Disability Pension, PCDA(P) Can't Overrule Medical Board Findings: J&K HC

A Division bench of the Jammu and Kashmir High Court comprising Justice Sanjeev Kumar and Justice Sanjay Parihar held that the Principal Controller of Defence Accounts (PCDA) (Pension) has no jurisdiction to alter or reduce the disability percentage assessed by a duly constituted Medical Board, only a higher/review medical board can reassess it, and the benefit of rounding off of disability pension applies even in cases of normal retirement where disability is attributable to or aggravated by military service. Background Facts The respondent had joined the Indian Army on 18.02.1976 in a fit medical condition. He was discharged on 29.02.1992 after incurring disability of Lumbar Spondylosis with backache. At the time of discharge, his disability was assessed at 6–10% permanent. It was considered aggravated by military service. However, the PCDA (P), Allahabad, granted disability pension at 20% for five years. Subsequently, the Re-Survey Medical Board (RSMB) held on 26.09.1996 assessed his disability at 20% for ten years, but the PCDA (P) arbitrarily reduced it to 11–14% without reasons. A further RSMB held on 04.06.2002 assessed his disability at 11–14% for life, leading to denial of disability pension beyond 1996. Aggrieved, the respondent filed an original application before the Armed Forces Tribunal, Regional Bench Srinagar at Jammu. The Tribunal held that the PCDA (P) had no authority to sit over the medical opinion of the RSMB. Therefore, it restored the respondent's entitlement to disability pension. The Tribunal quashed the orders dated 24.09.1999 and 16.12.2002 and held the respondent entitled to disability pension w.e.f. 25.06.2014, restricting arrears to three years prior to filing of the OA. Aggrieved by the same, the petitioner (Union of India) filed the writ petition challenging the order dated 23.12.2021 passed by the Armed Forces Tribunal. It was submitted by the petitioners that the Tribunal committed a grave error in allowing the claim of the respondent despite the fact that his disability was assessed at less than 20% both at the time of discharge and in the subsequent Re-Survey Medical Board. It was further submitted by the petitioners that the opinion of the Medical Board, being a panel of experts, carries primacy and is not open to judicial review unless strong medical evidence to the contrary is available. It was also stated that the respondent had approached the Tribunal after an inordinate delay of 17 years from the date of cause of action. Lastly, it was urged that the benefit of rounding off of disability pension could not have been extended to the respondent as he was not invalided out of service but had retired on normal superannuation. On the other hand it was submitted by the respondent that the Tribunal had already taken care of the issue of delay by restricting the arrears of disability pension to only three years prior to the filing of the Original Application. It was contended that the disability of the respondent was recognized by the Medical Board as aggravated by military service, therefore he was entitled to the pension. Findings of the Court It was observed by the Court that the opinion of a duly constituted Medical Board consisting of expert doctors carries primacy and cannot be overridden by the Principal Controller of Defence Accounts (Pension), who is only an administrative authority. It was held that the PCDA (P) had acted without jurisdiction in reducing the disability percentage from 20% to 11–14% despite the assessment of the Re-Survey Medical Board held on 06.09.1996. It was further observed by the court that power and scope of PCDA(P), Allahabad is very limited and normally the jurisdiction to sit over the opinion of the Medical Board cannot be conceded to it. It is only in exceptional cases and as may be provided in Army instructions, the PCDA (P) may refer the matter back to the competent authority for placing it before the appellate Medical Board for reconsideration. The case of Secretary, Ministry of Defence and others v. A.V. Damodaran (dead) through LRs was relied upon by the court wherein the Supreme Court held that in matters concerning disability pension, the assessment of the Release/Invalidating Medical Board, recorded in AFMSF-16, is determinative. The opinion of such Medical Boards is to be accorded primacy and due weightage in adjudicating whether the disability is service-related and whether the individual is entitled to disability pension. The case of Ex Sapper Mohinder Singh v. Union of India and another was relied upon by the court wherein the Supreme Court held that the Chief Controller of Defence Accounts (Pension) has no jurisdiction to override or reassess the opinion of the Medical Board regarding the percentage of disability for grant of disability pension. Unless a higher or review medical board is constituted under the relevant rules, the ...

Disability Pension, PCDA(P) Can't Overrule Medical Board Findings: J&K HC

Namdev Singh

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