Service matter - Section 59 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995= Bharat Sanchar Nigam Limited and another …. Appellants Versus G. Sarvothaman …. Respondent = published in judis.nic.in/supremecourt/filename=40851

  Service matter - Section  59   of   the   Persons   with   Disabilities   (Equal
 Opportunities, Protection of Rights and Full Participation) Act,  1995 the powers of chief commissioner =

whether  the
      Chief Commissioner has got  the  powers  to  order  regularization  of
      promotion and identification of eligible posts  in  a  cadre,  in  the
      Department of erstwhile Telecommunications,  while  exercising  powers
      under  Section  59   of   the   Persons   with   Disabilities   (Equal
      Opportunities, Protection of Rights and Full Participation) Act,  1995
      (for short ‘the Act of 1995).  =

  the Chief Commissioner has
      no power under Section 59 of the Act of 1995 to direct  the  inclusion
      of TOA cadre in the  list  of  identified  posts  and  then  to  order
      preparation of reservation register for physically handicapped persons
      and to consider the claim of the respondent for  promotion  under  the
      reserved vacancies for the various Grades under TOA.


      12.   The Chief Commissioner under Section 59 of the Act of  1995  has
      got only the power to examine the matters relating to “deprivation  of
      rights” of persons  with  disabilities.   
The  Commissioner  can  only
      examine whether the persons with disabilities have  been  deprived  of
      any “rights” for which the Commissioner has to first  examine  whether
      the complainant has any “rights” under  the  laws.  
 The  Commissioner
      cannot confer or create any right for the Appellants.  
The  respondent
      could not establish that any right has been conferred on him and  such
      right has been denied to him by the Department.  The Respondent wanted
      conferment of a  right  which  was  extended  only  to  specific  five
      categories of posts on the  basis  of  the  report  of  a  High  Power
      Committee.  
The Chief Commissioner has no power to direct inclusion of
      one more category among the identified categories  and  to  grant  the
      benefit. 
 Under Section 59(b) the Chief Commissioner has got the power
      to look into the complaints with respect to the  matters  relating  to
      non-implementation of laws, rules,  bye-laws,  regulations,  executive
      orders, guidelines or instructions made or issued by  the  appropriate
      Government and the local authorities for the welfare and protection of
      rights or persons with disabilities.  
 It  is  not  the  case  of  the
      respondent that the Department has  failed  to  implement  either  any
      laws, rules  or  regulations.   
The  Respondent  prayed  for  positive
      direction, claiming certain rights, which had not  been  conferred  on
      him either by any law,   regulations  or  orders.   
Consequently,  the
      directions given by the Chief Commissioner for the  inclusion  of  TOA
      cadre among the identified categories  cannot  be  sustained  and  the
      Commissioner  while  passing  such  order  has  exceeded  the   powers
      conferred on him under Section 59 of the Act of 1995.


      13.   We, for the reasons mentioned above, allow this appeal  and  set
      aside the order of the Chief Commissioner, as confirmed  by  the  High
      Court.  There shall be no order as to costs.

                                                              REPORTABLE




                        IN THE SUPREME COURT OF INDIA


                        CIVIL APPELLATE JURISIDCITION

                        CIVIL APPEAL NO. 8947 OF 2013
              ((Arising out of S.L.P. (Civil) No.24120 of 2007)




      Bharat Sanchar Nigam
      Limited  and another                               …. Appellants


                                   Versus


      G. Sarvothaman                               …. Respondent




                               J U D G M E N T




      K.S. Radhakrishnan, J.




            Leave granted.


      2.    We are in this case concerned  with  the  question  whether  the
      Chief Commissioner has got  the  powers  to  order  regularization  of
      promotion and identification of eligible posts  in  a  cadre,  in  the
      Department of erstwhile Telecommunications,  while  exercising  powers
      under  Section  59   of   the   Persons   with   Disabilities   (Equal
      Opportunities, Protection of Rights and Full Participation) Act,  1995
      (for short ‘the Act of 1995).


      3.    The Respondent  was appointed  as  a  Lower  Division  Clerk  on
      compassionate  ground  in  relaxation  of  normal  recruitment  rules,
      including upper  age  limit  and  typing  test,  in  the  Post  Master
      General’s Office Trivandrum on 23.01.1973 in the PMT Department, which
      was later bifurcated into Departments of Posts and Telecommunications.
        The  Respondent   then  opted  for  Telecommunications   Department.
      Nomenclature  of  posts  of  Lower   Division   Clerk/Upper   Division
      Clerk/Office Superintendent  (LDC/UDC/OS  in  short)  was  changed  as
      Telecom Operating  Assistants  in  the  Telecom  Department.   Telecom
      Office Assistant (TOA in short) Grade-I included LDC/UDC/OS,  Grade-II
      included  Section  supervisors,  Grade-III  included  Senior   Section
      Supervisors, Grade-IV included Chief Section Supervisors.   The  above
      categorization was done w.e.f 09.09.1992.  The  Respondent  was  later
      promoted as ad hoc UDC w.e.f. 1977 and was promoted as UDC on  regular
      basis w.e.f. 04.11.1982 on seniority-cum-fitness quota.  Later he  was
      placed as TOA Grade-II (Section Supervisor)  w.e.f.  09.09.1992.   The
      Respondent  was  again  promoted  as  TOA  Grade-III  (Senior  Section
      Supervisor), w.e.f. 01.07.1999.


      4.    The Respondent then applied for promotion under  the  physically
      handicapped  person’s  quota  after   availing   all   facilities   of
      restructured Cadre on the basis  of  the  OM  No.36035/8/89-Estt.(SCT)
      dated 20.11.1989, which was considered and rejected  by  BSNL  on  the
      ground that no relaxation/reservation  in  promotion  was  permissible
      under schemes for physically handicapped persons as  in  the  case  of
      Scheduled Caste/Scheduled Tribe (SC/ST in short) officials.   Further,
      it was also noticed that the respondent’s appointment  was  not  under
      physically handicapped quota.     The  Respondent,  aggrieved  by  the
      rejection order passed by  the  BSNL  filed  a  complaint  before  the
      Commissioner, praying that he should be given promotion to the post of
      Lower  Selection  Grade   (LSG   in   short)   (Section   Supervisors)
      retrospectively w.e.f. 20.11.1989 and to the upgraded  clerical  posts
      of TOA Grade-III (Senior Section Supervisors) and TOA Grade-IV  (Chief
      Section  Supervisors)  w.e.f.  07.02.1996.   The  Chief   Commissioner
      entertained the  complaint  and  registered  case  No.1109/2001  under
      Section 59 of the Act of 1995.  The Commissioner after hearing parties
      and examining  various  contentions  passed  the  following  order  on
      26.12.2002.  The operative portion of the same reads as under:
           “The respondents are, therefore, directed  to  include  the  TOA
           cadre which is required to do clerical work and other such  jobs
           in  the  list  of  identified  jobs  issued  by  Department   of
           Telecommunications vide their letter  No.1-8/2001/AO(SNG)  dated
           18.10.01 to be inconformity with the  list  of  identified  jobs
           published in the Gazette notification  No.178  dated  30.06.2001
           referred to above.  Upon identification  of  the  cadre  for  PH
           persons, the respondents are directed to  prepare  a  100  point
           reservation register  for  PH  persons  as  required  under  the
           existing   instructions   of   Department   of    Personnel    &
           Training/Department of Telecommunications and  to  consider  the
           claim of the complainant for promotion under reserved  vacancies
           for the grade(s) if he becomes eligible as a PH  person  against
           reserved vacancies.”


      5.    BSNL, aggrieved by  the  above-mentioned  order  approached  the
      Kerala High Court by filing Writ Petition No.30816 of 2003  which  was
      dismissed by a learned  Single  Judge  vide  order  dated  19.02.2007,
      ordering that the benefit of LSG cadre be given to the respondent from
      01.03.1992.  Aggrieved by the same, this appeal has been preferred  by
      special leave.


      6.    The Department of Personnel  and  Training  vide  its  OM  dated
      20.11.1989 introduced reservation in favour of physically  handicapped
      persons in posts filled by promotion in (i) within Group ‘D’ (ii) from
      Group ‘D’ to Grup ‘C’ and (iii) within  Group  ‘C’.   Reservation  was
      provided  for  three   categories    of   persons   namely,   visually
      handicapped, hearing handicapped and orthopedically handicapped.   The
      applicability of reservation was, however, limited  to  the  promotion
      being made to those posts that were identified  as  being  capable  of
      being filled/held  by  these  appropriate  categories  of  handicapped
      persons.  On 09.09.1992, a new cadre was created  under  restructuring
      scheme of erstwhile Department of Telecommunications.   A  choice  was
      given to the employees working in the  clerical stream to opt for  the
      new cadre of TOA or to remain in the clerical cadre.  The posts in the
      clerical cadre became redundant as the majority of the  employees  had
      chosen to join the new cadre  due  to  the  difference  in  pay  scale
      advantageous to them.  Names of cadre and pay scales are  given  below
      for ready reference:
|  |Name of The|Pay scale    |Name of cadre   |Pay scale     |
|  |erst-while |(Rupees)     |under TOA       |(Rupees)      |
|  |cadre      |             |pattern w.e.f.  |              |
|  |           |             |09.09.1992      |              |
|1 |LDC        |950-1400     |TOA-GR-1        |975-1660      |
|2 |UDC        |1200-1800    |TOA GR-II       |1400-2300     |
|  |           |             |[SS(O)]         |              |
|3 |LSG        |1400-2300    |TOA GR-III      |1600-2550     |
|  |           |             |[Sr.SS(O)]      |              |
|4 |OS         |1600-2600    |TOA GR-IV (CSS) |1640-2900     |


     7.     An employee who chose to join the new cadre of TOA cannot revert
     back on his own choice for claiming any financial or promotion  benefit
     in both the  cadres  simultaneously.   The  Respondent  had  opted  for
     restructured cadre of TOA.  Consequently, he was placed as TOA-Grade-II
     (Section Supervisor) w.e.f. 09.09.1992  when  restructured  scheme  was
     implemented on 09.09.1992.


     8.      The  Department  of  Telecommunications  formed  a  High  Power
     Committee for identification of posts in group ‘C’  from  ‘D’  for  the
     purpose of 9% reservation  for  physically  handicapped  persons.   The
     Committee identified 5 cadres,  namely,  JTO,  JAO,  Stenographers,  JE
     (Civil) and JE (Electrical), which was circulated for  compliance  vide
     letter No.226-07/96-STN  dated  12.05.1997.    The  Respondent  in  the
     meanwhile was  promoted as TOA  Grade-III  (Senior  Supervisor)  w.e.f.
     01.07.1999.  He  later  applied  for  promotion  under  the  physically
     handicapped quota after availing of all the facilities of  restructured
     cadre.  In fact, he claimed promotion to the  post  of  LSG  (SS)  with
     retrospective effect w.e.f.20.11.1989 and to the upgraded clerical post
     of TOA Grade-III (Sr. SS) and TOA  Grade-IV  (CSS)  w.e.f.  07.02.1996,
     which was rejected by the Department.


     9.     We notice that the promotion in the physically handicapped quota
     was limited to certain categories of posts as identified  by  the  High
     Powered Committee constituted for the purpose of identification of  the
     cadre.  The High Power  Committee  was  constituted  by  the  erstwhile
     Telecommunication  Department  for  identifying  the  post   to   which
     physically handicapped persons could be promoted under  the  physically
     handicapped reservation quota.  The High Power Committee had identified
     five cadres for promotion and they were  JTO,  JAO,  Stenographers,  JE
     (Civil) and JE (Electrical).  The operative  portion  of  the  Circular
     dated 1.5.1997 reads as follows:
           “Now, it has been decided to have a reservation of 1.5% each for
           partially hearing impaired which can be  improved  with  hearing
           aid and for locomotive disability effecting one leg or limb only
           in the vacancies in the  cadre  of  JTO,  JAO,  JE  (Civil),  JE
           (Electrical) and Stenographers for direct recruitment  quota  as
           well as department quota.”


      10.   We notice that the cadre of clerks was not  identified  for  the
      purpose       of   promotion   under   the   physically    handicapped
      reservations.
Since the  respondent  was  a  TOA,  he  could  not  be
      considered for physically handicapped quota in  Sr.  TOA  cadre.   TOA
      cadre was introduced in the circle office w.e.f.  09.09.1992  and  the
      Respondent had opted for TOA pattern with effect from  the  said  date
      and it was with his own  consent.
Consequently,  the  respondent  was
      working as TOA at the relevant time which was not identified  for  the
      purpose of reservation for physically handicapped  persons  and  hence
      his claim for promotion to Grade-IV could not  be  allowed  since  the
      promotion to the Grade was based on seniority in the basic  cadre  and
      in fact there  was  no  reservation  even  for  SC/ST  candidates  for
      promotion to Grade-IV.


      11.   We are of the view that the Chief Commissioner as  well  as  the
      High Court have failed to appreciate that the respondent  was  working
      in a cadre in which there  was  no  reservation  for  promotion  under
      physically handicapped quota.  
Further exclusion of TOA cadre from the
      promotional post of physically handicapped persons is due to a  policy
      decision of the Government of India taken by the  then  Department  of
      Telecommunications. 
 In such circumstances, the Chief Commissioner has
      no power under Section 59 of the Act of 1995 to direct  the  inclusion
      of TOA cadre in the  list  of  identified  posts  and  then  to  order
      preparation of reservation register for physically handicapped persons
      and to consider the claim of the respondent for  promotion  under  the
      reserved vacancies for the various Grades under TOA.


      12.   The Chief Commissioner under Section 59 of the Act of  1995  has
      got only the power to examine the matters relating to “deprivation  of
      rights” of persons  with  disabilities.   
The  Commissioner  can  only
      examine whether the persons with disabilities have  been  deprived  of
      any “rights” for which the Commissioner has to first  examine  whether
      the complainant has any “rights” under  the  laws.  
 The  Commissioner
      cannot confer or create any right for the Appellants.  
The  respondent
      could not establish that any right has been conferred on him and  such
      right has been denied to him by the Department.  The Respondent wanted
      conferment of a  right  which  was  extended  only  to  specific  five
      categories of posts on the  basis  of  the  report  of  a  High  Power
      Committee.  
The Chief Commissioner has no power to direct inclusion of
      one more category among the identified categories  and  to  grant  the
      benefit. 
 Under Section 59(b) the Chief Commissioner has got the power
      to look into the complaints with respect to the  matters  relating  to
      non-implementation of laws, rules,  bye-laws,  regulations,  executive
      orders, guidelines or instructions made or issued by  the  appropriate
      Government and the local authorities for the welfare and protection of
      rights or persons with disabilities.  
 It  is  not  the  case  of  the
      respondent that the Department has  failed  to  implement  either  any
      laws, rules  or  regulations.   
The  Respondent  prayed  for  positive
      direction, claiming certain rights, which had not  been  conferred  on
      him either by any law,   regulations  or  orders.   
Consequently,  the
      directions given by the Chief Commissioner for the  inclusion  of  TOA
      cadre among the identified categories  cannot  be  sustained  and  the
      Commissioner  while  passing  such  order  has  exceeded  the   powers
      conferred on him under Section 59 of the Act of 1995.


      13.   We, for the reasons mentioned above, allow this appeal  and  set
      aside the order of the Chief Commissioner, as confirmed  by  the  High
      Court.  There shall be no order as to costs.






                                                            ………………………………..J.
                                             (K.S. Radhakrishnan)






                                            …..…………………………….J.
                                            (A.K. Sikri)
      New Delhi,
      October 04, 2013.

The Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 Mental disorders - benefits under disability act = whether at the time of discharge from service he was suffering from a disease which made him unfit to continue in service and whether he would be entitled to disability pension.=Although, the Courts are extremely loath to interfere with the opinion of the experts, there is nothing like exclusion of judicial review of the decision taken on the basis of such opinion. What needs to be emphasized is that the opinion of the experts deserves respect and not worship and the Courts and other judicial / quasi-judicial forums entrusted with the task of deciding the disputes relating to premature release / discharge from the Army cannot, in each and every case, refuse to examine the record of the Medical Board for determining whether or not the conclusion reached by it is legally sustainable.= “You have been diagnosed as a case of SCHIZOPHRENIC REACTION and not LUNATIC. As such your request to produce you before a medical board to examine you whether you are Lunatic or free from LUNACY does not arise. Therefore no resurvey medical board can be held in your case.”= His case was considered on 14.11.1977 by the Invaliding Medical Board held at Military Hospital, Meerut and on its recommendations, he was discharged from service. His claim for disability pension was rejected by Principal Controller of Defence Accounts (Pension), Allahabad on the ground that the disease, i.e., Schizophrenic Reaction, which was the cause of his discharge was not attributable to the military service.= Unfortunately, the Tribunal did not even bother to look into the contents of the certificate issued by the Invalidating Medical Board and mechanically observed that it cannot sit in appeal over the opinion of the Medical Board. If the learned members of the Tribunal had taken pains to study the standard medical dictionaries and medical literature like “The Theory and Practice of Psychiatry” by F.C. Redlich and Daniel X. Freedman, and Modi’s Medical Jurisprudence and Toxicology, then they would have definitely found that the observation made by Dr. Lalitha Rao was substantially incompatible with the existing literature on the subject and the conclusion recorded by the Invaliding Medical Board that it was a case of Schizophrenic Reaction was not well founded and required a review in the context of the observation made by Dr. Lalitha Rao herself that with the treatment the appellant had improved. In our considered view, having regard to the peculiar facts of this case, the Tribunal should have ordered constitution of Review Medical Board for re-examination of the appellant. 18. In Controller of Defence Accounts (Pension) v. S. Balachandran Nair (2005) 13 SCC 128 on which reliance has been placed by the Tribunal, this Court referred to Regulations 173 and 423 of the Pension Regulations and held that the definite opinion formed by the Medical Board that the disease suffered by the respondent was constitutional and was not attributable to Military Service was binding and the High Court was not justified in directing payment of disability pension to the respondent. The same view was reiterated in Ministry of Defence v. A.V. Damodaran (2009) 9 SCC 140. However, in neither of those cases, this Court was called upon to consider a situation where the Medical Board had entirely relied upon an inchoate opinion expressed by the Psychiatrist and no effort was made to consider the improvement made in the degree of illness after the treatment. 19. As a corollary to the above discussion, we hold that the impugned order as also orders dated 14.7.2011 and 16.9.2011 passed by the Tribunal are legally unsustainable. In the result, the appeal is allowed. The orders passed by the Tribunal are set aside and the respondents are directed to refer the case to Review Medical Board for reassessing the medical condition of the appellant and find out whether at the time of discharge from service he was suffering from a disease which made him unfit to continue in service and whether he would be entitled to disability pension.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40505
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5922 OF 2012
Veer Pal Singh …Appellant
versus
Secretary, Ministry of Defence …Respondent
J U D G M E N T
G. S. Singhvi, J.
1. This appeal is directed against order dated 19.12.2011 of the Armed
Forces Tribunal, Lucknow Bench (for short, ‘the Tribunal’) dismissing the
application filed by the appellant for grant of leave to file appeal against
orders dated 14.7.2011 and 16.9.2011 passed in Transferred Application
No.1431/2010 and Review Application No.22/2011 respectively.
2. The appellant was enrolled in the Army (Corps of Signals) on
20.6.1972 in Medical Category “AYE”. Before his enrolment, the appellant
1Page 2
was subjected to medical examination, the report (Annexure R-II) of which is
reproduced below:
“PRIMARY MEDICAL EXAMINATION REPORT
1. Service No. 14289930
2. Name VEER PAL SINGH
3. Father’s Name SUKHBIR SINGH
4. Date of birth 01.10.53
5. Appellant Age MA
6. Service/Corps/A
ir Force
SIGNALS
7. Permanent 
address
Village – Dhanor 
Tikkri Teh. & Dist. 
Sardhana, Meerut.
8. Identification 
Marks
1. A mole over middle
of forehead
2. A mole 3 cm from Lt
angle of mouth
9. Relevant family
history
NIL
10. Past medical
history,
Specially of fits.
NIL
11. EYES
a. Distance Vision
without Glass
R-6/9
Without Glass L-6/6
Near Vision
Any evidence of
trachoma or its
Complications
NIL
12. Hearing
a. R Ear 600 cms
L Ear
b. Any evidence of otitls
media
NAD
13. Upper Limbs
and 
(a) Upper Limbs NAD
Locomoter
System 
(b) Locomotion NAD
14. Physical
2Page 3
Developments:
Height: 174 cm
Weight: 54 Kgs.
15. Chest
Measurements
(a) Full expiration 81 cms
(b) Range of expiration 5 cms
16. Urine
(a) Albumen --
(b) Sugar --
(c) Other abnormalities
17. Any evidence of
skin
NIL
Venereal
disease(s)
18. Cardio-vascular
system
(a) Pulse 76 pm
NAD
19. Central Nervous system NAD
20. Abdomen: NAD
21. Liver: NP
22. Spleen: NP
23. Hernia: NIL
24. Teeth:
(a) No dental points 16/16
Healthy
25. Mental capacity and Emotional
Stability
(a) Speech NORMAL
i. Mental backwardness NIL
ii. Emotional Instability NIL
26. Slight Defects not sufficient of cause
Rejection
NIL
27. Found fit in category A (AYE)
PLACE: MEERUT
Date: 22/5/72
Sd/-
[RK Gupta]
Captain AMC
Recruiting Medical
Officer”
3. After completion of training, the appellant was posted in 54 Infantry
3Page 4
Division Signals Regiment and his regular service commenced with effect
from 21.2.1974. After about two years, he was admitted in Military Hospital,
Secunderabad for the treatment of “INTESTINAL-COLIC”. He was
discharged from the hospital on 18.2.1976. Between March, 1976 to
October, 1977 he was treated in different Army Hospitals at Pune,
Secunderabad and Meerut. He was downgraded to Medical Category “CEE”
(Temporary) for a period of six months with effect from 3.1.1977. 
His case
was considered on 14.11.1977 by the Invaliding Medical Board held at Military Hospital, Meerut and on its recommendations, he was discharged from service. 
His claim for disability pension was rejected by Principal
Controller of Defence Accounts (Pension), Allahabad on the ground that the disease, i.e., Schizophrenic Reaction, which was the cause of his discharge was not attributable to the military service.
4. The appellant challenged his discharge from military service and
rejection of his claim for disability pension in Civil Misc. Writ Petition
No.42946/1997 filed before the Allahabad High Court. He prayed that a fresh
Medical Board be constituted to assess his disease and disability. The same
was disposed of by the Allahabad High Court vide order dated 26.3.1998 and
a direction was given to the competent authority to decide the appellant’s
representation. Thereafter, the Government of India, Ministry of Defence
rejected the appellant’s representation vide order dated 16.9.1998, paragraph
9 of which reads thus:
4Page 5
“You have been diagnosed as a case of SCHIZOPHRENIC
REACTION and not LUNATIC. As such your request to
produce you before a medical board to examine you whether you
are Lunatic or free from LUNACY does not arise. Therefore no
resurvey medical board can be held in your case.”
5. The appellant challenged the aforesaid order in Writ Petition
No.40430/1999 and prayed that the respondents be directed to constitute a
Review Medical Board to re-evaluate his disease.
6. The second writ petition filed by the appellant remained pending before
the High Court for 13 years. On the establishment of Lucknow Bench of the
Tribunal under the Armed Forces Tribunal Act, 2007 (for short, ‘the Act’),
the same was transferred to the Tribunal and was registered as Transferred
Application No.1431/2010. 
The Tribunal examined the record of the Medical
Board, referred to the judgment of this Court in Secretary, Ministry of
Defence v. A.V. Damodaran (2009) 9 SCC 140 and dismissed the application
by making the following observations:
“In view of the aforesaid the Medical Board’s opinion is to be
accorded supremacy. We in exercise of our jurisdiction can not
sit over the opinion expressed by the Medical Board which is an
expert body. The disease that the applicant was suffering from
has been found to be constitutional and not aggravated by
military service. We can not hold anything contrary to the
medical opinion.”
7. The review application and the application filed by the appellant for
grant of leave to appeal were dismissed by the Tribunal with a cryptic
observation that the recommendations made by the Medical Board are binding
5Page 6
and the same cannot be subjected to judicial review.
8. The appellant, who appeared in person, referred to report dated
22.5.1972 of the Recruiting Medical Officer as also report dated 14.11.1977
of the Invaliding Medical Board and argued that in the absence of evidence
about his disease, i.e., Schizophrenic Reaction at the time of enrolment, the
opinion of the Psychiatrist, who examined him, could not be relied upon for
recording a finding that his disease is constitutional and is not attributable to
military service. The appellant submitted that mere irritability or quarrelsome
nature cannot lead to an inference that he was suffering from Schizophrenic
Reaction and the Tribunal committed grave error by declining his prayer for
making a reference to the Review Medical Board. He also invited the Court’s
attention to the averments contained in paragraph 5 of the counter affidavit
filed before this Court to show that the disease had developed after entering
the service and argued that it should be treated as directly attributable to the
military service.
9. Learned counsel for the respondent fairly stated that except the opinion
of the Psychiatrist-Major (Mrs.) N. Lalitha Rao, no other evidence is
available to support the opinion of the Medical Board that the appellant was
suffering from Schizophrenic Reaction. He also conceded that at the time of
enrolment, the appellant was not suffering from any disease but argued that
the Court cannot sit in appeal over the opinion formed by the experts who
constituted Invaliding Medical Board.
6Page 7
10. We have considered the respective arguments. For the sake of
convenience, the relevant portions of the proceedings of the Invaliding
Medical Board which constituted the foundation of the appellant’s discharge
from Army and denial of disability pension read as under:
“CONFIDENTIAL
MEDICAL BOARD PROCEEDING INVALIDING ALL RANKS
Authority
for Board
AO
537/72
Place
M.H. Meerut
Date
14 Nov. 77
Name
Veerpal
Singh
Service No.
14289930
Rank/Rate
SIG/MAN
Unit/Sh
ip
676SIG
(04
C1056
APO
Date
birth
01.10.
53
Service Army/Corps/Bra
nch/Trade
Total Service Total flying
hours/Servic
e afloat
Permanent address:
ViQ Dhanaura (Tikri) P.O.
Dhanaura The. Sardhana
Dist. Meerut, U.P.
Identification marks: -
i Mole over middle, of
forehead.
ii. Mole over the It. cheek
Field/Operational/Overseas Service: Giving dates and place
From To Place From To Place
NIL
PART – I
PERSONAL STATEMENT
(The questions should be answered in the individual's own
words. This statement will be checked from official records as
7Page 8
far as possible)
----------------------------------------------------------------------------
1. Give particulars of previous service in
ARMY/NAVY/AIR/FORCE and state whether you
were invalided out of Service.
2. Give particulars of any diseases, wounds or
injuries from which you are suffering:-
----------------------------------------------------------------
Illness,
wound,
injury
Shizoph
Renic
Reactio
n
First Stated
Date Place
(295) Mar 76 Secunderbad MH
Secunde
-rabad
25.3.76
to
12.5.76
CHSE
Pune
13.5.76
to
5.9.76
23.11.7
6 to
5.1.77
MH
Secunde
rabad
5.7.77
to
30.8.77
MH
Meerut
14.10.7
7 to
DATE
3. Did you suffer from any disability mentioned in question
2 or anything like it before joining the Armed Forces? If
so give details and dates.
NIL
4. Give details of any incidents during your service which
you think caused or made your disability worse?
NIL
CONFIDENTIAL
5. In case of wound or injury, state now they happened and
8Page 9
whether or not (a) Medical Board or Court of Inquiry was
held, (b) Injury Report was submitted.
N.A.
6. Any other information you wish to give about your health.
NIL
I certify that I have answered as fully as possible all the
questions about my service and personal history and that
the information give is true to the best of my knowledge.
Witness : Signature
Sd/- Sd/-
14289930
----------------------------------------------------------------------
(In case of illiterate persons thumb and fingers
impressions of left hand will be taken here)
PART - II
STATEMENT OF CASE
(Not to be communicated to the Individual)
Disabilities Date of origin Place and unit
where serving at
the time
SCHIZOPHRE
NIC Reaction
- 295
Mar. 76 676 SIG Coy
C/056APO
2. Clinical details
a. Give the salient facts of:-
i. Personal and relevant family history.
ii. Specialist report; and
iii.Treatment
b. State present condition in details.
c. In this statement and in answering questions in
Part-Ill the Board will differentiae carefully
between the Individuals statement and the
evidence recorded in the medical documents.
CONFIDENTIAL
Sd/- Lt. Col.
Chief Record Officer
Signals Records
SUMMARY OF THE CASE
9Page 10
NO. 14289930 Rank: Sigman:
Name: Veer Pal
Singh
Time: 24 years
Unit: 676 Signal Coy C/o
56 APO
Diagnosis: SCHIZOPHRENIC
reaction (295)
=============================================
A case of Schizophrenic Reaction admitted for review
after sick leave from MH Secunderabad. At present he has
no complaints.
Perusal of the documents show that this patient was treated
earlier at the following hospitals for the same illness:-
1. MH Secunderabad - 25.3.76 to 12.5.76
2. From to CH (SC) Pune - 13.5.76 to 5.9.76 sent on sick
leave
3. CH (SC) Pune - Nov. 76 Cat CEE Temp w.e.f. 3.1.77.
4. MH Secunderabad - 05.7.77 to 30.8.77 sick leave.
Observation in the Ward:-
Showed him to be irritable, impulsive quarrel some with a
tendency to suspect the staff and other patients.
Past Illness:
Nil significant
Family History
Belong to U.P. Father - farmer - healthy. Mother healthy.
He has three brothers. No history of mental illness to the
family.
Personal History:
Youngest, Studied up to BA. Unmarried Gives history of
heterosexual experience. Smokes but does not rink.
Service:
6 years, Nil Punishment
On Exam:
GC fair, TPR - Normal, Lungs, Heart and Abdomen
-NAD ,
Treatment:
Antipaychotic drugs-
-Improvement - Not maintained.
10Page 11
OPINION OF MAJOR (MRS) N LALITHA RAO,
CLASSIFIED SPECIAL BT (PSYCHIATRY) MH MEERUT
DATED 09. NOV. 77.
A case of Schizophrenic Reaction (ICD 295) in cat ‘CEE'
Temp w.e.f. 3.1.77 was admitted and treated at MH
Secunderabad with self inflicted.
Injuries, in Jul 77, while in the hospital there, he had become
quarrels irritable and impulsive with treatment he improved
when he was sent in six weeks sick leave. Review as
admission, now shows him to be still irritable and argumentative
with persecutory delusions and suspicious. Residual features of
psychosis persist
- Therefore he is recommended invalidment from service.
Recommended Cat 'CEE'
Sd/- x x x x
[N LALITHA RAO]
MAJOR, AMC
PSYCHIATRIST
I view of the above, the individual is brought before Invaliding
Medical Board.
[N LALITHA RAO]
MAJOR, AMC
CONFIDENTIAL
PART – III
OPINION OF THE MEDICAL BOARD
(Not to be communicated to the Individual)
Note: Clear and decisive answers should be filed in by the
Board, Expressions such as 'night', ‘may', probably', should
be avoided.
-----------------------------------------------------------------------------
1. Did the disability/ies exist before entering
service.
NO
2. In respect of each disability the Medical Board
on the evidence before it will express its views
as to whether:-
i. It is attributable to service during peace or
11Page 12
under field service conditions; or
ii. It has been aggravated thereby and remains so;
or
iii. It is not connected with service.
The Board should state fully the reasons in
regard to each disability on which its opinion
is based.
Disability A B C
SCHIZOPHRENIC
REACTION
NO NO NO
b. In respect of each disability shown as
attributable under A, the Board should state
fully, the specific condition and period in
service which caused the disability.
N.A.
c. In respect of each disability shown as
attributable under A, the Board should state
fully:-
N.A.
i. The specific condition and period in
service which aggravated the disability
N.A.
ii. Whether the effects of such aggravation
still persist.
N.A.
iii
.
If the answer to (ii) is in the affirmative,
whether effect of aggravation will persist
for a material period.
N.A.
d. In the case of a disability under C, the Board
should state what exactly in their opinion is the
cause thereof.
The disease is constitutional and is
unconnected with service.
3. a. Was the disability, attributable to the
individual's own negligence or misconduct? If
so, in what way?
NO
b. If not attributable, was it aggravated by
negligence or misconduct? If so, in what way
12
and to what percentage of the total
disablement?
N.A.
c. Has the individual refused to undergo
operation/treatment? If so, individual's reasons
will be recorded.
N.A.
NOTE: In case of refusal of operation/treatment a
certificate from the individual will be attached.
d. Has the effect of refusal been explained to and
fully understood by him/her, viz., a reduction
in, or the entire withholding of, any disability
pension to which he/she might otherwise be
entitled?
N.A.
e. Do the Medical Board consider it probable
that the operation/treatment would have cured
the disability or reduced its percentage?
N.A.
f. If the reply to (e) is in affirmative, what is the
probable percentage to which the disablement
could be reduced .by operation/treatment?
N.A.
g. Do the Medical Board consider the operation
to be server and dangerous to life?
N.A.
h. Do the Medical Board consider the individual's
refusal to submit to operation/treatment
reasonable? Give reasons in support of the
opinion specifying he operation/treatment
recommended.
N.A.
4. What is present degree of disablement as
compared with a healthy person of the same
age and sex? (Percentage will be expressed as
Nil or as follows:-
1-5%, 6-19%, 11-14%, 15-90% and thereafter
in multiples of ten from 10% to 100%.
Disability (as
numbered in
question I,
part II)
Percentage
of
disablement
Probable
duration of
this degree of
disablement
Composite
assessment (all
disabilities)
13Page 14
SCHIZOPHRENIC
REACTION
(295)
30%
THIRTY
PERCENT
2 YEARS 30% THIRTY
PERCENT
CONFIDENTIAL
CERTIFICATE
No.14289930 Rank Sigman Name VEER PAL SINGH
The disability will not interfere with the performance of
normal/sabentuary suitable civil employment.
Disability SCHIZOPHERNIC REACTION
Sd/-
[OM PRAKASH]
Lt. Col. AMC
President Medical Board
Dated: 14 Nov. 77”
11. Although, the Courts are extremely loath to interfere with the opinion
of the experts, there is nothing like exclusion of judicial review of the decision
taken on the basis of such opinion.
What needs to be emphasized is that the
opinion of the experts deserves respect and not worship and the Courts and other judicial / quasi-judicial forums entrusted with the task of deciding the disputes relating to premature release / discharge from the Army cannot, in each and every case, refuse to examine the record of the Medical Board for
determining whether or not the conclusion reached by it is legally sustainable.
12. A recapitulation of the facts shows that at the time of enrolment in the
Army, the appellant was subjected to medical examination and Recruiting
Medical Officer found that he was fit in all respects. 
Item 25 of the certificate
14
issued by the Recruiting Medical Officer is quite significant. 
Therein it is
mentioned that speech of the appellant is normal and there is no evidence of
mental backwardness or emotional instability.
 It is, thus, evident that the
doctor who examined the appellant on 22.5.1972 did not find any disease or
abnormality in the behaviour of the appellant. 
When the Psychiatrist - Dr.
(Mrs.) Lalitha Rao examined the appellant, she noted he was quarrelsome,
irritable and impulsive but he had improved with the treatment. 
The Invaliding
Medical Board simply endorsed the observation made by Dr. Rao that it was
a case of “Schizophrenic Reaction”. 
13. In Merriam-Webster Dictionary “Schizophrenia” has been described as a psychotic disorder characterized by loss of contact with the environment, by noticeable deterioration in the level of functioning in everyday life, and by disintegration of personality expressed as disorder of feeling, thought (as in delusions), perception (as in hallucinations), and behavior – called also
dementia praecox; Schizophrenia is a chronic, severe, and disabling brain disorder that has affected people throughout history.
14. National Institute of Mental Health, USA has described
“Schizophrenia” in the following words:
“Schizophrenia is a chronic, severe, and disabling brain disorder
that has affected people throughout history. People with the
disorder may hear voices other people don’t hear. They may
believe other people are reading their minds, controlling their
thoughts, or plotting to harm them. This can terrify people with
the illness and make them withdrawn or extremely agitated.
15Page 16
People with schizophrenia may not make sense when they talk.
They may sit for hours without moving or talking. Sometimes
people with schizophrenia seem perfectly fine until they talk
about what they are really thinking. Families and society are
affected by schizophrenia too. Many people with schizophrenia
have difficulty holding a job or caring for themselves, so they
rely on others for help. Treatment helps relieve many symptoms
of schizophrenia, but most people who have the disorder cope
with symptoms throughout their lives. However, many people
with schizophrenia can lead rewarding and meaningful lives in
their communities.”
Some of the symptoms of schizophrenia are:
Positive symptoms
Positive symptoms are psychotic behaviors not seen in healthy people. People
with positive symptoms often “lose touch” with reality. These symptoms can
come and go. Sometimes they are severe and at other times hardly noticeable,
depending on whether the individual is receiving treatment. They include the
following:
Hallucinations – “Voices” are the most common type of hallucination in
schizophrenia. Hallucinations include seeing people or objects that are not
there, smelling odors that no one else detects, and feeling things like invisible
fingers touching their bodies when no one is near.
Delusions - The person believes delusions even after other people prove that
the beliefs are not true or logical. They may also believe that people on
television are directing special messages to them, or that radio stations are
16
broadcasting their thoughts aloud to others. Sometimes they believe they are
someone else, such as a famous historical figure. They may have paranoid
delusions and believe that others are trying to harm them.
Thought disorders - are unusual or dysfunctional ways of thinking. One form
of thought disorder is called “disorganized thinking”. This is when a person
has trouble organizing his or her thoughts or connecting them logically, a
person with a thought disorder might make up meaningless words, or
“neologisms”.
Movement disorders - may appear as agitated body movements. A person
with a movement disorder may repeat certain motions over and over. In the
other extreme, a person may become catatonic. Catatonia is a state in which a
person does not move and does not respond to others. Catatonia is rare today,
but it was more common when treatment for schizophrenia was not available.
Negative symptoms
Negative symptoms are associated with disruptions to normal emotions and
behaviors. These symptoms are harder to recognize as part of the disorder and
can be mistaken for depression or other conditions. These symptoms include
the following:
• “Flat affect” (a person’s face does not move or he or she talks in
a dull or monotonous voice)
• Lack of pleasure in everyday life
17Page 18
• Lack of ability to begin and sustain planned activities
• Speaking little, even when forced to interact.
15. In Modi’s Medical Jurisprudence and Toxicology (24th Edn. 2011) the
following varieties of Schizophrenia have been noticed:
Simple Schizophrenia – the illness begins in early adolescence. There is a
gradual loss of interest in the outside world, from which the person
withdraws. There is an all round impairment of mental faculties and he
emotionally becomes flat and apathetic. He loses interest in his best friends
who are few in number and gives up his hobbies. He has conflicts about sex,
particularly masturbation. He loses all ambition and drifts along in life,
swelling the rank of chronically unemployed. Complete disintegration of
personality does not occur, but when it does, it occurs after a number of
years.
Hebephrenia- hebephrenia occurs at an earlier age than either the katatonic
or the paranoid variety. Disordered thinking is the outstanding characteristic
of this kind of schizophrenia. There is great incoherence of thought, periods
of wild excitement occur and there are illusions and hallucinations. Delusions
which are bizarre in nature, are frequently present. Often, there is impulsive
and senseless conduct as though in response to their hallucination or
delusions. Ultimately the whole personality may completely disintegrate.
Katatonia - katatonia is the condition in which the period of excitement
18Page 19
alternates with that of katatonic stupor. The patient is in a state of wild
excitement, is destructive, violent and abusive. He may impulsively assault
anyone without the slightest provocation. Homicidal or suicidal attempts may
be made. Auditory hallucinations frequently occur, which may be responsible
for their violent behaviour. Sometimes, they destroy themselves because they
hear God’ voice commanding them to destroy themselves. This phase may
last from a few hours to a few days or weeks, followed by stage of stupor.
The katatonic stupor begins with a lack of interest, lack of concentration and
general apathy. He is negative, refuses to take food or medicines and to carry
out his daily routine activities like brushing his teeth, taking bath or change
his clothes…. The activities are so very limited that he may confine himself in
one place and assume one posture however uncomfortable, for hours together
without getting fatigued. His face is expressionless and his gaze vacant….
They may understand clearly everything that is going on around them, and
sometime without warning and without any apparent cause, they suddenly
attack any person standing nearby.
Paranoid Schizophrenia, Paranoia and Paraphrenia - Paranoia is now
regarded as a mild form of paranoid schizophrenia. The main characteristic of
this illness is a well elaborated delusional system in a personality that is
otherwise well preserved. The delusions are of a persecutory type. The true
nature of the illness may go unrecognized for a long time because the
personality is well preserved, and some of these paranoiacs may pass off as
19
social reformers or founders of queer pseudo-religious sects. The classical
picture is rare and generally takes a chronic course.
Paranoid schizophrenia, in the vast majority of cases, starts in the fourth
decade and develops insidiously. Suspiciousness is the characteristic
symptom of the early stage. Ideas of reference occur, which gradually develop
into delusions of persecution. Auditory hallucinations follow which in the
beginning, start as sounds or noises in the ears, but become fixed and definite,
to lead the patient to believe that he is persecuted by some unknown person or
some superhuman agency. He believes that his food is being poisoned, some
noxious gases are blown into his room and people are plotting against him to
ruin him. Disturbances of general sensation give rise to hallucinations, which
are attributed to the effects of hypnotism, electricity, wireless telegraphy or
atomic agencies. The patient gets very irritated and excited owing to these
painful and disagreeable hallucinations and delusions.
Since so many people are against him and are interested in his ruin, he comes
to believe that he must be a very important man. The nature of delusions thus,
may change from persecutory to grandiose type. He entertains delusions of
grandeur, power and wealth, and generally conducts himself in a haughty and
overbearing manner. The patient usually retains his money and orientation and
does not show signs of insanity, until the conversation is directed to the
particular type of delusion from which he is suffering. When delusions affect
his behaviour, he is often a source of danger to himself and others.
20Page 21
The name paraphrenia has been given to those suffering from paranoid
psychosis who, in spite of various hallucinations and more or less systemized
delusions, retain their personality in a relatively intact state. Generally,
paraphrenia begins later in life than the other paranoid psychosis.
Schizo Affective Psychosis - Schizo affective psychosis is an atypical type of
schizophrenia, in which there are moods or affect disturbances unlike other
varieties of schizophrenia, where there is blunting or flattening of affect.
Attacks of elation or depression, unmotivated rage, anxiety and panic occur in
this form of schizophrenic illness.
Pseudo-Neurotic Schizophrenia - schizophrenia may start with
overwhelmingly neurotic symptoms, which are so prominent that in the early
stages, it may be diagnosed as neurosis. When schizophrenia begins in an
obsessional personality, it may for a long time remain disguised as an
apparently obsessional illness.
16. In F.C.Redlich and Daniel X. Freedman in their book titled “The
Theory and Practice of Psychiatry” (1966 Edn.) observed:
 “Some schizophrenic reactions, which we call psychoses, may
be relatively mild and transient; others may not interfere too
seriously with many aspects of everyday living...”(p. 252)
Are the characteristic remissions and relapses expressions of
endogenous processes, or are they responses to psychosocial
variables, or both? Some patients recover, apparently
completely, when such recovery occurs without treatment we
speak of spontaneous remission. The term need not imply an
21Page 22
independent endogenous process; it is just as likely that the
spontaneous remission is a response to non-deliberate but
nonetheless favourable psychosocial stimuli other than specific
therapeutic activity . . . . (p. 465)
(emphasis supplied)
17. Unfortunately, the Tribunal did not even bother to look into the
contents of the certificate issued by the Invalidating Medical Board and
mechanically observed that it cannot sit in appeal over the opinion of the
Medical Board. If the learned members of the Tribunal had taken pains to
study the standard medical dictionaries and medical literature like “The
Theory and Practice of Psychiatry” by F.C. Redlich and Daniel X. Freedman,
and Modi’s Medical Jurisprudence and Toxicology, then they would have
definitely found that the observation made by Dr. Lalitha Rao was
substantially incompatible with the existing literature on the subject and the
conclusion recorded by the Invaliding Medical Board that it was a case of
Schizophrenic Reaction was not well founded and required a review in the
context of the observation made by Dr. Lalitha Rao herself that with the
treatment the appellant had improved. In our considered view, having regard
to the peculiar facts of this case, the Tribunal should have ordered constitution
of Review Medical Board for re-examination of the appellant. 
18. In Controller of Defence Accounts (Pension) v. S. Balachandran Nair
(2005) 13 SCC 128 on which reliance has been placed by the Tribunal, this
Court referred to Regulations 173 and 423 of the Pension Regulations and
22Page 23
held that the definite opinion formed by the Medical Board that the disease
suffered by the respondent was constitutional and was not attributable to
Military Service was binding and the High Court was not justified in directing
payment of disability pension to the respondent. The same view was
reiterated in Ministry of Defence v. A.V. Damodaran (2009) 9 SCC 140.
However, in neither of those cases, this Court was called upon to consider a
situation where the Medical Board had entirely relied upon an inchoate
opinion expressed by the Psychiatrist and no effort was made to consider the
improvement made in the degree of illness after the treatment. 
19. As a corollary to the above discussion, we hold that the impugned
order as also orders dated 14.7.2011 and 16.9.2011 passed by the Tribunal
are legally unsustainable.
20. In the result, the appeal is allowed. The orders passed by the Tribunal
are set aside and the respondents are directed to refer the case to Review
Medical Board for reassessing the medical condition of the appellant and find
out whether at the time of discharge from service he was suffering from a disease which made him unfit to continue in service and whether he would be entitled to disability pension.
.........................................................J.
(G.S. SINGHVI)
..........................................................J
.
23Page 24
(RANJANA PRAKASH DESAI)
..........................................................J
.
(SHARAD ARVIND BOBDE)
New Delhi
July 02, 2013.
24