Birender Singh vs Union Of India And Others

The applicant by way of this ()A seeks the following reliefs:

(a) To quash the [IMPUGNED ORDER placed as Annexure A-1, issued by Records, the Jat Regiment vide their letter No.3 185347/M10R dated

19.4.97 vide which disability pension claim of petitioner was rejected.

(b) To direct the respondonis to pay the disability pension to the petitioner from 3O.9.1996, the date of his discharge from service.

(c) To direct the respondents to increase disability pension to 50% from 30.9.1996, the date of his dhscharge from service in accordance with broad

band or round up policy issued vide para 7.2 of Government of India, Ministry of Defence Letter No.1(2)/971D('Pen-C) dated 31stt January 2001.

(d) To direct the respondents to pay the applicant arrears of disability pension (""H?. 50% from 30.9.1996, the date of his discharge from service till the

payment is made along with interest @ 12% per annum.

(e) To direct the respondents to compensate the applicant for the. harassment and the mental agony due to the denial of his rightful entitlement.

(f) To award cost of petition.

(g) To pass such and further order or orders, as this Fion'ble Tribunal may deem fit and proper in the facts and circumstances of the case in favour of

the petitioner and against the respondents.

Having been found medically and physically fit, the applicant, who .joined the Indian Army on 30th October, 1991 was discharged from service on

30t1 September, 1996, in permanent low medical category ""LANTICULER OPACITIES BOTH EYES"" disability of which was assessed at thirty per

cent for two years, treating it neither attributable to nor aggravated by militaty service, by Invalid Medical Board.

Learned counsel for the applicant contended that the instant matter is squarely covered by a catena of decisions of the HonIle Supreme court

including Dharamvir Singh Vs. Union of India and Ors. (2013) 7 SCC 316 U, nion of India and Ors. Vs. Rajvir Singh (2015) 12 SCC 26 4and Union of

India and Ors Vs. Angad Singh, (2015) 12 SCC 257. Furl her, the claim of the applicant is also supported by relevant rules.

Per contra, learned counsel for the respondents cot tended that the applicant is not entitled to the relief claimed since the Release Medical Board,

ixing an, Expert Body, found_ the disability ""Neither Attributable to Nor Aggravated by Military Service. It is further contended that due weight, value

and credenceshould be given to the opinion of the Medical Board.

We have heard learned counsel on both sides and perused the !MB in detail. The Da has denied attributability on the ground that it is a

'constitutional disease'. However, we don't find this two word cryptic reason to be adequate to justify denial of attributability, is clear that this disease

is a type of cataract. Medical literature on this disease indicates thrce primary reasons for this disease, i.e., injury exposed to heat or radiation and

inherited factors. Thus this two word cryptic denial by NB 'oanstiiutional disease' does not explain as to how such a young soldier who was fully fit at

enrolment has picked up this disease. Thus con!zidering all the issues and in light of the law settled by Horeble Supreme Court on atiributability vide

their judgment inDhanittiVir Singh (supra), we would like lo extend benefit of doubt to the applicant and therefore his disability is to be considered as

aggravated by military service.

So far as the rounding off is concerned, in the light of the decision of the Hort7blc Supreme Court in the case of Union of India and Or. ViRani

Aviar and Ors. (Civil Appeal No.418 of 2012 decided on 10th December, 2014) and Sukhvinder Slab Vs. Union of India and Ors. 1(2014) 14 SCC

3641, we are of the considered opinion that the applicant is entitled to the benefit of rounding off from thirty per cent to fifty per cent for two years

with effect from the date of his discharge from service, i.e., 30th September, 1996. In view of the above the OA is partly allowed. The disability of the

applicant at the rate of thirty per cent for two years to be considered as avravated by military service and the applicant is entitled to disability pension

with effect from the date of his discharge. However, since the huge delay in tiling this OA has been condoned, the arrears of disability pension will be

restricted to three years before the date of tiling this OA as per the law settled by Horeble Supreme Court in the case of Shiv Das Vs. Union of India

and ors (2007) 9 SCC 2741. The date of filing of the OA is 12th May, 2016. We further clarify that applicant shall be entitled to three year 4irmars of

service element of disability pension only. He shall not be entitled to any arrears for disability element for the period of two years after discharge.

Further entitlement of the disability clement will be subject to the outcome of the Re-survey Medical Board which the respondents shall conduct

within tour months from the date of receipt of copy of this order. Ordered accordingly.

The respondents are directed to comply with this order within four months from the date of receipt of a copy of this order. in default it will carry

interest at the rate of eight per cent till the actual payment is made.

in view of the above, the instant OA desenres to be allowed, hence allowed in the aforesaid terms. No order as to costs.