Manvir Singh v. Union of India & Ors.

16. We have carefully considered the submissions made on behalf of the parties and perused the record. To begin with, it may be beneficial for this Court to note the decision in the case titled Rushibhai Jagdishbhai Pathak v. Municipal Corpn., Bhavnagar 2022 SCC OnLine SC 641, wherein the Supreme Court considered the doctrine of “delay and laches” and “law of limitation” with respect to Service Law and held as under: “10.... At the same time, the law recognises a „continuing‟ cause of action which may give rise to a „recurring‟ cause of action as in the case of salary or pension...”

17. In this context, we may also refer to the decision of the Supreme Court in Tarsem Singh (supra), wherein it was observed that if an issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay, as it does not affect the rights of the third party.

18. Undoubtedly, it is trite law that delay and laches are relevant factors for exercise of equitable jurisdiction, however, in view of the principle of law enunciated in the aforementioned decisions by the Supreme Court, we do not find merit in the objection raised by the respondents that the petition suffers from delay and laches.

19. Now adverting to the next issue pointed out by the respondents regarding the lack of territorial jurisdiction of this Court, the learned counsel for the petitioner contends that as far as the territorial jurisdiction is concerned, since a part of the cause of action has arisen within the jurisdiction of this Court and he, having addressed his representation to respondent no.2, this Court would have the necessary jurisdiction to entertain the petition.

20. Having considered the submissions of the learned counsels for the parties to this effect, we are of the view that, taking into account the fact that the petitioner made a representation to the respondent no.2, it cannot be said that no part of cause of action has arisen before this Court as the Headquarter of the respondent no.2 is situated in Delhi. Even otherwise, the petition has remained pending for more than 8 years before this Court, and therefore, it will be highly unjust to reject the same at this stage on the ground of lack of territorial jurisdiction. We, therefore, find no reason to reject the present petition on the ground of territorial jurisdiction.

21. In addition to the aforementioned objections, the main challenge of the respondents in seeking the dismissal of the petition is that the claim of the petitioner for disability element of pension is not maintainable as his disability was neither attributable to nor aggravated by the service rendered by him in the BSF. The learned counsel for the respondents submits that a mere manifestation of a disease during Service does not necessarily make it attributable to Service.

22. At this stage, it is relevant to note the observations made by the respondents in the Impugned Order, which is reproduced herein under:- “OFFICE OF THE COMMANDANT, 192 BATTALION BORDER SECURITY FORCE:: SRIGANGANAGAR(RAJASTHAN) No. Estt-45/M.B/192Bn/2011/6363-85 Dated, the ___ Dec‟ 2011 /// ORDER /// Whereas, No.902548321 Constable(GD) Manbir Singh 'G' Coy of this unit was under medical category S5H1A1P1E[1] as well as 65% disability. As per medical Board proceedings held at 146 Battalion BSF, Udaipur (Rajasthan) on 23/02/2011, the individual is suffering from "BIPOLAR AFFECTIVE DISORDER" and is considered unfit for further service in Border security Force under Rule- 25 of BSF Rule-1969 and;

2. Whereas, No.902548321 Constable (GD) Manbir Singh 'G' Coy of this unit was given an opportunity vide this office L/No.9157-59 dated 9th July'2011 to submit his representation if any against the opinion of Medical Board for his unfitness subsequently he represented against the opinion of Medical Board for re-categorization vide his application 18/07/2011 which was forwarded to SHQ BSF Sriganganagar vide this office L/No.4727 dated 13th Aug‟2011 and SHQ BSF Sriganganagar further forwarded to FTR HQ BSF Rajasthan vide their L/No.3976-77 dated 30th Aug‟2011 & L/No.9673-74 dtd 28th Sept‟ 2011.

3. Whereas, the review Medical Board was held on 16/11/2011 at CH Hospital, Jodhpur(Rajasthan) and reexamined No.902548321 Constable(GD) Manbir Singh 'G' Coy of this unit, is of the opinion that he is suffering from "BIPOLAR AFFECTIVE DISORDER" and considered him unfit for further service in BSF.

4. Whereas, I being the Head of Office, agreed with the findings of the medical board and satisfied that his further retention in the BSF is undesirable. I therefore, retire him from the service w.e.f 31st Dec'2011(AN) with pensionary benefits as admissible under Rule-25 of BSF Rule-1969.

5. The dues outstanding if any, against him be recovered from the dues payable to him and he will be struck off the strength of this Unit from w.e.f. 31st Dec'2011(AN). Sd- COMMANDANT 192 BN BSF Dec‟ 2011”

23. From the above Order passed by the respondents, it is evident that the Competent Authority ordered for the retirement of the petitioner from service, while conceding to the findings of the Medical Board and being satisfied that his retention in the service was undesirable. However, the Commandant did not consider the issue, whether the low medical condition of the petitioner was attributable to or aggravated due to his service condition or not.

24. Needless to say, the Medical Board is an expert body and its opinion is required to be given value and credence, specifically when such opinion is not under challenge. However, in the present case, the Medical Board has not given any finding regarding the causal effect of the petitioner‟s disability with his service but has merely observed that on account of his disability, he is „Unfit' to be retained in the Force service.

25. In such circumstances, it thus becomes imperative to examine the medical record of the petitioner. From perusal of the record, we find that both the parties are ad idem that the petitioner is suffering from „Bipolar Affective Disorder‟ from 2004 and was placed under medical category S5H1A1P1E[1], with 65% disability. It is not disputed that at the time of enrolment of petitioner in the BSF, he was subjected to thorough physical test and other medical examinations, however, no ailment was diagnosed at that stage. Moreover, the petitioner was placed under strenuous training after his enrolment, and during the said period also, he did not exhibit any signs of the ailment.

26. This Court notes that the petitioner was regularly examined by the Medical Board at different intervals and has been placed under different medical categories. The categorisation of Medical Examination of the petitioner is detailed hereinbelow:- “Categorisation: i) CEE (T) for six month w.e.f. 20.01.2001 by Medical Board ii) S3(T-48) H1A1P1E[1] w.e.f. 02.08.2002 by Medical Board iii) S2(P)H1A1P1E[1] w.e.f. 03.11.2004 by Medical Board iv) S3(T-24)H1A1P1E[1] w.e.f. 30.12.2006 by Medical board. v) S5H1A1P1E[1] w.e.f. 27.08.08 by Medical Board vi) S3(T-48)H1A1PIE[1] w.e.f. 07.03.2009 by Medical Board.”

27. It is further not disputed that on 19.05.2014, the petitioner was found fit to resume his duty, after having undergone treatment for anxiety disorder with effect from 18.10.2013 to 19.05.2014 by the Chhatrapati Shivaji Subharti Hospital, Meerut, U.P, upon completion of his treatment.

28. However, the petitioner was boarded out on medical grounds in medical category S5H1A1P1E[1] with 65% disability, as opined by the Review Medical Board. This Court notes that, on 16.11.2011, the Review Medical Board opined that the petitioner has developed the disability, that is, „Bipolar Affective Disorder‟ under circumstances over which he had no control. Undoubtedly, the Board had opined that the disability was not directly attributable to service condition of the petitioner and was further not aggravated by it. However, the finding of the Medical Board that the petitioner did not have a past history and the fact that nothing significant was found in his family history, could not have been brushed aside by the Board while recording its final opinion. Moreso, the Board should have also made an endeavour to find out the cause for the disease specifically when it was convinced that the petitioner developed the disease but over the circumstances, he had no control. It was, therefore, for the respondents to establish that there was no causal effect with the disability and service condition of the petitioner but it failed to provide any reason for declaring the case of the petitioner as neither attributable nor aggravated by his service condition.

29. The Board also observed that the petitioner was married having three healthy children, however, his elder brother committed suicide in

1997.

30. We may refer to the opinion rendered by the Medical Board as well as the Review Medical Board, which is being re-produced herein under: The finding of the Review Medical Board is as follows:

31. To examine the position of law, we may refer to the Rule 9 and 14 of the Entitlement Rules, which read as under:

did not determine or contribute to the onset of the disease but influenced the subsequent courses of the disease will fail for acceptance on the basis of aggravation. (b) A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service, if no note of it was made at the time of the individual‟s acceptance for military service. However, if medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service.

(c) If a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. (emphasis supplied).”

32. A bare reading of the aforesaid provisions makes it clear that it is not for the petitioner to prove his entitlement and the benefit of reasonable doubt is to be given liberally to the petitioner.

33. In this regard, it may be relevant to note the observations of the Supreme Court in Dharamvir Singh v. Union of India & Ors., (2013) 7 SCC 316 wherein it was held as under:-

29.6. If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and that disease will not be deemed to have arisen during service, the Medical Board is required to state the reasons [Rule 14(b)]; and

29.7. It is mandatory for the Medical Board to follow the guidelines laid down in Chapter II of the Guide to Medical Officers (Military Pensions), 2002 — “Entitlement: General Principles”, including Paras 7, 8 and 9 as referred to above (para 27).”

34. The learned counsel for the petitioner submits that as per Schedule 1-A of Central Civil Services (Extraordinary Pension) Rules, 1939 [in short, „CCS (EOP) Rules‟] which lays down a list and classification of diseases which can be contracted/developed during the service, as also the list of diseases that are not affected by service. The list of diseases, which can be contracted during service apart from other diseases also include „Psychosis and Psychoneurosis‟. The petitioner in the instant case is suffering from „Bipolar Affective Disorder‟, which per se is not included in the list of diseases.

35. In this regard, it is relevant to note the findings of a Division Bench of the Calcutta High Court in Union of India v. Rajat Kumar Ghosh, 2012 SCC OnLine Cal 6967, which discusses the various disorders that would fall under the ambit of “Psychosis” under Schedule 1-A of the CCS (EOP) Rules. The relevant extract is reproduced herein below:-

can be contracted by the service holder wherein under clause „B‟ different diseases affected by stress and strain, are mentioned. xxxx

21. xxxx Psychiatric disorders Primary psychiatric causes of psychosis include the following: [10] [11] [12] • schizophrenia and schizophreniform disorder • affective (mood) disorders, including severe depression, and severe depression or mania in bipolar disorder (manic depression). People experiencing a psychotic episode in the context of depression may experience persecutory or self-blaming delusions or hallucinations, while people experiencing a psychotic episode in the context of mania may form grandiose delusions. • schizoaffective disorder, involving symptoms of both schizophrenia and mood disorders • brief psychotic disorder, or acute/transient psychotic disorder • delusional disorder (persistent delusional disorder) • chronic hallucinatory psychosis. (Underline is of mine) History The word psychosis was introduced to the psychiatric literature in 1841 by Karl Friedrich Canstatt in his work Handbuch der Medizinischen Klinik. He used it as a short-hand for „psychic neurosis‟. At that time neurosis meant any disease of the nervous system, and Canstatt was thus referring to what was thought to be a psychological manifestation of brain disease. [80] Ernst von Feuchtersleben is also widely credited as introducing the term in 1845, [81] as an alternative to insanity and mania. The division of the major psychoses into manic depressive illness (now called bipolar disorder) and dementia praecox (now called schizophrenia) was made by Emil Kraepelin, who attempted to create a synthesis of the various mental disorders identified by 19th century psychiatrists, by grouping diseases together based on classification of common symptoms. psychosis Pronunciation: noun (plural psychoses) a severe mental disorder in which thought and emotions are so impaired that contact is lost with external reality: they were suffering from a psychosis [mass noun]: the symptoms of psychosis”

36. It is relevant to note that the facts of the present case squarely fall within the ambit of the facts of the case titled Mohan Lal (supra). The same reads as under:-

11. In our view reliance placed by learned counsel for the respondents on Schedule - IA of the Central Civil Services (Extraordinary Pension) Rules, 1939, which lays down a list and classification of diseases which can be contracted during the service as also a list of those diseases that are not normally affected by service, including diseases relating to eyes, would not be of any assistance to the respondents in light of the admitted position that the Medical Board had neither specified the nature of the eye ailment from which the petitioner was suffering at the time of his invalidation nor did the Board gave any opinion regarding its attributability to or aggravation on account of service conditions.

12. In view of the admitted position that the eye ailment on account of which the petitioner had been invalidated had arisen during the course of his service and in the absence of any reasons given by the Medical Board regarding the attributability or aggravation of the petitioner's disability, following the ratio of the decision in the case of Dharamvir Singh (supra), we have no hesitation in holding that the petitioner's disability has to be treated as a result of his service conditions.

37. In view of the above, the „Bipolar Affective Disorder‟ is liable to be covered under „Psychosis‟ as per Schedule 1-A.

38. In light of the above, the disability of the petitioner had arisen during the course of his service and in the absence of any reasons recorded by the Medical Board regarding the attributability or aggravation of the petitioner‟s disability, we have no hesitation in holding that the disability has to be treated as a result of his service conditions.

39. As far as the decision in Neeraj Kumar Singh (supra) is concerned, it is distinguishable on its own facts as the Medical Board in the said case had opined that the disability was aggravated due to service condition.

40. Regarding broadbanding benefits, we find that the Supreme Court in the case of Union of India and Others v. Ram Avtar, 2014 SCC OnLine SC 1761, while dealing with the rounding off benefit of the Disability Pension, allowed the petition and directed that the benefit to be extended to the retired Armed Forces personnel, who had developed disability attributable to or aggravated by military service after superannuation or tenure completion.

41. We also find that Government of India vide its letter No.

F. NO. 3(11)2010-D (Pen/Legal) Pt V, Min of Defence dated 18.04.2010 has issued instructions for implementation of the Supreme Court Order dated 10.12.2024.

42. Having considered the above, we direct the respondents to grant disability pension to the petitioner by taking his disability at 65% rounded off to 75%, and, accordingly, release pensionary benefits to him within a period of two months from the date of this order.

43. The petition, along with pending application, if any, is allowed in the aforesaid terms.

SHALINDER KAUR, J NAVIN CHAWLA, J DECEMBER 2, 2024 SU/F/as Click here to check corrigendum, if any