To,

Raj Bahadur
Additional Govt. Advocate
CAS

Sub:- Order dated 23.03.2021 passed by the Hon'ble AFT (RB), Lucknow in
OA No. 9/2017 in the matter of Smt. Radha Devi Vs. UOI & Ors.

Dear Sir,

My opinion has been sought regarding the feasibility of filing a Civil Appeal
in the aforesaid matter. I have carefully gone through the Impugned Judgment and
the entire case record that has been made available to me.

1. The issue for consideration before the Hon’ble AFT (RB), Lucknow was for
the grant of Special family pension to Smt. Radha Devi, widow of Sep.
(Late) Gyan Singh of DSC along with arrears and interest. The deceased Ex
Sep (Late) Gyan Singh rendered 18 years of qualifying service in the Army
and availed all the pensionary benefits. He was re-enrolled in DSC on 10th
July 1986 and was placed in low medical category (CEE) with effect from
04th June 1989 for the diagnosis of DIABETES MLLITUS' and was
subsequently downgraded to permanent low medical category (CEE) with
effect from 20th July 1989. Later, he was placed in low medical category
CEE (permanent) with effect from 25th October 1990 due to CARCINOMA
COLON and he died on 16th October 1993. The cause of death
"Disseminated Carcinoma Colon and Diabetes Mallitus' was assessed as
neither attributable to nor aggravated by military service (NANA) and not
connected with service.

2. The duly constituted medical board, consisting of expert doctors,

categorically and clearly found the cause of death to be a disease which was
assessed as ‘Neither attributable nor aggravated by military service’. The
Hon’ble Supreme Court has held in a catena of judgements, such as Ministry
of Defence & Ors. Vs. A.V. Damodaran [(2009) 9 SCC 140], that the
opinion of the expert medical body has to be given primacy, due weight and
that it cannot be lightly interfered with.

3. The administrative department has also pointed out that this case comes
under the ambit of para 213 of the PRA-1961 (Part-1), according to which a
Special Family Pension may be granted to the family of an individual if his
 death was due to or hastened by a wound, injury or disease which was
attributable to military service or the aggravation by military service of a
wound, injury or disease which existed before or arose during military
service. Whereas, in this case, the cause of death has been assessed as
NANA by the medical board and therefore, the petitioner is NOT entitled for
the grant of Special Family Pension.

4. It must also be noted that the facts of this matter are different from the facts
in the matter of Dharamveer Singh Vs. UOI & Ors [(2013) 7 SCC 316],
which has been relied upon by the Ld. AFT. Whereas the applicant in
Dharamveer’s case was in the regular service of the Armed forces, the
deceased in the present case was re-employed in DSC after retiring from the
regular service with the Army. Furthermore, the nature of the injury/disease
in both these cases are completely different in nature.

5. For all the aforesaid reasons, I concur with the opinion of Department of Ex-
Servicemen Welfare, Ministry of Defence and Department of Legal Affairs,
Ministry of Law & Justice that the impugned order suffers from grave
infirmities and is contrary to the statutory regulations and expert medical
opinion. Therefore, in my opinion, it is a fit case for preferring a Civil
Appeal against Order dated 23.03.2021 passed by the Hon'ble AFT (RB),
Lucknow in OA No. 9/2017.

6. Opined accordingly.