CDJ Law Journals

Sandeep V. Marne, J.

1) By this Petition, filed under Article 226 of the Constitution of India, the Petitioner challenges the Re-survey Medical Board Report (RMB) dated 29 July 2009 resulting in reduction of his disability pension from 30% to 15 % of last drawn basic pay. Petitioner was earlier certified to be 100% disabled in the Invalidation Medical Board (IMB) and was accordingly discharged from service on invalidation on medical ground of being permanently unfit under Rule 26 of the Indian Coast Guard (General) Rules, 1986 read with Central Civil Services (Extraordinary Pension) Rules, 1972 by order dated 7 July 2008. Upon being medically discharged, the Petitioner was sanctioned invalid pension under Rule 38 of the Central Civil Services (Extraordinary Pension) Rules, 1972, which is 50% of the last basic pay. Over and above the invalid pension, Petitioner also became entitled to disability element which was 30% of last basic pay on account of 100% disability certified by the IMB. However, a year later, the Petitioner was subjected to Re-survey Medical Board on 29 July 2009 in which his disability was reduced in the range of 15-19%. On account of fall in the percentage of disability from 100% to 15%-19%, the disability element has been reduced from 30% of last basic pay to 15% of last basic pay. Petitioner is accordingly aggrieved by the action of the Respondents in subjecting him to RMB and in reduction in his disability element and has accordingly filed the present petition.

2) Briefly stated, facts of the case are that the Petitioner was selected and appointed on the post of Navik-General Duty in the Indian Coast Guard, on 13 July 1992. He was thereafter promoted to the post of Uttam Navik and Pradhan Navik. Petitioner claimed that he performed rescue operations for saving lives of the people affected by Tsunami in December 2004 at the coasts of Maldives and Kerala. He claims that he became victim of outbreak of epidemic and fell sick in the month of March 2005 and was admitted to INHS Asvini Naval Hospital at Mumbai. He was diagnosed with Pulmonary Tuberculosis and was transferred to MH (CTC) Hospital at Pune which is specifically designated for treatment of Tuberculosis and Leprosy. He was discharged from the Hospital and resumed duties at Mumbai Headquarters in July 2005. In the year 2006, he was transferred to New Mangalore District Headquarters, where he allegedly suffered on account of extremely polluted air with presence of significant iron ore dust in the air resulting in deterioration of his health. The Pulmonary Tuberculosis of the Petitioner relapsed in July 2007 and he was again required to be admitted in MH (CTC), Hospital Pune. The Invalidation Medical Board was constituted under Regulations for the Medical Services of the Armed Forces Rules, 1983 (RMSAF Rules). The IMB on 29 October 2007 certified that the Petitioner was suffering from 100% disability for one year in the medical examination conducted. Some correspondence ensued between various authorities. It appears that the Commandant, New Mangalore District Headquarters had requested retention of the Petitioner in service in low medical category by letter dated 31 October 2007. The Commandant further wrote letter dated 25 December 2007 not recommending Petitioner’s case for discharge from service. During the course of correspondence, opinion from MH (CTC), Hospital Pune was summoned which was submitted by the Hospital on 26 March 2008. The report recommended invalidation of the Petitioner out of service in category ‘P-5’. By order dated 7 July 2008, Petitioner was discharged from Coast Guard service on invalidation medical grounds under Rule 26 of the Coast Guard (General) Rules, 1986. Petitioner was paid an amount of Rs.1,02,497/- towards survival benefits under Naval Group Insurance Fund Scheme (NGIF). By letter dated 22 September 2008, he was informed that his 100% disability was assessed only for one year and that the disease was capable of improvement. It was therefore conveyed to the Petitioner by letter dated 22 September 2008 that the disability benefits would be paid as per the outcome of RMB on completion of one year. Petitioner protested against letter dated 22 September 2008 and questioned as to how he could be discharged from service and reassessed again selectively for the purpose of payment of disability benefits by submitting letter dated 29 September 2008. The Petitioner started receiving 100% disability pension of Rs.1913/- corresponding to IMB certified 100% disability during the year 2008-2009 over and above the invalid pension.

3) The Petitioner was directed to remain present for RMB by letter dated 30 January 2009. On 7 July 2009, he received direction from INHS, Asvini Hospital Mumbai to remain present for RMB. Petitioner had no option but to remain present at INHS Asvini Hospital Mumbai on 29 July 2009. During the course of RMB, Petitioner’s disability was certified to be only in the range of 15-19%. By letter dated 8 June 2010, the Bureau of Navikas, Cheetah Camp, Mankhurd, Mumbai wrote to the Officer-in-Charge, Grants Civil Co-ordination (Group-VII), Office of the Principal CDA (Pension), Draupadighat, Allahabad requesting for issuance of Corrigendum Pension Pay Order (PPO) corresponding to 100% disability from 1 July 2008 to 30 June 2009 and 15-19% disability from 1 July 2009 till Petitioner’s lifetime. Petitioner was given copy of letter dated 8 June 2010. It appears that nothing transpired thereafter for a considerable period of time. From 2017 onwards, Petitioner started raising queries under Right to Information Act, 2005 (RTI Act). In one of the responses dated 2 November 2017, he received a reply that assessment of disability by IMB is final and for life and that there can be no periodical review by the RMB for reassessment of disability as per letter dated 7 February 2001. Petitioner thereafter kept on corresponding with the Respondents and also raised several queries under the RTI Act. Not satisfied with the responses, he has petitioned the Court challenging the RMB conducted on 29 July 2009 and seeking a direction for payment of 100% disability element/pension from 1 July 2009. Petitioner has also prayed for payment of insurance amount of Rs.5,00,000/- corresponding to 100% disability.

4) Mr. Bapat, the learned Senior Advocate appearing for the Petitioner has submitted that the Respondents have erroneously subjected the Petitioner to RMB in absence of any provision to that effect. That disability certified by the original IMB is final and the same cannot be reassessed from time to time. That decision to discharge Petitioner was taken on the basis of IMB proceedings with 100% disability on account of Pulmonary Tuberculosis relapse for one year and therefore payment of disability element must also be based on the percentage of disability taken into consideration at the time of discharge. He submits that Respondents cannot take into consideration 100% disability certified in IMB for the purpose of discharge but the reduced disability of 15-19% certified in the RMB for the purpose of deciding the quantum of diability pension.

5) Mr. Bapat further submits that there is no delay in filing the present Petition as the Petitioner was kept in dark about reduction of disability element. That after illegal conduct of RMB, the Petitioner was never informed of any reduction effected in the disability element and the basis for such reduction. Petitioner is not a highly educated person and realised the reduction effected in disability element only by the year 2017 after which he started making correspondence. That thereafter Petitioner cannot be accused of delay and laches. That in any case, payment of disability pension is a continuous cause of action and therefore there is no question of application of principles of delay or laches.

6) Mr. Bapat further submits that the Petitioner has been erroneously paid less amount of insurance of Rs.1,02,497/-, when he is entitled to be paid insurance amount of Rs.5,00,000/- by taking into consideration 100% disability. Mr. Bapat would accordingly pray for making the Petition absolute in terms of prayers made therein.

7) Mr. Garge, the learned Counsel appearing for the Respondents opposes the Petition. He submits that the petition is barred by laches as the cause of action for filing the present petition arose in July 2009 and that the Petition is filed after 10 long years. That there is no explanation for delay pleaded in the Petition.

8) Mr. Garge submits that the prayer of the Petitioner is otherwise barred by the principle of estoppel. That Petitioner has voluntarily appeared for RMB and has endorsed his signature on RMB proceedings. Having never protested about conduct of RMB, Petitioner cannot now turn around and question the result of the RMB. That Petitioner has alternate remedy of filing Appeal against the findings of the Medical Board which he has failed to avail within reasonable time.

9) Mr. Garge supports the conduct of RMB contending that the Petitioner was clearly informed immediately after his discharge that RMB would be conducted as the disease is curable. He relies on para-24 of Chapter-VII of GMO-MP-02 under which the Hospital is required to certify whether the disease was capable of improvement or incapable of improvement. That once certificate of ‘100% disability for one year’ is issued, the same means that the disease is capable of improvement. That if the disease is capable of improvement, RMB is required to be held at the end of one year. He submits that Armed Forces Medical Regulations are applicable to uniformed personnel of Indian Coast Guard as per letters dated 24 April 1982 and 29 March 2000. Mr. Garge would accordingly submit that RMB has been rightly conducted in the present case since Petitioner was certified with 100% disability only for period of one year since the disease was capable of being cured.

10) Mr. Garge submits that Petitioner is being paid all the due benefits. That Respondents have sanctioned invalid pension which is 50% of last basic pay. On the top, the Petitioner is also sanctioned disability pension/element of 15% of the last basic pay by taking into consideration his disability in the range of 15-19%. That he has also been paid the survival benefits of Rs.1,02,497/- under NGIF. He prays for dismissal of the Petition.

11) Rival contentions urged on behalf of the parties now fall for our consideration.

12) The short issue that arises for consideration in the present Petition is whether it is open for the Respondents to take into consideration disability certified at two distinct points of time for two distinct purposes? To paraphrase, whether Respondents can consider 100% disability certified in the IMB for the purpose of discharge of the Petitioner under Rule 26 of the Indian Coast Guard (General) Rules, 1986 but later consider the reduced percentage of disability certified in the RMB for the purpose of deciding the quantum of disability pension/element.

13) As observed above, Petitioner was suffering from Pulmonary Tuberculosis and was subjected to IMB in October 2007. The medical board certified the disability of Pulmonary Tuberculosis (Relapse). The percentage of disablement was certified as 100%. However, the duration of disability was certified as ‘one year’. A remark was made by the IMB in its Report that certification of disability was as per ‘Para-24 Chapter- VII of GMO-MP-02’. After the Report was submitted on 29 October 2007, the Commanding Officer of the Petitioner opposed discharge of the Petitioner and some correspondence ensued in this regard between various hierarchal levels. It appears that Report from MH (CTC), Hospital Pune was summoned, which gave report dated 26 March 2008 and which opined as under :

                   “A case of PULMONARY TUBERCULOSIS (RELAPSE) normally improving with ATT. He has relapsed within 2 years of completion of ATT. Hence recommended to be invalidated out of service in category P-5.’

14) A separate Certificate dated April 2008 was apparently issued certifying that the disability was likely to affect performance of sedentary duties in civic life. Respondents acted on the said Report dated 26 March 2008 and a decision was taken for discharge of the Petitioner on medical invalidation. He was accordingly discharged by order dated 7 July 2008.

15) While sanctioning the insurance amount by the NGIF, the Petitioner was informed that his 100% disability was assessed for only one year and that the disability benefits would be paid as per the outcome of RMB on completion of one year. Petitioner immediately protested against conduct of RMB by letter dated 29 September 2008. Contrary to the Petitioner’s protest, he was subjected to RMB, and his disability was reduced in the range of 15-19%.

16) Petitioner has been sanctioned invalid pension in accordance with Rule 38 of the Central Civil Services (Extraordinary Pension) Rules, 1972 which reads thus:

                   38. Invalid pension

                   (1) Invalid pension may be granted if a Government servant retires from the service on account of any bodily or mental infirmity which permanently incapacitates him for the service.

                   (2) A Government servant applying for an invalid pension shall submit a medical certificate of incapacity from the following medical authority, namely:-

                   (a) A Medical Board in the case of a Gazetted Government servant and of a non-gazetted Government servant whose pay, as defined in Rule 9 (21) of the Fundamental Rules, exceeds 3[Two thousand and two hundred rupees per mensem;

                   (b) Civil Surgeon or a District Medical Officer or Medical Officer of equivalent status in other cases.

                   NOTE 1. No medical certificate of incapacity for service may be granted unless the applicant produces a letter to show that the Head of his Office or Department is aware of the intention of the applicant to appear before the medical authority. The medical authority shall also be supplied by the Head of the Office or Department in which the applicant is employed with a statement of what appears from official records to be the age of the applicant. If a service book is being maintained for the applicant, the age recorded therein should be reported.

                   NOTE 2. A lady doctor shall be included as a member of the Medical Board when a woman candidate is to be examined.

                   (3) The form of the Medical Certificate to be granted by the medical authority specified in sub-rule (2) shall be as in Form 23.

                   (4) Where the medical authority referred to in sub- rule (2) has declared a Government servant fit for further services of less laborious character than that which he had been doing he should, provided he is willing to be so employed, be employed on lower post and if there be no means of employing him even on a lower post, he may be admitted to invalid pension.

17) There is no dispute to the position that the invalid pension is 50% of last basic pay. In addition, Petitioner is also eligible for disability pension/element. Under the Central Civil Services (Extraordinary Pension) Rules, the disability pension/element is payable as under :

                   III. Disability Pension:

                   for cases covered under Categories B and C

Sr. No.	Details
(1)	Normal pension and gratuity admissible under the CCS (Pension) Rules, 1972, plus disability pension equal to 30% of basic pay, for 100% disability
(2)	For lower percentage of disability, the monthly disability pension shall be proportionately lower as at present, provided that where permanent disability is not less than 60%, the total pension (i.e., pension or service gratuity admissible under the ordinary pension rules plus disability pension as indicated at (1) above) shall not be less than 60% of basic pay, subject to a minimum of Rs. 2500

The findings of the Medical Board on the extent of disability would be treated as final and binding unless the employee himself seeks a review by preferring an appeal to an Authority immediately superior to the one who had constituted the Board. In case the appeal is accepted and a review Medical Board is constituted, the findings of the Board would be binding on all parties.

18) There is no dispute to the position that if the disability is in the range of 51 to 100%, the disability pension is 30% of last basic pay and if it is less than 50%, the same is @ 15% of last basic pay.

19) Since Petitioner was certified to be suffering from 100% disability, he was entitled to 100% disability element. Since disability was 100%, his disability pension has been sanctioned as 30% of last basic pay till RMB Report (1 July 2008 to 30 June 2009). However, on account of subsequent reduction of disability extent to 15-19%, the disability pension is reduced from 30% to 15% of last basic pay from 1 July 2009 onwards. This is clear from the following averments of para- 41 of the Affidavit-in-Reply of the Respondents :

                   41. I say that, with reference to averments made in para (gg) of the Petition, it is submitted that on receipt of re-survey medical board for 15-19% disability for life, Petitioner's disability pension was revised 15% of last basic pay (for 100% of disability, the disability pension will be 30% of last basic pay and may be reduced proportionately for less disability). Invalid pension sanctioned to petitioner @ 50% of last basic pay is not affected due to this re-assessment of disability. Exhibit 'W' of the petition is admitted.

20) Thus, Respondents have taken into consideration 100% disability of the Petitioner certified in the IMB for the purpose of throwing him out of service on medical invalidation. However, for the purpose of determining the quantum of the disability pension, subsequently reduced disability of 15-19% in the RMB is taken into consideration. Whether this is permissible is the issue for consideration.

21) Respondents have justified conduct of RMB by referring to para-24 of Chapter VII of GMO-MP-02. Petitioner questions applicability of the said provision, which, according to him, is applicable for members of Armed Forces and that the same do not apply to Coast Guard Personnel. On the other hand, Respondents have relied upon letters dated 29 April 1982 and 29 March 2000 in support of their contention that Armed Forces Medical Regulations have been made applicable for Coast Guard uniformed personnel. In my view, it is not necessary to delve deeper into this controversy. Even if it is assumed arguendo that RMB can be conducted in respect of the coast guard uniformed personnel suffering from Pulmonary Tuberculosis, the issue is whether RMB can be conducted in respect of Coast Guard personnel who is already discharged from service. Respondents have not produced copy of para-24 of Chapter-VII of GMO-MP-02. However, the same is reproduced in the Note of arguments. Though not very relevant, we consider it necessary to reproduce relevant part of para-24 Chapter-VII of GMO-MP-02, which reads thus:

                   24. The degree of disablement on invalidment from a service hospital will be regarded as 100 per cent for one year in cases which are "capable of improvement" and as 100 per cent for two years in cases which are regarded as "incapable of improvement". Thereafter, the assessment will be made as follows:

                   (a) Capable of improvement: In this condition, assessment depends upon whether disability is quiescent, arrested or cured/recovered, as defined in para 81 of chapter VI. A quiescent case, will be assessed at 50-100 per cent for two years; an arrested case at 20-50 per cent for three years; and a cured/recovered case at less than 20% final.

                   (b) Incapable of improvement: If the reassessment Medical Board confirm the initial findings that the disability is incapable of improvement a life award for 100 per cent disablement will be granted. If, on the other hand, the Reassessment Medical Board finds that there has been an improvement they will classify the disability as capable of improvement, and the degree of disablement will be assessed as in (a) above. Disablement for cases after surgical treatment will depend upon functional incapacity suffered due to the disease and the effects of surgical treatment. An individual with a quiescent or arrested lesion may be employed, but the assessment will not be reduced because the individual is capable of earning his livelihood.

22) Thus, under para-24 Chapter-VII of GMO-MP-02, the IMB is required to certify whether the patient is to be regarded as disable ‘100% for one year’ (capable of improvement) or as ‘100% for 2 years’ (incapable of improvement). In the present case, Petitioner has been certified100% disabled for one year by the IMB meaning thereby that he was capable of improvement. If that was the case, Respondents ought to have waited for one year and then subjected the Petitioner for RMB. Instead of doing so, they hurriedly discharged the Petitioner from service by relying on IMB Report which had certified that the Petitioner was capable of improvement. The IMB Report also refers to para-24 of Chapter-VII GMO-MP-02. Instead of relying on the IMB Report, it appears that the Respondents took into consideration one more report of MH (CTC), Hospital Pune dated 26 March 2008 which recommended Petitioner’s invalidation out of service. It appears that Respondents were not sure about the course of action to be adopted on the basis of disability certified in the IMB Report. Petitioner’s own Commanding Officer was not in favour of Petitioner’s discharge from service and repeatedly requested for his retention in low medical category. Respondents ought to have waited for one year and ought to have subjected the Petitioner to RMB to find out whether there was any improvement in his condition. If this was done and Petitioner’s disability would have been reduced to 15-19% after one year and then could have been retained in service. Respondents however adopted a procedure unknown to law by seeking a Report from MH (CTC) Hospital, Pune on 26 March 2008 which recommended Petitioner’s medical invalidation out of service and proceeded to pass order of discharge and discharged him on 7 July 2008 even before completion of period of one year and without subjecting him to RMB.

23) Thus, even if conduct of RMB is held to be permissible, issue is whether Respondents were justified in not waiting for a period of one year and not subjecting the Petitioner to RMB before taking a decision for discharge from service. We need not again delve deeper into this aspect as Petitioner did not question his discharge from service and had possibly no option but to accept the same. However, what is subsequently done by the Respondents is clearly inappropriate and arbitrary. There was no necessity of submitting Petitioner to RMB after he was discharged from service. Respondents unnecessarily conducted Petitioner’s RMB and have used the reduced disability to 15- 19% as reflected in the RMB for the purpose of reduction of disability pension from 30% to 15%. This action on the part of the Respondents is clearly arbitrary, unsustainable and liable to set aside.

24) In our view, Respondents cannot rely on disability reflected in IMB (100%) for throwing the Petitioner out of service but thereafter rely on reduced disability (15-19%) reflected in RMB for the purpose of deciding his disability pension. This difference in standard applied by the Respondents is clearly objectionable. We deprecate the same. In our view therefore, the action of the Respondents in reducing the pension of the Petitioner on disability certified in the RMB is clearly illegal and liable to be set aside.

25) The Petitioner shall accordingly be entitled to 30% disability pension i.e. 30% of his last drawn basic pay from the date of his discharge.

26) The Petitioner has filed the present Petition with substantial delay. His disability pension was reduced from 30% to 15% of last drawn basic pay sometime in the year 2009. After initial protests, Petitioner started correspondence in this regard only in 2017 and has thereafter filed the present Petition in the year 2019. We are not inclined to dismiss the Petition only on the ground of delay since payment of reduced quantum of disability pension is a continuous cause of action. We have entertained the petition on merits considering the position that payment of less amount of disability pension is a continuous cause of action, which arises every month when Petitioner is paid lesser amount of disability pension. In that view of the matter, the ratio of the judgment of the Apex Court in M.R. Gupta Versus. Union of India(1995 5 SCC 628) would apply to the present case. However, in M.R. Gupta Versus. Union of India, the Apex Court has held that limitation would apply to the relief of recovery of arrears. The principle is reiterated by the Apex Court in the subsequent judgment in Union of India Versus. Tarsem Singh(2008 8 SCC 648) in which it has been held that though there is exception to the normal rule of limitation in cases involving continuous cause of action, there is an exception to that exception where the arrears need to be restricted to period of 3 years before filing of the proceedings. In Shiv Dass Versus Union Of India,(2007 9 SCC 274) the Apex Court has held that if a petition is filed beyond reasonable period i.e. 3 years, the Court would either reject the same or restrict the relief which could be granted in respect of reasonable period of 3 years. In our view therefore though Petitioner’s entitlement for receipt of higher amount of disability pension is upheld, the arrears are required to be restricted to the period of 3 years prior to filing of the petition.

27) So far as Petitioner’s claim for insurance of Rs.5,00,000/- is concerned, it appears that the Respondents have paid to the Petitioner amount of Rs.1,02,497/- towards NGIF. It appears that the said amount is paid by taking into consideration disability in the range of 15-19% as reflected in the RMB. Therefore, the Respondents are required to redetermine the amount payable to the Petitioner under NGIF Scheme corresponding to 100% disability as reflected in the initial IMB Report.

28) The Petition accordingly succeeds, and we proceed to pass the following order :

                   (i) The action of the Respondents in reducing and paying disability pension by taking into consideration the extent of disability in the RMB conducted in June 2009 is held to be illegal and the same is set aside.

                   (ii) Respondents are directed to refix the disability pension of the Petitioner by taking into consideration 100% disability reflected in the Report of the initial IMB.

                   (iii) However, Petitioner shall be entitled to arrears arising out of difference in the amount of disability pension only for a period of 3 years prior to the date of filing of the petition.

                   (iv) Respondents shall also pay to the Petitioners difference in the amount of insurance in NGIF, if any, by taking into consideration 100% disability reflected in the IMB Report.

                   (v) All amounts arising out of the judgment shall be paid over by the Respondents to the Petitioner within a period of 8 weeks.

29) With the above directions, the Petition is partly allowed. Rule is made partly absolute. There shall be no order as to costs.

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