered with Optic Atrophy and Astrocytoma. He was subjected to surgical procedure but his condition deteriorated; and, after serving for 11 years, 5 months and 27 days, the writ-petitioner was invalided out from the military service on 24.01.1994 by placing him in "EEE" medical category with 100% disability element. The Chief Controller of Defence Account (Pension), Allahabad, however, held him not entitled for disability pension by treating the invaliding disability neither attributable nor aggravated by military service. The appeal preferred by the writ-petitioner against the decision aforesaid also came to be rejected in the month of February, 1996.

Aggrieved by the denial of disability pension, the writ-petitioner preferred the writ petition (CWP No. 4065/1998) that has been considered and allowed by a learned Single Judge of this Court by the impugned order dated 13.03.2009. It is noticed that the writ-petitioner expired during the pendency of the petition and his legal representatives (respondents herein) were substituted as petitioners in his place.

The learned Single Judge considered the submission on behalf of the writ-petitioner that CCDA(P) Allahabad was having no authority to declare him disentitled for disability pension by taking that the disability was neither attributable nor aggravated by military service; and that such a finding could have been given only by a competent Medical Board. The learned Single Judge also considered the submissions of the present appellants in opposition to the writ petition that the decision of CCDA (P.) was founded on the recommendations of the competent Medical Board. The learned Single Judge referred to the opinions of the Senior Adviser (Opthalmology), CH (SC) Pune and the Graded Specialist Radiotherapy. The learned Single Judge further referred to the opinion of the Medical Board as also to the decision in Laxman Ram''s case, the appeal (SAW No. 1339/2011) arising wherefrom has been decided on 03.03.2014, as noticed at the outset. The learned Single Judge ruled in favour of the writ-petitioner while observing, inter alia, as under:--

"From perusal of the report of the medical board, relevant portion of which is quoted in preceding paras, it is apparent that Colonel D.K. Sen, Senior Adviser (Opthalmology) opined regarding disease of the petitioner but he nowhere stated that such disease was constitutional in nature or that was neither attributable to military service nor aggravated during military service. It is also pertinent to note that Colonel D.K. Sen, while submitting his opinion, specifically averred that the condition of the petitioner further deteriorated after surgical operation. Similarly, Major P.K. Thakur prescribed necessary details regarding ailment and disability of the petitioner but he too nowhere stated regarding origin of disease. The medical board framed its opinion on basis of the comments given by Colonel D.K. Sen and Major P.K. Thakur. While forming its opinion the medical board has not assigned even a single reason to reach at a conclusion that disability of the petitioner was neither attributable nor aggravated because of military service. The medical board gave its opinion in most cryptic manner by mentioning "No" or "Yes". Medical board is a body of experts and experts are specialist in their subjects with a developed faculty of judging and deciding the issues relating to their subjects. They are required to judge the issues rightly, justly, wisely and with authority. The opinion given by the experts is supposed to be based on special knowledge of a subject beyond that of an average person. Normal individuals and bodies rely on their opinions and also act as per guidelines prescribed by them, therefore, a body of experts bear heavy responsibility for giving definite opinion with cogent reasons. Such an opinion must be capable to express its qualified, technical, skilled and analytical background. It cannot be and should not be in casual and unqualified manner. If opinion of an expert is not based on cogent reasons or that contains ambiguity, then that is nothing but a conclusion of a lay man. An opinion of expert must disclose sound application of mind to establish its objectivity and alliance with the subject.

In the present case, no such expertees or thorough consideration reflects with the medical opinion. It was all the more necessary in light of the requirement under the model form for prescribing medical opinion by stating fully the reasons in regard to each disability on which the opinion was based. Despite such obligation, the Board has not stated any reason to support its finding.

In view of whatever said above and in light of the judgment of this Court in the case of Laxman Ram (supra), opinion given by the medical board is not at all conclusive. The petitioner served Indian Army for a period of about 12 years and at the time of his recruitment he was found absolutely fit with "AYE" medical category. While in active field service he suffered with three disabilities, consequently he was declared 100% disabled. A specific opinion was also given by Colonel D.K. Sen that the condition of the petitioner deteriorated after surgery. There is nothing available on record to reach at the conclusion that the disease of the petitioner was constitutional by nature. Now, unfortunately the petitioner is no more, thus, no further medical examination is possible. In such circumstances, I consider it proper to presume that disability suffered by the petitioner was attributable as well as aggravated due to military service.

Consequently, this petition for writ deserves acceptance. Accordingly, the same is allowed. The denial of the disability element to the petitioner by the CCDA (P.), Allahabad is declared illegal and, therefore, the same is quashed. The respondents are directed to allow disability pension to the petitioner from the date he was invalided. Petitioner Babu Ram has already died, therefore, whatever right accrues as a consequent to the directions above, be given to his legal representatives."

The case of Laxman Ram (supra) had been, on all the relevant aspects, similar in nature where, after considering the relevant Pension Regulations and following the decision of the Hon''ble Apex Court in Dharamvir Singh Vs. Union of India (UOI) and Others, , this Court said,--

"In the matter of Dharamvir Singh (supra), the Hon''ble Apex Court considered the facts of the case and while interpreting the Rule 423(a) of the General Rules, held that it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a field service/active service area or under normal peace conditions. "Classification of diseases" have been prescribed at Chapter IV of Annexure I; under paragraph 4 post traumatic epilepsy and other mental changes resulting from head injuries have been shown as one of the diseases affected by training, marching, prolonged standing etc. Therefore, the presumption would be that the disability of the appellant bore a causal connection with the service conditions. The Hon''ble Supreme Court, thus, set aside the order passed by the Division Bench and restored the decision of the learned Single Judge and directed the respondents to pay the appellants the benefit in terms of order of the learned Single Judge.

Here, in the case in hand, at the time of enrolment of the respondent-petitioner in naval service, he was found fit and his vision was 6/6 in both the eyes. Thereafter, during the course of his service, the disease Retinitis Pegmentosa (RP) occurred, which affects the retina''s ability to respond to the light. This diseases a slow loss of vision, beginning with decreased night vision and loss of peripheral (side) vision. Eventually, the blindness results. Unfortunately, there is no cure for RP. There is no history of hariditory disease and nothing has been brought on record that RP to respondent-petitioner had been hariditory disease or was constitutional in nature. Thus, there remains unrebutted presumption that the said disease occurred during the course of his service and the disability was attributable to the service.

The learned Single Judge, considering the aforesaid provisions of law and the facts and circumstances of the case, has rightly held entitled the respondent-petitioner for disability pension.

Thus, we do not find any reason to interfere with the impugned order in this intra-court appeal. The same is, therefore, dismissed. No costs."

The position aforesaid being directly applicable to the present case too and the learned Single Judge having drawn the conclusion that the disability suffered by the writ-petitioner was attributable as well as aggravated due to military service after consideration of the record in its correct perspective, there appears no reason to consider interference.

Consequently, this appeal fails and is, therefore, dismissed.