K.K. Vasudeva Kurup v Union of India and Director General of Assam Rifles

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **TUESDAY, THE 21ST DAY OF JUNE 2016 / 31ST JYAISHTA, 1938** **WP(C).No. 37758 of 2007** ## **PETITIONER/S:** **K.K.VASUDEVA KURUP EX.NO.132474 RFN/SIG, KUNNATHAYATHUTHEKKETHIL, PANNIVIZHA, ANANDAPPALLY P.O., ADOOR,KOLLAM DIST. BY ADV. SRI.K.SASIKUMAR** ## **RESPONDENT/S:** **1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI. 2 DIRECTOR GENERAL OF ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES, SHILLONG. BY ADVS. SRI. N. NAGARESH, ASGI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.06.2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 37758 of 2007** **2** ## **JUDGMENT** The point of polemics that crops up for consideration is whether disability pension could be granted to a person who served in the frontiers or in difficult areas as a Rifleman could be denied disability pension solely on the ground that the disease from which he is afflicted, is not included in the schedule I-A of the Extra Ordinary Pension Rules to the Central Civil Services [ CCS (EOP) Rules ]. Before adverting to the said question it is apposite to consider objection raised by the respondents on the maintainability of this writ petition on the ground of territorial jurisdiction as also limitation. The learned counsel appearing for the petitioner submitted that in the light of a Division Bench judgment of this Court in **Selvin Abraham v. Punjab & Sind Bank reported in 2013 (3) KLT 481,** the objection regarding the lack of territorial jurisdiction cannot be sustained. True that in the decision by the learned single judge in Rajesh's case (Supra) it was held that only a material/essential or integral part of the cause of action occurred within the jurisdiction of this Court then only it could confer the territorial jurisdiction on this Court. On carefully scanning the decision of the Division Bench in Selvin Abraham's case (Supra) I **WP(C).No. 37758 of 2007** **3** have no hesitation to hold that the factual situation obtained in this case and the factual situation obtained in Selvin' Abraham's case are similar and therefore the decision in Selvin' Abraham's case is applicable in this case. It is a fact that in this case after getting discharge from service the petitioner applied for disability pension while residing in Kerala. The respondents passed an order and the same was communicated to the petitioner in his address at Kerala. True that he had served Assam Rifles in Shillong and he was discharged from service while serving there. But at the same time, in the light of the decision of the Selvin' Abraham's case, I am of the view that the contention raised in the light of the decision in Rajesh's case (Supra) cannot be upheld. In short, I am of the view that this Court has jurisdiction to deal with the issues involved in this case. Regarding the question of limitation, it is to be noted that the respondents raised that question relying on Ext.P5 and Anx. R5. It is to be noted that Anx.R5 did not contain any reason at all. Indeed, it is only a communication to the petitioner regarding the out come of the decision on his application for disability pension by the authorities. It is to be noted that a copy of Anx.R4 was not at all communicated or was not marked to the petitioner. It is also relevant to note that in this case, on being aggrieved by Ext.P5 the petitioner preferred Ext.P6 and the first **WP(C).No. 37758 of 2007** **4** respondent did not consider the same. Though the petitioner specifically stated that Ext.P6 representation was submitted to the first respondent, the first respondent had not refuted the factum of its receipt. When an authority received a representation and when that authority is competent to consider the same, the delaying the matter of consideration by that authority cannot be a reason for defeating the right of the person who sought for relief. In this context it is to be noted that disuse of power is more contemptuous than abuse or misuse of power. Hence, I do not find any reason to uphold the objection regarding the maintainability. Now, I will consider the aforementioned question. This question arises for consideration in the following factual back ground :- The petitioner was enlisted into Assam Rifles as a Rifleman on 6.12.1966. After rendering about more than 14 years of service, he was discharged from his service on medical ground with effect from 4.2.1981. On his retirement, he appeared before the Medical Board held at Shillong on 10.3.1981 and his disability was assessed as 60% with diagnosis 'ISCHAEMIC HEART DISEASE AND BRONCHIAL ASTHAMA'. Subsequent his discharge from service, he was granted with invalid pension @ Rs.81/- per month and relief in pension with effect from 5.2.1981 in terms of Rule 38 of CCS (Pension) Rules 1972. Vide letter dated 6.7.1981, as per **WP(C).No. 37758 of 2007 5** Annexure-R4, which is evidently a communication from the Accounts Officer, Assam Rifles, Ministry of Home Affairs to the Director General, Assam Rifles, Shillong, he was informed that his case would not fall within the meaning of the term disease as per Rule 3(4) of CCS (EOP) Rules and as such disability pension is inadmissible. Later, as per Annexure-R5 dated 5.1.1982 the petitioner was informed that the Accounts Officer (Assam Rifles) opined that his claim for disability pension could not be entertained as the disease from which he was suffering would not fall within the provisions of CCS(EOP) Rules. Feeling aggrieved by the denial of disability pension, the petitioner took up the matter before the 2[nd] respondent through Ext.P4. The 2[nd] respondent rejected the claim for disability pension as per Ext.P5 dated 22.7.2005. A perusal of the same would reveal that the reason assigned in Annexure-R4 has been restated therein. Thereupon, the petitioner filed Ext.P6 representation before the first respondent. Evidently, the petitioner moved the first respondent on being aggrieved by the refusal to grant him disability pension as per Ext.P5. Ext.P6 representation dated 5.9.2005 gathered dust. No action whatsoever was taken thereon, despite the fact that it was a claim for disability pension from a person who served at Assam Rifles, for about 1½ decade. It is in the said circumstances that the petitioner **WP(C).No. 37758 of 2007 6** ## was constrained to approach this Court by filing the captioned writ petition with the following prayers: “i. to call for the records leading to the issue of Ext.P5 order passed by the 2[nd] respondent and quash the same by the issue of a writ in the nature of certiorari. ii. To declare that the petitioner is entitled to disability Pension as per the provisions under Central Civil Services (Extraordinary Pension) Rules. Iii. To issue a writ in the nature of mandamus directing respondents to pay disability pension with arrears to the petitioner within a time to be fixed by this Hon'ble Court.” 2. A counter affidavit has been filed in this writ petition on behalf of the respondents. A bare perusal of the counter affidavit would reveal that it is nothing but an extension of the grounds assigned by the respondents to reject the claim of the petitioner under Ext.P5 and Annexures-R4 and R5. The sum and substance of the objections of the respondents in the matter of grant of disability pension to the petitioner is that the disability of the disease which was assigned as the reason for discharging him from service, does not fall under the definition of disease under the Schedule I-A appended to the Pension Rules. In fact, it is stated that it is not one among the diseases in Schedule I-A. 3. I have heard the learned counsel for the petitioner and also the learned Assistant Solicitor General appearing for the respondents. Virtually, both sides reiterated their contentions as revealed from their respective pleadings. The counsel for the petitioner contends that the petitioner is entitled to get disability pension. The learned counsel for the respondents contended that **WP(C).No. 37758 of 2007** **7** the petitioner is not entitled to get disability pension, owing to the reasons specifically mentioned in the counter affidavit as also in the orders rejecting his claim for disability pension. In the light of the rival contentions taken up in their respective pleadings and the contentions advanced by the learned counsel before me, the point to be considered is whether the diseases, which were assigned as a reason for discharging the petitioner from the service of Assam Rifles, in fact two such diseases, are included in the schedule. The learned counsel for the petitioner submitted that even if the answer to the said question is in the negative, still the respondents could not be justified in declining to grant disability pension in the light of a decision of this Court in **Vijoy v. Director General, B.S.F reported in 2005(4) KLT 919.** In the said decision, this Court held that even if a particular disease is not included in the schedule and if the disease has caused disability to a serving personnel owing to reasons attributable to such service, he would be entitled to disability pension. 4. With respect to the reasons for his discharge from service there is absolutely no dispute. As is evident from paragraph 8 of the counter affidavit his disability was assessed as 60% for diagnosis 'ISCHAEMIC HEART DISEASE AND BRONCHIAL ASTHAMA'. No doubt, if the disability of a serving **WP(C).No. 37758 of 2007** **8** personnel is assessed as 60%, such person is bound to be discharged from service. Therefore, the short question is whether the aforementioned diseases which were assigned as a reason for his discharge from service are included in Schedule I-A or whether based on such diseases he could be granted disability pension. Essentially, the question to be considered is whether the diseases sufferance of which is assigned as reason for discharging from service could be attributed to the service. In the context of this said contentions, it is relevant to refer the provisions under CCS (EOP) Rules. The guidelines for conceding attributability of disablement or death to Government service, given in clauses 5(d) (i) and (ii) of the CCS (EOP) Rules are relevant for the purposes. They read thus: ## **“i. Common diseases known to be affected by exposure to weather** Diseases such as Bronchitis, Rheumatism and Nephritis - indeed most diseases of the respiratory system, joints and kidneys - are affected by climatic conditions. The period and the conditions of service at any particular place should be taken into account in determining causal connection with service. **ii. Common diseases known to be affected by stress and strain** This should be decided with due reference to the nature of the duties which the individual has had to perform in Government service. It may be that in some cases the individual had been engaged on sedentary duties, when they will normally not qualify.” 5. Paragraph 5(d)(i) and also Schedule I-A under the ## caption **'classification of diseases which can be contracted by** **service'** and under the sub caption- **A- as Diseases affected by climatic conditions** , Bronchitis is included at Sl.No.(v) and Heart **WP(C).No. 37758 of 2007 9** stroke is included at Sl.No.(xvi). It is also relevant to note that certain other heart diseases are also included under the sub caption **B-as Diseases affected by stress and strain** like Pericarditis and adherent pericardium (viii) and Endo-carditis (ix). 6. True that the disease 'Bronchial Asthama' is not specifically included under the Schedule and the disease which is included thereunder is Bronchitis. It is an acute or chronic inflammation of the mucous membranes of the tracheobronchial tree. Regarding the other disease that afflicted the petitioner, viz., 'Ischaemic heart disease' evidently, several types of heart diseases have been included, under the Schedule. Even otherwise para 5(d) (2) of the CCS (EOP) Rules would reveal the basis for including diseases in the Schedule. It is evident from that the question whether a common disease is affected by stress and strain has to be decided with reference to the nature of the duties which the individual had to perform in Government service. As noticed herein, admittedly, the petitioner was recruited in Assam Rifles as a Rifleman. There is absolute absence of any whisper in the counter affidavit filed by the respondents that the duties attached to the post of a rifleman is not one capable of giving stress or strain. In that context, it is to be noted that there is conspicuous absence of any endorsement in his service book, so also in the counter **WP(C).No. 37758 of 2007** **10** affidavit that at the time of his recruitment to the post Rifleman he was afflicted by any such diseases. There cannot be any doubt with respect to the question that if he had any such disease at the time of his recruitment, he would have been found medically unfit to be recruited. At any rate, those diseases are certainly attributable and aggravated by the conditions of service in Assam Rifles. While passing Ext.P5 order the question whether diseases which formed the basis for his discharge from service were attributable and aggravated by the conditions of services of Assam Rifles were not pointedly considered. In the light of the decision in Vijoy's case (Supra) even if a particular disease is not included in the schedule that by itself would not and could not disentitle the person concerned from getting disability pension if the decease that had caused the disability is attributable to the service concerned. Here, the petitioner was serving Assam Rifles and the personnel of it are mainly assigned duties concerned with security of the border areas besides resistance of insurgency movements, militant and extremist attacks. How can it be said in such circumstances coupled with the climatic and environmental conditions under which they were to perform such duties that they were not capable of exerting stress and strain on the personnel? When personnel who served the nation by rendering service in Assam Rifles etc., on **WP(C).No. 37758 of 2007** **11** their discharge from service, I am of the view that the endevour is not to deny them disability pension raising one or other reason whereas the endeavor is to see whether the disease that led to discharge is attributable or aggravated by the condition of such service. In such circumstances, the reasoning in Ext.P5 and Anxs.R4 and R5 cannot be sustained. That apart, it is to be noted that Anx.R4 was not actually communicated to the petitioner. In fact, it is only an intradepartmental communication from the Accounts Officer to the 2[nd] respondent and the petitioner was only served with the ultimate decision taken by the authorities under Anx.R5 which is virtually devoid of the reason for rejecting his application. When once it is found that the reason for rejection is culpably unsustainable taking into account diseases, the sufferance of which led to discharge from services and the nature of duties and liabilities to be performed by a personnel in the Assam Rifles it cannot be urged that the aforesaid diseases had not contracted or aggravated by service. In short in the light of the discussion as above, the petitioner has to succeed in this writ petition and consequently, this writ petition is allowed and Ext.P5 is set aside. Consequently, it is declared that the petitioner is entitled to get disability pension. The respondents are therefore directed to grant disability pension to the petitioner under the provisions of **WP(C).No. 37758 of 2007 12** CCS(EOP) Rules along with arrears. This shall be done as expeditiously as possible after complying with formalities required therefor. sd/- **C.T.RAVIKUMAR** **JUDGE** sab **WP(C).No. 37758 of 2007** **13** ## APPENDIX PETITIONERS EXHIBITS : P1: A TRUE COPY OF THE DISCHARGE CERTIFICATE ISSUED TO THE PETITIONER. P2: A TRUE COPY OF THE LETTER DATED 16.5.1981 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER P3: A TRUE COPY OF THE LETTER DATED 16.5.1981 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER'S BANK FORWARDING THE CHEQUE P4: A TRUE COPY OF THE REPRESENTATION DATED 18.4.2005 FORWARDED BY THE PETITIONER BEFORE THE 2ND RESPONDENT P5: A TRUE COPY OF THE LETTER DATED 22.7.2005 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P6: A TRUE COPY OF THE REPRESENTATION DATED 5.9.2005 FORWARDED BY THE PETITIONER TO THE 1ST RESPONDENT