R.SUBBIAH, J This Writ Appeal is directed as against the order of Writ Court dated 06.02.2001, made in W.P.No.7930 of 1995.
2. In and by the order dated 06.02.2001, the learned Single Judge has dismissed the Writ Petition filed by the appellant herein to quash the order dated 08.02.1995 and consequently, to direct the respondents to grant normal pension along with medical disability pension.
3. After the dismissal of the Writ Petition, the appellant herein has filed a Writ Appeal along with the delay of 2907 days. However, the Division Bench has dismissed the delay application. Aggrieved against the said order, the appellant has approached the Hon'ble Supreme Court. The Hon'ble Supreme Court in Civil Appeal No.8515 of 2011, set aside the order of the Division Bench and restored the Writ Appeal for consideration by this Court on merits. Thus, the Writ Appeal came up for hearing before this Court.
4. It is the case of the appellant that he was enrolled as an Airman in the Indian Air Force on 21.03.1980 at Airman Selection Centre, Tambaram. After the selection, he was sent to Sambra, Belgium, at the Administrative Training Institute for 52 weeks training and he passed out in April, 1981 and was posted to 7 BRD Air Force for service duties in the track of Clerk, General duties. The appellant got posting to 2211 squadron A.F-C/o.7 wing A.F. at Ambala in the year 1985 as a corporal and he served for two years. His squadron was again moved to a remote location at C/o.34 wing Bathinda close to Pakistan in 1986. This wing (31 wing) has a fighter squadron also. After reaching India, he developed hearing problem in the ear and reported the same to the Medical Authorities and it was diagnosed as "Bilateral conductive deafness". After continuous test, the E.N.T. Specialist advised him to undergo an operation in the right ear. In Delhi Cantonment Army Hospital, the E.N.T. Specialist advised him to undergo an operation in the left ear. As there was a difference of opinion between two Specialists, he made a request to send him to All India Institute of Medical Sciences, New Delhi, for opinion. At AIIMS, the appellant was told to undergo operation in the left ear. Further, AIIMS directed him to attend after three months for operation. In the meantime, he was transferred from Dhatindo to Nasik and he underwent operation in left ear on 21.10.1988 at INHS.
5. After the operation, the Head of the ENT Specialist advised him to take post operative card and asked him to avoid exposure to loud noise. However, he was forced to operate the Radio Telephone set used between Bor- gud, other and chamberleni which produces loud noise. Since he underwent an operation in the left ear, he requested the authorities several times to give him exemption. But, his request was turned down. Thereafter, he was posted to Central Airmen Selection Board. Since he was suffering from severe cough, cold and breathing problem, he was referred to Medical Specialist in Army Hospital, Delhi and after conducting several tests, they diagnosed it as a case of Br.Asthma and he was treated by Unit Medical Officer. The unsympathetic treatment of the officers made him to apply for voluntary discharge on medical ground. Since he was not able to continue in Delhi because of Asthma, he requested the respondents to transfer him to near his home town and applied for transfer to any Unit near to home town on medical ground. But the Commanding Officer refused to discharge him on medical ground. As a result, he applied for discharge on some other grounds. However, his application dated 18.01.1993 was not considered at all. Thereupon, he applied on 03.05.1993 to give him immediate discharge on medical ground or in the alternative transfer him to Trivandrum. By order dated 11.05.1993, he was discharged from service on compassionate ground with reserve liability for a period of two years from the date of SOS. On the date of discharge, he had completed only 13 years and 98 days of service. Actually, the appellant should be deemed to have completed 15 years of service. Thereafter, on 30.06.1993, he applied to the third respondent to grant him normal pension as well as disability pension. The third respondent, by letter dated 13.07.1993, forwarded the papers to the second respondent for necessary action and disposal. The second respondent, by letter dated 23.07.1993, informed him that he was not eligible for service pension or for disability pension. Again, the appellant sent a letter to the second respondent on 13.10.1993 and the second respondent, by order dated 10.12.1993, called him to fill up certain forms and forward the same, so as to enable him to obtain medical disability pension. After several proceedings, finally, by order dated 08.02.1995, the second respondent rejected the medical disability pension. Aggrieved over the same, the appellant has filed the Writ Petition.
6. The learned Single Judge, by order dated 06.02.2001, has dismissed the Writ Petition stating that the appellant was not invalidated out from service on account of his disability and as such, he cannot legally sustain the claim of disability pension and he is not coming with the parameter provided under Section 153 of the Pension Regulations for the Air Force, 1961.
7. When the matter was taken up for consideration, the learned counsel for the appellant made a detailed submission by adverting to the averments made in the affidavit filed in support of the Writ Petition as well as the memorandum of grounds raised in the present Writ Appeal. It is his main submission that while he was in employment, he had undergone operation in his left ear and he had been suffering from Asthma. As such, the respondents ought to have discharged the appellant from service on medical ground and sanctioned the pension. Hence, the rejection of the appellant's request for grant of disability pension is not justifiable. Moreover, the appellant had put in 13 years and 98 days of service and he was discharged from service with reserve liability for a period of two years. Therefore, the respondents are bound to pay the disability pension to the appellant, which, he is legally entitled to.
8. In this regard, the learned counsel for the appellant has also invited the attention of this Court to Section 153 of Airforce Pension Regulation Act, 1961, which reads as follows:
"Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by air force service and is assessed at 20 per cent or over."
Thus, the appellant is eligible for disability pension, as per Section 153 of the Airforce Pension Regulation Act, 1961 [hereinafter referred to as "the Act". Therefore, the appellant seeks for allowing the Writ Appeal.
9. In support of his contention, the learned counsel has also relied upon a judgment reported in 2015(2) MLJ 357 (SC) [Union of India v. Rajbir Singh], wherein it was held that the respondent having been discharged from service on account of medical disease, disability must be presumed to have arisen in the course of service.
10. In the instant case, the appellant joined the service in 1980. At the time of joining service, he did not have any disability and while he was in service, he developed bilateral conductive deafness. Therefore, since the appellant was discharged from service for invalidation, he is also entitled to get the disability pension.
11. For the very same proposition, he has also relied upon a judgment reported in 2015(4) MLJ 168 [T.Kothandapani v. Commodore, Senior Staff Officer Bureau].
12. Per contra, the learned counsel for the respondents submitted that the appellant's condition was diagnosed as a case of Bilateral conductive hearing loss. He was operated on left ear on 21 October, 1988. His hearing improved and he was placed in low medical category BEE (T-12). A year later, his hearing deteriorated again. He was advised another surgical procedure, which he refused in writing. He was placed in low medical category CEE (T). Prior to discharge, a Release Medical Board was conducted on 28.05.1993 for his disability, viz., Bilateral conductive deafness and the Board assessed the disability at 11-14% for two years. The appellant had been in regular Air Force service for 13 years and 98 days before being discharged from service under the provision of Air Force Rules, 1969, Chapter III, Rule 15, Clause 2(f), at his own request, before fulfilling the condition of his enrolment, but he is not entitled to service pension, and to earn service pension, the appellant ought to have rendered minimum qualifying regular service of 15 years. As per Section 153 of the Act, the person, who is having the disability at 20 percent or over, alone is eligible for getting disability pension. In the instant case, the Medical Board assessed the disability of the appellant at 11-14%.
13. In fact, in the case on hand, the appellant himself voluntarily submitted an application on 18.01.1993, requesting the Airforce Authorities for premature discharge from service on educational grounds, which was approved by the competent authority on 30.04.1993. As a result, he was discharged from service on his own request. Since he was discharged from service on his own, he is not eligible for disability pension. Furthermore, since the disability assessed in this case is 11-14%, he was not medically invalidated and therefore, the judgment relied upon by the learned counsel for the appellant cannot be made applicable to the facts of the present case.
14. In this regard, the learned counsel for the respondents has also invited the attention of this Court to the request of the appellant dated 18.01.1993, in which, he had clearly stated that he was aware that he is not entitled for disability pension. Thus, the learned counsel sought for dismissal of the Writ Appeal.
15. Keeping in mind the submissions made on either side, we have carefully gone through the entire materials available on record.
16. It is the main submission of the learned counsel for the appellant that since the Medical Board found him unfit, he is eligible for getting disability pension. However, on a careful perusal of the materials available on record, we find that the appellant was not discharged on the ground of disability by the respondents. On the other hand, on his own request, he was discharged from service on accepting the application submitted by him voluntarily on 18.01.1993, on medical ground, after completing the regular service of13 years and 98 days. It is also pertinent to be noted that as per Section 153 of the Act, to get the disability pension, the disability assessed is 20 percent or over. However, in the case on hand, the disability of the appellant was only 11 -14% and he was not medically invalidated. As stated above, he voluntarily got discharged from service. Therefore, as per the prescribed rules, he is not entitled for disability pension.
17. In this regard, a reference could be placed on the judgment relied upon by the learned counsel for the respondents in 2009(9) SCC 140 [Ministry of Defence v. A.V.Damodaran], wherein it has been held that the Medical Board is an Expert body and its opinion is entitled to due weight, value and credence.
18. In the instant case, the Medical Board has assessed the disability of the appellant at 11-14%. Therefore, according to Section 153 of the Act, the person, who possessed the disability at 20 percent or over, alone is entitled to get disability pension and if he was discharged from the service by the respondents on medical ground, he is entitled for pension. In the instant case, the appellant himself got discharged from service and even in the application, he had stated that he was fully aware that he is not eligible for pension. When that being so, the appellant cannot claim disability pension at this juncture. Hence, absolutely, we do not find any infirmity in the order passed by the learned Single Judge. The Writ Appeal fails and accordingly, the same is dismissed confirming the order of the learned Single Judge. No costs..