14.09.2010
1. Applicant by this petition has prayed that he may be granted disability pension @ 50% from the date of discharge from service.
2. Applicant was enrolled in the regular Army on 18.09.1981 as combatant soldier after having been found medically fit in all respects. While he was posted in the Field Area, O.A. No. 167/2009 Ex. Sep. Paras vs. Union of India & Ors. he developed a disease of Bronchial Asthma and he was medically examined and was lowered down in Low Medical Category CEE for two years. Thereafter he sought voluntary discharged and he was released from service in the year 1999. He requested for grant of the disability pension which was rejected. Thereafter, applicant gave notice in 2009 which was answered by the respondents rejecting his claim. Now applicant has approached this Tribunal by filing present petition after gap of
10 years.
3. A reply was filed by the respondents and respondents contested the matter stating that applicants disability was 30% for two years and his request for grant of disability pension was rejected by PCDA (P) Allahabad on 10th January, 2000. Now applicant has approached this Tribunal after gap of 10 years.
4. We have heard learned counsels for the parties and perused the record.
5. Learned counsel for applicant invited our attention to the decision of Mahavir Singh Narwal vs. Union of India (CWP O.A. No. 167/2009 Ex. Sep. Paras vs. Union of India & Ors. No. 2967/1989) decided by Honble Delhi High Court which was confirmed by Honble Supreme Court in which it has been held that if a person who has a low medical category and being discharged, he will be entitled to disability pension if the disability has been attributed or aggravated by the Military Service beyond 20%. In the present case, learned counsel for applicant submitted that applicant received disability to the extent of 30% though it was for a period of 2 years but he was not granted disability pension when he was discharged from service in the year 1999. But the Medical Board in their recommendations said that applicants disease of Bronchial Asthma is not aggravated by the Military Service. Learned counsel for applicant submitted that this finding given by the Medical Board is not correct and he submitted that the Guide to Medical Officers (Military Pension-2008) under the heading para the Findings Given, it is mentioned that all the times cases should be based on aggravation. Whether applicant was suffering from aggravation or not, we cannot say because of the findings of Medical Board is to the contrary. In view of the findings given by the Medical Board denying the aggravation that Bronchial Asthma has nothing to do with the Military Service, which is not compatible to the Guidelines to the Medical Officers (Military O.A. No. 167/2009 Ex. Sep. Paras vs. Union of India & Ors. Pension), 2008, we deem it just and proper let the petitioner may be examined by the Review Medical Board and if it is found that applicants disease of Bronchial Asthma is attributable to Military Service then all benefits will flow on the basis of the recommendations of the Medical Board. Respondents are directed to convene the Review Medical Board within two months and intimate applicant. Applicant may appear before the Medical Board and fate of the grant of disability pension will depend on the recommendations given by the Medical Board. Petition is accordingly disposed of. No order as to costs. A.K. MATHUR (Chairperson) M.L. NAIDU (Member) New Delhi September 14, 2010.