Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Mr. J.P Dhanda, Adv for the Petitioner.
  • Mr. Adesh Jain, Adv. for the Respondent.
Judges
  • N.G Nandi, J.
Acts
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Mr. J.P Dhanda, Adv for the Petitioner.
  • Mr. Adesh Jain, Adv. for the Respondent.
Judges
  • N.G Nandi, J.
Acts
See more information ...
Smart Summary

Case Summary — Petition under Article 226: Claim for Disability Pension

Factual and Procedural Background

The petitioner filed a writ petition under Article 226 of the Constitution seeking a direction to the respondent to grant disability pension on discharge from military service. The factual allegations in the petition are: the petitioner was enrolled as an Airman in the Indian Air Force on 30.12.1983 (served as an Instrument Fitter); there was no note at entry that he suffered from any disease; while posted at Kalaikunda (Kharagpur, West Bengal) circa 1988 he developed constipation, was hospitalised for about one year and diagnosed with Insulin Dependent Diabetes Mellitus; he was discharged from service on 20.5.1989 on grounds of ill-health (Insulin Dependent Diabetes Mellitus); no disability pension was granted on discharge and representations by the petitioner for grant of disability pension were unsuccessful.

Procedurally, the respondents filed an affidavit in reply explaining that the petitioner was medically boarded out under Rule 15(2)(c) of the Air Force Rules, 1969; the Invalidating Medical Board assessed the percentage of disability as 60% for one year and opined that the disability was constitutional in nature and "neither attributable nor aggravated by his Air Force service"; the Pension Sanctioning Authority (Chief Controller of Defence Accounts (Pensions)) rejected the claim and the petitioner's appeal against that rejection was also dismissed (letter dated 12.3.1991). The petitioner challenged that decision before the High Court by way of this writ petition.

Legal Issues Presented

  1. Whether the disease (Insulin Dependent Diabetes Mellitus) which resulted in the petitioner's discharge "arose in service" so as to attract entitlement to disability pension where no note of the disease was made at enlistment.
  2. Whether the Pension Sanctioning Authority could ignore or overturn the assessment and opinion of the Invalidating Medical Board (which assessed 60% disability for one year) without constituting a fresh Medical Board to re-examine the petitioner.
  3. Whether, in the facts of this case, the petitioner's disability was attributable to or aggravated by Air Force service so as to qualify for a disability pension under the relevant pension regulations.

Arguments of the Parties

Petitioner's Arguments

  • No note was made at the time of entry into service indicating the petitioner suffered from diabetes or a related condition.
  • The petitioner developed diabetes while in military service; consequently the disability arose during service and is attributable to service.

Respondents' Arguments

  • The petitioner was invalided out after an Invalidating Medical Board constituted under Rule 15(2)(c) assessed disability as 60% for one year but concluded the disability was "neither attributable nor aggravated by his Air Force service" and constitutional in nature.
  • The Pension Sanctioning Authority adjudicated the claim and rejected it on the stated ground that the disability was not attributable to or aggravated by service; the appellate authority also rejected the petitioner's appeal (12.3.1991).
  • Reliance was placed on pension regulations (cited: Regulation 153 of Pension Regulations for the Air Force, 1961 (Part I) and related provisions) which prescribe that a disability pension is available where the disability is attributable to or aggravated by service and assessed at 20% or over.
  • Counsel for respondents submitted that the disability must not only have arisen during service but must be attributable to military service.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ex. Hav. Sinder Pal Singh v. Union of India & Another, 1991 (5) S.L.R. 459 Where a disease on the basis of which a serviceman is discharged arises during the course of employment and no note of it was made at the time of acceptance for service, the serviceman may be entitled to disability pension under the applicable pension regulations (here: Pension Regulations (Army) 1961, Regulation 173). The court relied on this authority to support the proposition that absence of a note at time of entry leads to the disease being regarded as arising in service and thus supports entitlement to disability pension where other conditions are met.
Deepak Kumar Singh v. Union of India, 68 (1997) DLT 788 The medical board's opinion that the disease leading to discharge arose during service should not be ignored; absent other medical opinion the Pension Sanctioning Authority could not have ruled out or ignored the Invalidating Medical Board's assessment (40% in that case). The court used this decision to underline that the Pension Sanctioning Authority cannot arbitrarily disregard the Invalidating Medical Board's assessment and that a disease can be deemed to have arisen during service under Rule 7(b) where there is no note at recruitment and no contrary medical finding.
Ex. Sapper Mohinder Singh v. Union of India (Supreme Court) The disability pension assessed by the Medical Board should be respected until a fresh Medical Board examines the serviceman and comes to a different conclusion. The court applied this principle to conclude that the Chief Controller of Defence Accounts (Pensions) ought not to have adjudicated contrary to the Invalidating Medical Board's assessment without constituting a fresh Medical Board to re-examine the petitioner.

Court's Reasoning and Analysis

The court's analysis proceeds in the following logical sequence, closely following the materials and precedent cited in the opinion:

  1. Establishing the factual baseline: it is undisputed that the petitioner joined service on 30.12.1983, that no note of diabetes or a similar disease was made at entry, and that the petitioner served about 5½ years until being hospitalised (on complaint of constipation) and then found to suffer from Insulin Dependent Diabetes Mellitus, leading to discharge on 20.5.1989.
  2. Interpretation of the governing pension regulation: the court refers to Regulation 173 of the Pension Regulations (Army) 1961 (and Appendix II, para 7(b)) which provides that a disease leading to discharge will ordinarily be deemed to have arisen in service if not noted at acceptance, unless a medical opinion (for reasons to be stated) finds it could not have been detected on pre-enlistment examination.
  3. Application of the regulation to the facts: there is no material on record showing any medical opinion that the disease could not have been detected prior to acceptance. The Invalidating Medical Board assessed disablement at 60% for one year but the Pension Sanctioning Authority rejected the pension claim, stating the disability was constitutional and not attributable/ aggravated by service.
  4. Reliance on precedent: the court draws on Ex. Hav. Sinder Pal Singh and Deepak Kumar Singh to show that where no note exists at enlistment the disease is ordinarily deemed to have arisen in service and that the Pension Sanctioning Authority should not ignore the medical board's opinion. The Supreme Court's observation in Ex. Sapper Mohinder Singh is invoked to hold that the Medical Board's assessment must be respected until a fresh Medical Board re-examines and reaches a different opinion.
  5. Finding as to procedural impropriety/substantive error: because no fresh Medical Board was constituted and no fresh medical examination was shown to have taken place, the Pension Sanctioning Authority had no basis to bypass or ignore the Invalidating Medical Board's assessment of 60% for one year. The respondents' decision to refuse disability pension on the ground that the disability was not attributable/ aggravated by service was therefore "arbitrary and unsustainable" in law.

Holding and Implications

Holding: The writ petition is allowed. The respondents are directed to grant disability pension to the petitioner at the rate of 60% for one year, as assessed by the Invalidating Medical Board. This pension is to continue until the disability is varied on re-assessment by a properly constituted Medical Board. The respondents are directed to calculate and pay arrears within three months. The petitioner is awarded costs of Rs. 5,000 to be borne by the respondents.

Implications:

  • Direct effect on the parties: the petitioner is to receive disability pension at 60% for one year (subject to future re-assessment) and arrears and costs as directed by the court.
  • Procedural principle reaffirmed: the decision reinforces the principle that the Pension Sanctioning Authority should not overrule or ignore the assessment and opinion of an Invalidating Medical Board without constituting a fresh Medical Board and obtaining a different medical conclusion.
  • No broad novel precedent announced: the court applied existing regulatory text and established authorities to the facts; the order enforces those principles in the petitioner's case rather than announcing a new legal doctrine.

Note: This summary is based exclusively on the contents of the provided opinion. No information beyond what appears in that opinion has been added or inferred.

Show full summary ...

    Jai Bhagwan Rohilla. v. Chief Of The Air Staff & Anr..

    N.G Nandi, J.— In this petition under Article 226 of the Constitution of India, the petitioner has been praying for the relief requiring the respondent to be directed to give disability pension to the petitioner on his discharge from the military service.

    2. It has been the say of the petitioner that the petitioner was selected as an Airman in the Indian Air Force on 30.12.1983; that at the time of entering the military service, no note was made that the petitioner was suffering from any disease; that the petitioner served in the Indian Air Force as an Instrument Fitter for about 5 1/2 years; that the petitioner could not acclimatise to the climate at Kalaikunda (Kharagpur, West Bengal) where the petitioner was posted during the year 1988; that the petitioner started to have constipation; that the petitioner was admitted in the hospital and remained in the hospital for about one year; that various tests were carried out and the petitioner was found suffering from INSUUN DEPENDENT DIABETES MELLITUS; that the petitioner was discharged from the service on the ground of ill-health i.e suffering from Insulin Dependent Diabetes Mellitus on 20.5.1989; that the petitioner was not granted any disability pension at the time of discharge from the service; that the petitioner made representation to the Air Force Authority for grant of disability pension but of no avail.

    3. The respondent, vide affidavit in reply, contends that the petitioner was enrolled in the Indian Air Force on 30.12.1983 and was medically boarded out of the service on 20.5.1989 by a duly constituted Invalidating Medical Board under the provisions of Rule 15(2)(c), Air Force Rules, 1969 on account of his disease “Insulin Dependent Diabetes Mellitus (250D) V67” that the Invalidating Medical Board had assessed the percentage of disability as 60% for one year and opined that the disability of the petitioner is neither attributable nor aggravated by his Air Force service as well as constitutional in nature; that on adjudication, the Pension Sanctioning Authority [i.e Cheif of Controller of Defence Accounts (Pensions)] had rejected petitioner's claim for disability pension explaining the reasons as “disability from which the petitioner had suffered during his Air Force service is neither attributable to nor aggravated by his service being constitutional in nature” that the petitioner had preferred an appeal before the appellate authority against the above said decision of the Pension Sanctioning Authority which was also rejected vide letter dated 12.3.1991; that the disability pension is not admissible to the petitioner in terms of Regulations 153 of the Pension Regulations for the Air Force. 1961 (Part-I) which includes primary condition for grant of disability pension as “Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalidated from service on account of disability which is attributable to or aggravated by Air Force Service and is assessed at 20% or over”.

    4. It has been submitted by Mr. Dhanda, learned counsel for petitioner, that at the time of petitioner's entry in Air Force Service, there is no note made of the petitioner having been suffering from any such disease; that the petitioner developed diabetes while in military service and that the petitioner becoming diabetic while in military service is attributable to the military service.

    5. In the case of Ex. Hav. Sinder Pal Singh v. Union of India & Another, reported in 1991 (5) S.L.R page 459 wherein the Single Judge of the Punjab & Haryana High Court has held that the petitioner's claim for disability pension is covered under the Pension Regulations (for Army) 1961, Regulation 173 inasmuch as the disease on the basis of which the petitioner was discharged from the Army Service had arisen during the course of the employment and, therefore, would be entitled to disability pension in absence of note made at the time of petitioner's acceptance for military service that he was suffering from a disease on account of which he was discharged from service.

    In the case of Deepak Kumar Singh v. Union Of India., 68 (1997) DLT page 788 the Division Bench of this High Court held that the disease which led to the petitioner's discharge will be deemed to have arisen during Air Force Service and the petitioner neither hospitalised or treated for the said disease, the Chief Controller of Defence Accounts (Pensions), Allahabad, in the absence of any other medical opinion, could not have ruled out or ignored the opinion of the Medical Board upon whose opinion the petitioner was invalidated out assessing disability at 40% for two years and the decision of the respondents not to grant disability pension to the petitioner being arbitrary, unsustainable and liable to be set aside.

    6. In the instant case, the petitioner joined Indian Air Force on 30.12.1983 It is not disputed that when the petitioner accepted the Air Force Service and joined the Indian Air Force on 30.12.1983 no note was made that he was suffering from a disease like the one on hand i.e Insulin Dependent Diabetes Mellitus on account of which he has been admittedly discharged from Air Force Service on 20.5.1989 That means the petitioner served with the Indian Air Force for a period of about 5 1/2 years and that on complaint of constipation, the petitioner was admitted in the hospital and was found to have been suffering from Insulin Dependent Diabetes Mellitus.

    Regulation 173 of the Pension Regulations of the Army 1961 reads as under:—

    “173. Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 percent or over.

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

    Para 7(b) of the Appendix-II provides as under:—

    “7(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 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.”

    7. In the instant case, there is no material on record to suggest that the medical opinion held, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service. It is pertinent to note that the say of the respondents is that Invalidating Medical Board had assessed the percentage of disablement as 60% for one year. The Pension Sanctioning Authority i.e Chief Controller of Defence Accounts (Pensions), on adjudication, rejected the petitioner's claim for disability pension explaining the reasons.

    8. In the case of Ex. Sapper Mohinder Singh v. Union of India (copy whereof has been placed oh the record), the Supreme Court observed “In view of all the relevant circumstances of the case, we are of the opinion that the Disability Pension assessed at the rate of 40% by the Medical Board, which had examined the appellant, should be respected until a fresh Medical Board examined the appellant again and came to a different conclusion.” In the instant case, it is not the say of the respondents that a fresh Medical Board was constituted and the petitioner was examined much less the fresh Medical Board coming to a different conclusion.

    9. In view of the above, reproduced observations in the case of Ex. Sapper Mohinder Singh v. Union of India (supra) by the Supreme Court, it was not open to the Chief Controller of Defence Accounts (Pensions) as the Pension Sanctioning Authority to adjudicate the disablement assessed by Invalidating Medical Board and reject the claim for disability pension in absence of constituting a fresh Medical Board and examining the petitioner again and coming to a different conclusion than the one reached by the Invalidating Medical Board which assessed the disability as 60% for one year.

    10. It has been submitted by the learned counsel for the respondents that the disability should not only arise during the course of employment but the same should be attributable to the military service. In the case of Deepak Kumar Singh v. Union Of India. (supra), while dealing with a case the Medical Board declaring a personnel of Indian Air Force not medically fit for further service being a case of Insulin Dependent Diabetes Mellitus and the Medical Board assessed disability to the extent of 40%, the Division Bench held that he disease which led to the petitioner's discharge will be deemed to have arisen during the Air Force service and in view of Rule 7(b) held that the disability is attributable to or aggravated by Air Force service.

    11. As pointed out above, admittedly, no note of the disease was made at the time of petitioner's enrollment. The Medical Board had also, in its case, not recorded that the disease suffered by the petitioner could not have been detected by medical examination prior to the petitioner's acceptance for service. The disease which led to the petitioner's discharge from military service will be necessarily deemed to have arisen during the Air Force service, especially when it is not the say of the respondents that during the entire service of the petitioner of more than 5 1/2 years, the petitioner was ever required to be hospitalised or treated for the said disease except when he was admitted in the hospital on complaint of constipation.

    12. Under the circumstances, the decision of the respondents not to grant disability pension to the petitioner, as assessed by Invalidating Medical Board, recommending/assessing the percentage of disablement as 60% for one year and the Pension Sanctioning Authority i.e Chief Controller of Defence Accounts (Pensions), in absence of fresh Medical Board examining the petitioner and reaching a different conclusion, could not have by-passed/ignored the opinion of the Invalidating Medical Board, upon whose opinion the petitioner was invalided out of the military service cannot be sustained in law.

    In the above view of the matter, the decision of the respondents not to grant disability pension to the petitioner would be nothing but arbitrary and unsustainable and liable to be quashed.

    13. In the result, the writ petition is allowed. The respondents are directed to sanction/grant disability pension to the petitioner as 60% for one year, assessed by the Invalidating Medical Board. The same will be continued to be paid till the disability is varied on re-assessment by a properly constituted Medical Board. The respondents shall work out the arrears and the same be paid within three months to the petitioner. The costs of the petitioner is quantified at Rs. 5,000/- which shall be borne by the respondents.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Jai Bhagwan Rohilla. v. Chief Of The Air Staff & Anr..
    (Sep 10, 1999)