“Denial of disability pension should be based on reasoned order”: Delhi High Court

Background

The petitioner joined the Indian Coast Guard and while serving as Uttam Navik. He suffered from two disabilities. The first disability being “Recurrent Depressive Disorder” started on 11/15/2009 and the second disability being “Prolapsed, Herniated or Extruded Intervertebral Disc” started on 12/09/2006.

On 17.06.2013, the Medical College assessed the petitioner’s first disability at 40% for life, being neither attributable nor aggravated by service. The second skill was rated as 20% for life and assigned to the service by the Medical Board. The composite rating for both disabilities was rated at 50% for life. The Medical Board recommended that the petitioner be granted disability pension, but subsequently the Pension Sanctioning Authority passed an order on 21.03.2014 granting the petitioner only disability pension (as per Rule 38 of the CCS (Pensions) Rules, 1972).

Having been in service for 11 years, the petitioner was invalided out of service on 27.08.2013.

The petitioner claimed that he was entitled to disability pension but the respondents informed him that only disability pension would be granted to him. He subsequently sent the defendants a legal notice with representation/appeal dated 17.08.2018, and on 29.11.2018, the Coast Guard, Headquarters rejected the petitioner’s request for disability pension.

Dissatisfied with the same, the petitioner approached the High Court.

Petitioner’s objections:

Counsel for the petitioner submitted that at the time of recruitment, the petitioner was physically and mentally fit and that the first disability developed after serving for 7 years in the Force, indicating that there was no pre-existing disease. Pointing out that service in the Armed Forces was stressful and tiring, counsel stated that the petitioner was posted in Port Blair, a difficult area, even before he developed his first disability in 2009.

Referring to the “Guidelines for Attribution of Disability or Death to Government Service” in the CCS (EOP) Rules, counsel stated that the Medical Board should have considered the first disability as attributable to service as the petitioner developed it during his active service . It was submitted that in the Disability Pension Denial Letter to the petitioner it was stated that he was not entitled to the same as the diseases he was suffering from were not included in Schedule 1-A of the CCS (EOP) Rules. However, the second disability was mentioned in paragraph A of SI no. (xiv) of Annex 1-A, and the first disability was mentioned in paragraph B of SI no. (i) of the same annexure, counsel argued.

Counsel further argued that the names of all diseases cannot be mentioned in the program and therefore certain terms were used interchangeably citing the example of Lumbago disease as mentioned in the program 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 in the Schedule. Counsel further stated that disability pension was granted in cases where the disability/disease could neither be attributed nor aggravated by service with qualifying service of 10 years or more, but in the case of the petitioner, the second disability was attributed service and was therefore entitled to claim the invalidity pension.

The lawyer relied on several decisions, including Abhai Singh vs Border Security Force, WP (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 their claims.

Objections of the defendant:

Counsel for the respondents submitted that the petitioner was disabled from service because of his first ability which was neither attributable nor aggravated by service. Citing Rule 3-A of the CCS(EOP) Rules, it was contended that disability pension was not sanctioned to the petitioner under these Rules. Moreover, according to the analysis carried out by the sanctioning authority, the Petitioner’s case was not covered by this Regulation, argued the Lawyer.

The second disability was held to be serviceable by the Medical Board, but the petitioner was disabled on account of the first disability, counsel stated.

With regard to combined disability, counsel stated that the petitioner’s case was not that of compound disability because the combined disability was to be assessed at the time of invalidation and the petitioner’s first disability was determined to be neither attributable nor aggravated by the service of to the Medical Council. .

It was further argued that according to the petitioner’s medical history, the proceedings of the Medical Board decided that the disability had any causal connection with the service rendered.

The lawyer also argued that the petition deserved to be dismissed as it had suffered delays and delays. To justify the statements made, the lawyer relied on the decision made in Uttam Adhikari Surender Singh Vs. Union of India and Ors., WP(C) No. 9579/2017.

The Court’s findings:

Citing the decision in Union of India and Ors. Vs. Tarsem Singh and Ex-Sep Chain Singh Vs. UOI and OrsThe Court held with regard to the delay that a deferred request can be taken into account if the cause of action subsists, being a continuous fact, and the administrative action does not affect the rights of third parties. It was held that the petitioner was invalided from service in 2013 and thereafter he was only granted disability pension, in response to which he made a representation for grant of disability pension and sent a legal notice-representation in 2018. The petitioner also sent many reminders. However, his application was rejected in 2018. Finally, the petitioner approached the Court in 2019. Therefore, the Petition could not be dismissed 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 disabled from service and the second disability was held to be attributable to service.

The Court scrutinized the CCS Rules (EOP) and “Guidelines for Attribution of Government Service Disability or Death” and observed that in order to accept the disability, it was important that the disability be attributed to or aggravated by military service. The Tribunal held that when the petitioner joined the service, he was not suffering from any disability. Upon further examination of the Medical College Procedure, the Court held that, since the first disability was detected for the first time in 2009, after more than 6 years of activity, it can be assumed that it was caused or aggravated by service.

The Court cited the decision of the Apex Court dated Dharamvir Singh Vs. UOI where it was held

“A member is presumed to be in a healthy physical and mental condition upon entering service if no note or record exists at the time of entry. If he is subsequently released from service on medical grounds, any deterioration in his health is presumed to be due to service. The burden of proof is not on the plaintiff (employee), the corollary is that burden of proof that the condition of unfairness is on the employer. A claimant is entitled to the benefit of reasonable doubt and is entitled to pension benefit more liberally’.

The Court held that since the petitioner was posted in a difficult area, the possibility that both disabilities may have occurred during active service cannot be ruled out. Noting that the Medical College recommended the petitioner’s case for disability pension as he suffered a lifetime disability of 20% for the second disability, the Court held that the respondents did not justify not taking into account the opinion of the Medical College for not granting the element of invalidity of the petitioner’s pension.

It was held that the Medical Board had recommended to grant disability pension to the petitioner but the respondents granted disability pension to the petitioner only in a mechanical manner without considering the opinion of the Medical Board.

The Court held that, in the absence of reasons why the first disability was not attributable to the service, and also not having fulfilled the burden of proof that falls to them to prove the condition of unfairness of the disability pension towards the petitioner, the Court ordered the respondents to grant the petitioner disability pension, with an interest of 8% per annum, by taking his two disabilities at 50% and, consequently, issuing the pension to him in a period of two months.

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

Counsel for Petitioner: Mr. Ved Prakash, Adv

Respondent Advocates: Mr. Vikrant N. Goyal, Mr. Arpit Kumar and Mr. Aditya Shukla, Adv.

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