T.A. No. 87 of 2009 and W.P. No. 19660 of 2003. Case: C. Kondaiah, (Ex-Serviceman) S/o. Late Kondaiah Vs The Union of India (UOI), Secretary to the Defence, Ministry of Defence and Ors.. Armed Forces Tribunal
| Case Number | T.A. No. 87 of 2009 and W.P. No. 19660 of 2003 |
| Counsel | For Appellant: G. Venkatanarayana, Adv. and For Respondents: K. Ravindranath, SCGSC and Sandeep Kumar, Adv. |
| Judges | A.C. Arumugaperumal Adityan, J. (J) and S. Pattabhiraman (A), Members |
| Issue | Armed Forces Tribunal Act 2007; Army Rules, 1954 - Rule 13(3); Army for Pension Regulations, 1961 - Regulation 173 and 186 |
| Judgement Date | April 15, 2010 |
| Court | Armed Forces Tribunal |
Order:
A.C. Arumugaperumal Adityan, J. (Member (J)), (Regional Bench, Chennai)
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The petitioner originally got an order of disability pension later lost the same due to the opinion of the Re-assessment Medical Board dated 28.04.2003. In furtherance of the impugned order from the Artillery Records, Nasik Road Camp, Maharashtra, dated 23.08.1996, the petitioner has moved the Honourable High Court of Andhra Pradesh by way of filing W.P. No. 7521 of 1997 got a final order dated 26.06.1997, and thereafter filed W.P. No. 19660 of 2003 challenging the impugned order which has been passed after the directions of the Honourable High Court of Andhra Pradesh in W.P. No. 7521 of 1997. After the constitution of the Armed Forces Tribunal, Regional Bench, Chennai, in pursuance of the enactment of Armed Forces Tribunal Act 2007, the said W.P. No. 19660 of 2003 has been transferred to this Tribunal and renumbered as T.A. No. 87 of 2009.
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The short facts of the case of the petitioner in the affidavit to the petition relevant for deciding this petition are as follows:
2(a) The petitioner was discharged from service prematuredly on Medical invalidation with effect from 02.11.1972 since the petitioner's medical category was down graded to lower medical category CEE permanent. At the time of the petitioner's joining in the Indian Army, the petitioner was placed under the Medical category AYE, but due to the service conditions, the petitioner had suffered a disease called PUL MONARY TUBERCULOSIS. A Medical Board was convened by the Army authorities to assess the petitioner's medical category, which had down graded the petitioner to the lower medical category CEE and recommended for his premature discharge from the Army Service on medical invalidation. Accordingly, the petitioner was discharged from service with effect from 02.11.1972. The Medical Board has also opined that the disease under which the petitioner was suffering is attributable to the Army Service and hence, he was recommended for grant of disability pension.
2(b) The fourth respondent has forwarded the petitioner's disability pension claim to the Pension Sanctioning Authority ie., the second respondent along with the service element of pension. The second respondent in turn had granted disability pension to the petitioner initially from 02.11.1972 to 16.12.1986. The fourth respondent had directed the petitioner to appear before the Re-survey Medical Board held in the year 1987, which has opined that the petitioner was suffering from the said disease. The fourth respondent has intimated the petitioner vide letter No. 1277341/T-III/DP-13108/Pen-5, dated 23.04.1987 that the second respondent has directed to continue the petitioner's disability pension from 17.12.1986. The fourth respondent has once again directed the petitioner to appear before the third respondent for Re-survey Medical Board in August 1986. The fourth respondent has forwarded all the service records of the petitioner along with the medical board proceedings to the second respondent vide letter No. 1277341/T-II/DP- 13 108/Pen-5, dated 23.09.1996 for authorization of continuation of his disability pension.
2(c) The fourth respondent by letter No. 1277341/T-III/DP/43657/Pen-5, dated 15.03.1997, intimated the petitioner that the second respondent vide letter No. G3/RA/10/96/13 152/I, dated 13.02.1997, discontinued the petitioner's disability pension with retrospective effect from 30.10.1996 on the ground that his disability was reassessed at less than 20% ie., from 6% to 10%. Aggrieved by the said order dated 13.02.1997 discontinuing the petitioner's disability pension retrospective effect from 30.10.1996 after 24 years, the petitioner had filed W.P. No. 7521 of 1997 before the Honourable High Court of Andhra Pradesh. The Honourable High Court of Andhra Pradesh by order dated 24.04.1997 was pleased to suspend the order dated 15.03.1997 initially for a period of ten weeks. On behalf of the respondents, a counter affidavit was filed in W.P. No. 7521 of 1997 and sought for setting aside the said interim order. The Honourable High Court of Andhra Pradesh by order dated 26.06.1997 was pleased to make the interim order absolute with the following observation_
Having regard to the fact the disability pension that was being paid to the petitioner was only at the rate of Rs. 40/- per month and that the period of five years has elapsed during the pendency of the Writ Petition no further orders need to be passed in this Writ Petition.
In the mean time, the Government have decided that once the disability pension is granted, it shall be for life and no Re-survey of the disability is required. By order dated 26.06.2002, the W.P. No. 7521 of 1997 was disposed off by the Honourable High Court of Andhra Pradesh.
2(d) The fourth respondent has directed the petitioner to appear before the Re-survey Medical Board in the Military Hospital, Secunderabad. The Petitioner appeared before the Re-survey Medical Board at M.H. Secunderabad. The Re-survey Medical Board at M.H. Secunderabad have examined the petitioner and submitted its report. The fourth respondent by impugned letter No...
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