S.Neelakandapillai v. Union of India, Ministry of Defence

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.3.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.No.12954 of 1999S.Neelakandapillai.. Petitioner-vs-1.Union of India, rep.by theSecretary, Ministry of Defence,(Pension Grievance Cell),New Delhi.2.The Record Officer,Madras Regiment AbhilekhKaryalaya Records,The Madras Regiment,Wellington (Nilgiris)-643 241.3.The Director, Ex-servicemen Board,Teynampet, Chennai-18. .. Respondents (R3 impleaded as per order dt.02.9.2003 in WMP.1586 of 2000)PRAYER : Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorarified mandamuscalling for the records relating to the order of the secondrespondent made in Ref.No.03195/EP/Gen/63/PG3, dated 11.5.1999 andquash the same and consequently direct the respondents to considerthe representation of the petitioner dated 06.6.1999 addressed to thefirst respondent on merits.For petitioner: Mr.L.ChandrakumarFor respondents: Mr.C.Kanagaraj*****O R D E R The petitioner seeks to challenge the order of the secondrespondent dated 11.5.1999 wherein and by which the petitioner wasdenied service pension as well as disability pension. In respect of https://hcservices.ecourts.gov.in/hcservices/ the service pension, it was stated that he got enrolled in the Armyon 02.4.1948 (Travancore State Armed Force). Subsequently, the saidForce got merged with the Madras Regiment of the Indian Army. Thepetitioner was discharged from service on 01.2.1955 and altogether hehas put in 6 years and 307 days qualifying service. Since a minimumof 15 years qualifying service is required to earn service pension,he was informed that he was not eligible for any service pension. Bythe same impugned order, the petitioner was also informed that he wasalso not eligible for any disability pension. 2. It is the case of the petitioner that while he was in theHyderabad Unit of the Indian Army, his unit was sent to Kashmir. Buthe could not join that unit due to an ailment in his left eye. He wastreated in the Army hospital as well as in the Navy hospital atMumbai. He was operated upon and in the course of the treatment helost his left eyesight. Though the petitioner claimed the disabilitypension, the same was denied by the respondents. After sendingrepresentations, the petitioner filed the writ petition claiming fora direction to the respondents to consider his representation dated06.6.1999. 3. He placed reliance upon Rule 173 of the Army Rules, whichprovides primary conditions for grant of disability pension. Rule 173reads as follows:-''173. Unless otherwise specifically provided, a disabilitypension may be granted to an individual who is invalidedfrom service on account of a disability which isattributable to or aggravated by military service and isassessed at 20 per cent or over.The question whether a disability is attributable toor aggravated by military service shall be determined underthe rules in Appendix II."4. A counter affidavit dated 29.9.1999 was filed by respondents 1and 2. In paragraphs 6 and 7, the following averments have been made:-''Para 6. ... it is agreed to partially, that theservice/medical documents have been destroyed afterthe expiry of retention period of 25 years. However,as per the available records, the petitioner wasinvalided out from service due to ''SUB ACUTECONGESTIVE GLANCOMA (LT), this was regarded neitherattributable to nor aggravated by military service andthus no disability pension was granted to him.Para 7. ... it is submitted that the petitioner had submittedhis disability pension claim, after his dischargefrom service, to CCDA(P), Allahabad and the same hadbeen rejected vide letter No.G3/CA/55/02082/III dated21.1.1956 stating that the disability on account of https://hcservices.ecourts.gov.in/hcservices/ which he was discharged from service was neitherattributable to nor aggravated by military serviceand hence he was not entitled to any disabilitypension".(Emphasis Added)5. Mr.L.Chandrakumar, learned counsel for the petitioner placedreliance upon the judgment of the Supreme Court in Union of India andanother -vs- Bashirbhai R.Khiliji reported in (2007) 6 SCC 16. Herelied upon the passages found in paragraphs 9 and 10, which may beusefully extracted below:-Para 9. ..... ''Therefore, the minimum qualifying service often years is mentioned in Rule 49. The word“qualifying service” has been defined in Rule 3(1)(q) of the Rules which reads as under:“3. (1)(q) ‘qualifying service’ means servicerendered while on duty or otherwise whichshall be taken into account for the purposeof pensions and gratuities admissible underthese Rules;”Para 10. Therefore, the minimum qualifying service which isrequired for the pension as mentioned in Rule 49, isten years. The qualifying service has been explainedin various memos issued by the Government of Indiafrom time to time. But Rule 49 read with Rule 38makes it clear that qualifying service of pension isten years and therefore, gratuity is determined aftercompletion of qualifying service of ten years.Therefore, for grant of any kind of pension one hasto put in the minimum of ten years of qualifyingservice. The respondent in the present case, does nothave the minimum qualifying service. Therefore, theauthorities declined to grant him the invalidpension. But the amount of gratuity has beendetermined and the same was paid to him." 6. He also further submitted that the Supreme Court in thatparticular case directed the authorities to grant a sum of Rs.1 lakhas ex gratia, as in that case the respondent was discharged onaccount of impairment of both of his ears and he has become invalidto serve anywhere. But in the present case the petitioner had lostonly his left eye and it was contended by the respondents that it wasneither aggravated nor attributable to military service.7. It is necessary in this context to refer to certain otherdecisions of the Supreme Court regarding grant of disability pensionon account of military service. In the case of R.Paramasivam vs. https://hcservices.ecourts.gov.in/hcservices/ Union and India in W.A.NO.3143 of 2004 dated 27.06.2005 in paragraphs3 and 4, the Division Bench had observed as follows:- Para 3. ''This Court cannot sit as a Court of appeal overadministrative decisions. The scope of judicialreview of administrative decisions is very limited.It is true that while prior to 1947 the Courts wouldnot undertake judicial review of administrativedecisions, but after the historical decision of theHouse ofLords in the Wednesbury case (AssociatedProvincial Picture Houses Ltd., vs. WednesburyCorporation, (1947) 2 All. L.R.680) the law wasslightly changes and it was held that there can bejudicial review of administrative decisions but thatcan only be done only on certain very limitedgrounds, vide State of N.C.T. of Delhi vs.Sanjeev,AIR 2005 SC 2080. The Court cannot ordinarily sit inappeal over the decision of the administrator, butcan only look into the manner of reaching the saiddecision. In the present case, we cannot questionthe decision of the Medical Board and we cannot sitin appeal over the same".Para 4. ''Our view get support from the decision of theSupreme Court in Union of India vs. Baljit Singh,(1996) 11 SCC 315 = 1997 (1) SLR 98 and the decisionof the Punjab and Haryana High Court in Gurdip Singh(retd.) Subedar (Rony Lt) vs. Union of India, 1997(5) SLR 341.".8. In Union of India vs. Baljit Singh reported in 1996 (11) SCC315, the Supreme Court had analysed Rule 173 of the PensionRegulations for the Army. It was observed that where the MedicalBoard found that there was absence of proof of the injury/illnesshaving been sustained due to military service or being attributablethereto, the High Court's direction to the Government to paydisability pension was not correct. It is necessary to refer to thefollowing passage found in paragraph 6 of the order:-Para 6 ''....... It is seen that various criteria havebeen prescribed in the guidelines under the Rulesas to when the disease or injury is attributable tothe military service. It is seen that under Rule173 disability pension would be computed only whendisability has occurred due to wound, injury ordisease which is attributable to military serviceor existed before or arose during military serviceand has been and remains aggravated during themilitary service. If these conditions aresatisfied, necessarily the incumbent is entitled to https://hcservices.ecourts.gov.in/hcservices/ the disability pension. This is made ample clearfrom clause (a) to (d)of para 7 which contemplatedthat in respect of a disease the Rules enumeratedthereunder required to be observed. Clause ©provides that if a disease is accepted as havingarisen in service, it must also be established thatthe conditions of military service determined orcontributed to the onset of the disease and thatthe conditions were due to the circumstances ofduty in military service. Unless these conditionssatisfied, it cannot be said that the sustenance ofinjury per se is on account of military service.In view of the report of the Medical Board ofDoctors, it is not due to military service. Theconclusion may not have been satisfactorily reachedthat the injury though sustained while in service,it was not on account of military service. In eachcase, when a disability pension is sought for madea claim, it must be affirmatively established, as afact, as to whether the injury sustained was due tomilitary service or was aggravated whichcontributed to invalidation for the militaryservice".9. Once again, the Supreme Court in its latest decision quotedwith approval the decision in Union of India and Others vs. KesharSingh reported in 2007 AIR SCW 2760 in Union of India and Othersvs. Surinder Singh Rathore reported in 2008 AIR SCW 2890 = 2008 (5)SCC 747. In paragraph 9 of the Judgment, it has been observed asfollows:-Para 9.''The Medical Board's opinion was clearly to theeffect that the ailment suffered by the appellant wasnot attributable to the military service and also notaggravated due to it. Learned Single Judge and theDivision Bench were not justified in holding that thesame was attributable to Military service and/or wasaggravated because of service. The respondent is notentitled to disability pension. However, on the factsand in the circumstances of the case payment, if any,already made to the respondent by way of disabilitypension, shall not be recovered".10. The judgments rendered with reference to disability pensionwill also have a bearing on the question of grant of invalid pensionbecause the terms ''aggravated" and ''attributable" are found in theRules relating to both invalid pension and disability pension. Apartfrom this, in respect of invalid pension, there is also minimumservice contemplated. https://hcservices.ecourts.gov.in/hcservices/

11. Though the learned counsel insisted upon the direction givenby the Supreme Court for a lumpsum payment as ordered by the SupremeCourt in Bashirbhai R.Khiliji's case (cited supra), such a directioncannot be granted by this Court on two grounds. Firstly, the SupremeCourt's direction is attributable to Article 142 of the Constitutionwhich power is not available to the High Court exercising power underArticle 226. Secondly, in the present case, the discharge took placein the year 1955 and the first representation was made only after 40years and the case also came up for hearing after 50 years of suchdischarge. There are no records produced before this Court justifyingmaking such claim.12. In the light of the above, there is no case made out forinterfering with the impugned orders passed by the respondents.Accordingly, the writ petition will stand dismissed. However, therewill be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarjs To1.The Secretary to Government of India, Ministry of Defence,(Pension Grievance Cell),New Delhi.2.The Record Officer,Madras Regiment AbhilekhKaryalaya Records,The Madras Regiment,Wellington (Nilgiris)-643 241.3.The Director, Ex-servicemen Board, Teynampet, Chennai-18. 1 CC To Mr.K.ChandraKumar, Advocate, SR NO.8984 W.P.No. 12954 of 1999bv(co)pmk/25.3.2009.