'Rejection Of Disability Pension Should Be Based On Reasoned Order ': Delhi High Court

Background

The Petitioner joined the Indian Coast Guard and while he was serving as an Uttam Navik. He suffered from two disabilities. The first ability being “Recurrent Depressive Disorder” started on 15.11.2009 and second disability being “Prolapsed, herniated, or extruded intervertebral disc” started on 09.12.2006.

On 17.06.2013, the Medical Board assessed the petitioner's first disability at 40% for life, being neither attributable to nor aggravated by service. The second ability was assessed as 20% for life and attributable to service by the Medical Board. The Composite Assessment for both the disabilities was assessed at 50% for life. The Medical Board recommended that the Petitioner be granted Disability Pension but later the Pension Sanctioning Authority passed an order on 21.03.2014 granting the Petitioner only Invalid Pension (as per Rule 38 of CCS (Pension) Rules, 1972).

Having served for 11 years, the Petitioner was invalidated out of service on 27.08.2013.

The Petitioner claimed to be entitled to Disability Pension but the Respondents informed him that he would only be granted Invalid Pension. Later he sent a legal notice cum representation/appeal dated 17.08.2018 to the Respondents and on 29.11.2018, the Coast Guard, Headquarters rejected the Petitioner's claim for Disability Pension.

Aggrieved by the same, the Petitioner approached the High Court.

Contentions of the Petitioner:

The Counsel for the Petitioner submitted that at the time of recruitment, the Petitioner was physically and mentally fit and the first disability developed after serving for 7 years in the Force, indicating that there was no pre-existing disease. Emphasizing that serving in the Armed Forces was stressful and strenuous, the Counsel stated that the Petitioner was posted in Port Blair, a hard area, just before developing the first disability in 2009.

Mentioning “Guidelines for Conceding Attributability of Disablement or Death to Government Service” of the CCS(EOP) Rules, the Counsel stated that the Medical Board should have held the first disability as attributable to service since the Petitioner developed it during his active service. It was submitted that the Letter denying Disability Pension to the Petitioner stated that he was not entitled to the same as the diseases he suffered from were not included in Schedule 1-A of the CCS (EOP) Rules. However, the second disability was mentioned in Paragraph A at SI No. (xiv) of Schedule 1-A and the first disability was mentioned in Paragraph B at SI No. (i) of the same Schedule, the Counsel submitted.

The Counsel further argued that names of all the diseases could not be mentioned in the schedule and therefore certain terms were interchangeably used, citing the example of the Lumbago disease as mentioned in the schedule which was an alternative name for lower back pain. Similarly, Recurrent Depressive Disorder which is a mental disorder was not specifically mentioned in the Schedule, however, it was mentioned under Psychosis and Psychoneurosis of the Schedule. The Counsel further stated that Invalid Pension was granted in cases where disability/disease could neither be attributed to nor aggravated by service with a qualifying service of 10 years or more but in the Petitioner's case, the second disability was attributable to service and therefore he was entitled to claim Disability Pension.

The Counsel relied on several judgments including Abhai Singh vs Border Security Force, W.P. (C) No. 2059/2007, Ram Narain vs Union of India and others, CW(P) No. 16319/2012 and Dharamvir Singh vs Union of India & Ors., Civil Appeal No. 4949 of 2013, (2013) AIR SCW 4236 to justify his contentions.

Contentions of the Respondent:

The Counsel for the Respondents submitted that the Petitioner was invalidated from service due to his first ability which was neither attributable to nor aggravated by service. Citing Rule 3-A of the CCS(EOP) Rules, it was submitted that Disability Pension was not sanctioned to the petitioner as per these Rules. Moreover, as per the analysis made by the sanctioning authority, the Petitioner's case was not covered under these Rules, the Counsel submitted.

The Second disability was considered to be attributable to service by the Medical Board but the Petitioner was invalidated from service because of the first disability, the Counsel stated.

Regarding the composite disability, the Counsel stated that the Petitioner's case was not that of Composite Disability because Composite Disability was to be assessed at the time of invalidation and the petitioner's first disability had been established as neither attributable to nor aggravated by service by the Medical Board.

It was further argued that as per the Petitioner's past medical history, the Medical Board proceedings had ruled that that the disability had any causal connection with the service rendered.

The Counsel further argued that the Petition deserved to be dismissed because it suffered from delay and laches. To justify the contentions made, the Counsel relied on the decision made in Uttam Adhikari Surender Singh vs Union of India and Ors., WP(C) No. 9579/2017.

Findings of the Court:

Citing the decision in Union of India and Ors. Vs. Tarsem Singh and Ex-Sep Chain Singh vs. UOI and Ors, the Court held in relation to the delay that a delayed claim may be entertained in case the cause of action subsists, being a continuous wrong, and the administrative action doesn't affect the third parties' rights. It was held that the Petitioner was invalidated from service in 2013 and later he was granted only invalid pension in response to which he made a representation for grant of Disability Pension and sent a legal notice-cum-representation in 2018. The Petitioner also sent many reminders. However, his claim was rejected in 2018. Finally, the Petitioner approached the Court in 2019. Therefore, the Petition could not be rejected on the ground of delay and laches, the Court held.

The Court held that it had to determine whether the Petitioner was entitled to disability pension while he was invalidated from service and his second disability was held to be attributable to service.

The Court perused the CCS (EOP) Rules and the 'Guidelines for Conceding Attributability of Disablement or Death to Government Service' and observed that in order to accept the disability, it was important that the disability was attributable to or aggravated by military service. The Bench held that when the Petitioner entered service, he was not suffering from any disability. On further perusal of the Medical Board Proceedings, the Court held that since the first disability was detected for the first time in 2009, after more than 6 years of being in service, it could be presumed to have been caused by or aggravated by service.

The Court cited the decision of the Apex Court in Dharamvir Singh vs. UOI wherein it was held,

'A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be presumed due to service. Onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for non-entitlement is with the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally.'

The Court held that since the Petitioner was posted in a hard area, the possibility of both the disabilities having arisen while he was in active service could not be ruled out. Holding that the Medical Board had recommended the case of the petitioner for Disability Pension as he had suffered 20% lifelong disability for the second disability, the Court held that the Respondents had not provided reasons for not having considered the opinion of the Medical Board for not granting the disability element of pension to the petitioner.

It was held that the Medical Board had recommended that the Petitioner be granted Disability Pension but the Respondents had only granted Invalid Pension to the petitioner in a mechanical manner without considering the opinion of the Medical Board.

The Court held that in absence of reasons as to why the first disability was not attributable to service and also having failed to discharge the onus of proof that was on them to prove the condition for non-entitlement of the Disability Pension to the petitioner, the Court directed the respondents to grant Disability Pension to the petitioner, with an interest at 8% per annum, by taking his two disabilities at 50% and, accordingly, release pensionary benefits to him within a period of two months.

Case Title: EX U/NVK (ME) PRAVINDERA SHARMA versus UNION OF INDIA & ORS

Citation: 2024 LiveLaw (Del) 1388

Counsel for the Petitioner: Mr. Ved Prakash, Adv

Counsel for the Respondents: Mr. Vikrant N. Goyal, Mr. Arpit Kumar & Mr. Aditya Shukla, Advs.

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