Authorities cannot rely on 100% disability from initial medical board for discharging employee on medical grounds but use post-discharge re-survey board's lower percentage to reduce disability pension quantum.

JUDGMENT :

Sandeep V. Marne J.

1) By this Petition, filed under Article 226 of the Constitution of India, the Petitioner challenges the Re-survey Medical Board Report (RMB) dated 29 July 2009 resulting in reduction of his disability pension from 30% to 15 % of last drawn basic pay. Petitioner was earlier certified to be 100% disabled in the Invalidation Medical Board (IMB) and was accordingly discharged from service on invalidation on medical ground of being permanently unfit under Rule 26 of the Indian Coast Guard (General) Rules, 1986 read with Central Civil Services (Extraordinary Pension) Rules, 1972 by order dated 7 July 2008. Upon being medically discharged, the Petitioner was sanctioned invalid pension under Rule 38 of the Central Civil Services (Extraordinary Pension) Rules, 1972, which is 50% of the last basic pay. Over and above the invalid pension, Petitioner also became entitled to disability element which was 30% of last basic pay on account of 100% disability certified by the IMB. However, a year later, the Petitioner was subjected to Re-survey Medical Board on 29 July 2009 in which his disability was reduced in the range of 15-19%. On account of fall in the percentage of disability from 100% to 15%-19%, the disability element has been reduced from 30% of last basic pay to 15% of last basic pay. Petitioner is accordingly aggrieved by the action of the Respondents in subjecting him to RMB and in reduction in his disability element and has accordingly filed the present petition.

2) Briefly stated, facts of the case are that the Petitioner was selected and appointed on the post of Navik-General Duty in the Indian Coast Guard, on 13 July 1992. He was thereafter promoted to the post of Uttam Navik and Pradhan Navik. Petitioner claimed that he performed rescue operations for saving lives of the people affected by Tsunami in December 2004 at the coasts of Maldives and Kerala. He claims that he became victim of outbreak of epidemic and fell sick in the month of March 2005 and was admitted to INHS Asvini Naval Hospital at Mumbai. He was diagnosed with Pulmonary Tuberculosis and was transferred to MH (CTC) Hospital at Pune which is specifically designated for treatment of Tuberculosis and Leprosy. He was discharged from the Hospital and resumed duties at Mumbai Headquarters in July 2005. In the year 2006, he was transferred to New Mangalore District Headquarters, where he allegedly suffered on account of extremely polluted air with presence of significant iron ore dust in the air resulting in deterioration of his health. The Pulmonary Tuberculosis of the Petitioner relapsed in July 2007 and he was again required to be admitted in MH (CTC), Hospital Pune. The Invalidation Medical Board was constituted under Regulations for the Medical Services of the Armed Forces Rules, 1983 (RMSAF Rules). The IMB on 29 October 2007 certified that the Petitioner was suffering from 100% disability for one year in the medical examination conducted. Some correspondence ensued between various authorities. It appears that the Commandant, New Mangalore District Headquarters had requested retention of the Petitioner in service in low medical category by letter dated 31 October 2007. The Commandant further wrote letter dated 25 December 2007 not recommending Petitioner’s case for dischar