Individual examination is necessary to ascertain attributability of mental disorders to military service, and relapsing forms of mental disorders may not be detectable during initial recruitment examination.

JUDGMENT

Sanjeev Sachdeva, J. (Oral)

CM APPL.41243/2023 (exemption)

Exemption allowed subject to all just exceptions.

W.P.(C) 10628/2023

1. Issue notice. Notice is accepted by learned counsel appearing for the respondents.

2. With the consent of parties, petition is taken up for final disposal today itself.

3. Petitioner impugns order dated 22.09.2022 where the original application filed by the petitioner before the Armed Forces Tribunal (hereinafter referred to as `the Tribunal') has been dismissed. Petitioner also impugns order dated 07.02.2023 whereby the review application filed by petitioner has been dismissed.

4. Petitioner was recruited in the Army in trade of Unit Cook on 05.08.1989 in Army Ordinance Corps. Petitioner was physically examined at the time of recruitment and was declared fit in SHAPE AYE and he was thereafter allowed to join his training.

5. During training, petitioner was medically examined and was declared to be suffering from mental retardation. Petitioner was recruited on 05.08.1989 and his ailment was discovered in December 1989 itself when he was undergoing training. The Invalidation Medical Board was held on 21.05.1990 and he was invalidated on 06.06.1990.

6. Learned counsel for the petitioner submits that petitioner was fit, hale and hearty when he was enlisted and developed illness on account of stress caused by the excess hours of working i.e. from 4 am till 11 in the night on daily basis.

7. Petitioner filed Original Application before the Tribunal in the year 2017 which was dismissed by the impugned order dated 22.09.2022. Thereafter petitioner filed a petition before this Court being WP(C) 41/2023 impugning order dated 22.09.2022 which was disposed of on 04.01.2023 permitting the petitioner to file a review petition before the Tribunal which review petition was dismissed by the impugned order dated 07.02.2023.

8. We notice that petitioner was invalidated on 06.06.1990 and approached the Tribunal in the year 2017 after a delay of over 27 years. Tribunal in the impugned order dated 22.09.2022, while holding that the petition filed by the petitioner before the Tribunal was grossly delayed having been filed after a period of 25 years considered the case on merits also. The Tribunal noticed that since the mental disability came to light in less than 5 months of recruitment training, the Medical Board held assessed the mental retardation at 30% for 5 years and opined that the disability was neither attributable to nor aggravated by military service. The claim of petitioner for grant of disability pension was rejected on the ground that the illness was a constitutional disease and neither attributable to nor aggravated by military service.

9. The Tribunal also noticed that the pension was not sanctioned, the medical records had been destroyed and limited records were available.

10. The Tribunal has referred to the opinion given by the Senior Advisor (Psychiatry) of Command Hospital, Air Force, Bangalore on 23.03.1990 qua the petitioner which reads as under:

"This young recruit came under psychiatric evaluation because of certain oddity of his behaviour noted during his training. His performance was very poor, unable to comprehend simple instructions and had to be helped to keep himself clean and hygienic. Psychiatric evaluation has confirmed subnormality of intelligence (IQ below 70) with associated disturbance of adaptive behaviour. Relevant investigations including CT scan revealed no evidence of any intracranial pathology. A case of Mental Retardation (Primary) and is uneducable. With this level of subnormal intellectual potential, the recruit is not trainable and will not be able to perform his duties. Recommend to be invalided out of service in Cat. EEE."

11. The Senior Advisor (Psychiatry) had opined that petitioner was brought for evaluation on account of oddity of his behaviour noted during training, his poor performance, inability to comprehend simple instructions and needed help to b