Ex. Rect/Rfn. Nahar Singh vs Union Of India (Uoi) And Ors. on 13 July 2006

Delhi High Court
Ex. Rect/Rfn. Nahar Singh vs Union Of India (Uoi) And Ors. on 13 July, 2006
Author: Swatanter Kumar
Bench: Swatanter Kumar, G.S. Sistani
JUDGMENT

Swatanter Kumar, J.

Page 2761

1. The petitioner, Nahar Singh was enrolled in the Indian Army on 17th February, 1966. According to the petitioner, after stringent medical and physical examination, he was given medical category `AYE’ and thereafter he was directed to report to Rajputana Riffle Regtl. Centre for undergoing basic training. Upon reporting to the said training centre, the petitioner was again subjected to medical examination. Nothing abnormal was detected in the medical examination. However, after passing the recruit test, the petitioner was admitted in the Army Hospital at Delhi Cantt in Page 2762 November/December, 1966 where he remained admitted for 2/3 months. Whereafter, the petitioner was recommended to be invalided out of service in low Medical Category `EEE’ by the Medical Board, just because the petitioner was a recruit and undergoing basic military training. Ultimately, the petitioner was discharged from service on medical ground with effect from 13th February, 1967. However, he was not supplied the copies of medical record or other documents except certificate of service. The petitioner being the resident of remote village in Rajasthan and not being aware of the law could not approach the authorities or Court for quite some time. According to the petitioner, subsequently he came to know that he was entitled to receive benefits with effect from 13th February, 1967, the date of his discharge. He also came to know that similarly placed persons were granted disability pension and on 6th January, 2005, the petitioner approached the authorities for supply of medical record. The letter of the petitioner was replied to by the respondent vide letter dated 24th January, 2005 wherein it was stated that petitioner was not entitled to receive disability pension. The respondent neither supplied the complete documents to the petitioner nor granted disability pension. Aggrieved from the inaction of the respondent, the petitioner has filed the present writ petition praying for quashing of letter dated 24th January, 2005 issued by respondent No. 4 declining to grant disability pension and further directing the respondents to pay the arrears of disability pension with effect from 14th February, 1967. The petitioner has also claimed compensation. Counter affidavit on behalf of the respondents has been filed wherein basic fact s are hardly disputed. However, in regard to entitlement of the petitioner to receive disability pension, it is stated that the Medical Board had recommended category `EEE’ with disability 15-19% and not attributable or aggravated by military service. On merits it is stated that when the petitioner was undergoing training, he was admitted to Army Hospital, Delhi Cantt due to fever, cough, headache and body ache for three days duration. In fact the stand of the respondents has been precisely stated in paragraph 1 and 2 of the counter affidavit, which read as under:

1. No. 2860016 Ex. Rect. Nahar Singh (hereinafter called petitioner) was enrolled in Army (Rajputana Rifles) on 17 Feb 1966. During military training, he was admitted in Military Hospital, Delhi Cantt on 25 Nov. 1966 due to fever, cough, headache and body ache for three days duration. Soon after this he developed pustule, Cellulites and ulceration over lateral side of Rt. Ankle followed by extrusion of worm about 6-8? long. The opinion of surgical specialist recorded in AFMSF-7A (Medical Case sheet) who attended him speaks that ?this recruit of 10 months duration had two attacks of extrusion of guinea worm from Rt foot in about one and half months time. He also gives history of extrusion of guinea worm two years back. He came from Rajasthan area which are endemic for Dracontiasis.
This recruit is unlikely to make a fit soldier. Recommended to Category `EEE’. Disability 15-19% and not attributable or aggravated by military service’.

Page 2763

2. Accordingly, Invalidating medical board was constituted who Invalided him out from service with effect from 14 Feb. 1967 in Medical Category ‘EEE’ (i.e. unfit for military service) for the disease ‘DRACONTIASIS’. The decree of disability assessed was at 11-14% (permanent) and regarded as Neither attributable to nor aggravated by military service. The invaliding Medical Board also viewed that the disability existed before entering the service by the petitioner.

2. During the course of hearing, the respondents were directed to produce records, which were produced and perused by the Court. The proceedings of the Medical Board held for invaliding the petitioner from army service clearly shows that total service of the petitioner was 10 months and he was stated to be suffering from Extrusion of Guinea Worm and this was stated to be neither attributable nor aggravated by military service. In column 3 of AFMSF-16 it has also been stated that patient suffered from the disease for more than 2 years while his service was only 10 months. This statement is also signed by the petitioner. In part-III of the said document, under 2(d) the following remarks have been made:

(d) In the case of a disability under C, the board should state what exactly in their opinion is the cause thereof.
3. Individual is a resident of an endemic region (Rajasthan). He has only 10 months service to his credit. Disability was present at the time of enrollment in sub clinical stage.

3. Further the Medical Board recorded the disability of the petitioner as 11% to 14 % and was stated to be a constitutional disease with which the petitioner suffered prior to joining of the army.

4. In the counter affidavit though the respondents have stated that the petitioner’s disability is 15% to 19% but from the medical record it is clear that the same is 11% to 14%. In either of the case, the petitioner does not satisfy any of the twin conditions stated in Rule 173 of the Pension Regulations 1961 (Part I). Once the basic conditions postulated under the Rules are not satisfied by the petitioner, his claim for grant of disability pension could not have been accepted by the authorities. Vide letter dated 24th January, 2005, the respondents had clearly communicated to the petitioner the reasons for rejection of his claim for grant of disability pension. The authorities had stated all the three reasons i.e. disability was less than 20% i.e. 11% to 14%, it was not attributable to military service and it existed prior to joining of military service. In the facts and circumstances of the case, the petitioner cannot take up the plea that he was found to be fit at the time of joining the military service. The mere fact that he was subjected to medical check up would not be of any consequence or help to the petitioner in view of his own admission in the medical records that he was suffering one year prior even to his placement to the training centre.

5. In terms of the judgment of the Supreme Court in the case of Controller of defense Accounts (Pension) and Ors. v. S. Balachandran Nair Page 2764 the report and opinion of the Medical Board has to be respected and cannot be ignored. Once the Medical Board has been conducted in accordance with law and patently does not suffer from any travesty or factual arbitrariness, the Court would accept the said opinion.

6. We may also notice that the present petition suffers from the defect of delay and latches. The petitioner was discharged from army in the year 1967 but has opted to approach the Court in the year 2005. During this long period, he has not taken any effective steps which could persuade the Court to condone the delay on the part of the petitioner. The remedy under Article 226 of the Constitution of India is a discretionary and equitable remedy. Keeping in view the facts and circumstances of the case, the objection of delay raised by the respondents would also have to be accepted.

7. For the reasons aforestated, we find no merit in this petition and the same is dismissed while leaving the parties to bear their own costs.