Devinder Singh vs Union of India & ors.

J.P. Singh, J.—Ex. Sepoy No. 3385765 Devinder Singh has appealed to this Court through his original side appeal, LPASW No.

168/2005, for setting aside writ Court judgment dated 07.10.2005 in SWP No. 2333/2000 and for grant of disability pension to him.

Facts, necessary for the decision of this appeal, may be stated thus:

The appellant joined army on 16.11.1985. He completed his training but was thereafter discharged and invalidated out from service. His request

for grant of disability pension was rejected by the respondents on 18.06.1991. He kept on making representations but to no affect. His

representation was finally rejected vide communication dated 29.05.2000. Aggrieved by the rejection of his claim for grant of disability pension, he

filed SWP No. 2333/2000, which was rejected by a learned Single Judge of this Court vide his judgment dated 07.10.2005.

Appellant's plea that he was subjected to medical examination at the time of his entry into service and no such disease had been detected at the

time of his entry, so the detection of 'Neurosis' (hysterical reaction) cannot, but, be attributed to military service, was rejected by the learned Single

Judge on the ground that in view of the opinion of the Medical Board that the appellant was suffering from constitutional disease, the finding of the

Board could not be substituted or interfered with because no material had been brought on records to suggest to the contrary. Learned Single

Judge while rejecting appellant's plea held as follows:

The opinion of the Medical Boards constituted in the matter, who have examined the petitioner and found him to be suffering from mental ailments

cannot be easily ignored, particularly, because there is no material, whatsover, available on record to suggest the contrary and the Court can't

substitute the unrebutted medical opinion by any other opinion whatsover. That petitioner 's ailment was too complex to be determined by the initial

tests is shown by the fact that even the detailed

investigations conducted by Medical board could not reveal any physical disability/disease in the petitioner. On detailed examination he was found

to suffer from dilusions hallucinations coupled with occasional giddiness and other psychological complications. As per opinion of medical board,

the petitioner had a lurking suspicion in his mind that he was administered something by one of his relations, which kept him occupied and affected

his personality in such a way as rendered him quite immature in reasoning and thinking. That being so, the petitioner appears to have been suffering

from the constitutional disease as diagnosed by the Medical board, even before his joining the army which does not appear to be attributable to

military service, as it does not appear to have a casual connection therewith, and had nothing to do with the stress and strain of the service.

The present appeal has arisen in the circumstances detailed hereinabove.

Sh. D.R. Khajuria, learned counsel for the appellant, submits that the decision of the respondents in rejecting the case of the petitioner for

disability pension and dismissal of SWP No. 2333/2000 by the learned Single Judge, were unwarranted in view of the clear legal position of the

rules governing the grant or refusal of disability pension to persons invalidated out from service. Learned counsel refers to 'Baljit Singh vs. Union of

India and another' a Division Bench judgment of the High Court of Himachal Pradesh, Shimla, in writ petition No. 738/1995; 'Ajit Kumar vs.

Union of India' in C.W.P. No. 382/1992, another judgment of High Court of Himachal Pradesh; 'Ex. Sepoy Manjit Singh vs. Union of India and

another reported as 1997 KLJ 179; and 'Mani Ram vs. Union of India and others' reported as 2003 (3) JKJ 653.

Sh. Meyank Gupta, learned Central Government Standing Counsel, on the other hand, refers to 'Controller of Defence Accounts (Pension) and

others vs. S. Balachandran Nair reported as AIR 2005 Supreme Court 4391, to support his submission that in view of the opinion of the Medical

Board, the petitioner was not entitled to disability pension and the illness cannot be said to be attributable to or aggravated by military service being

a constitutional disease.

We have considered the submissions of learned counsel for the parties and gone through the judgments cited by them as also the judgment

impugned in this appeal. The records of the Medical Board, which were made available to us by learned counsel for Union of India too have been

perused by us.

Before dealing with the question which arises in the present appeal as to the entitlement or otherwise of the appellant to disability pension, in

presence of opinion of the Medical Board holding him to be suffering from a constitutional disease, we would like to refer to the Regulations

pertaining to claims to pension, gratuity or allowance (in short the 'Pension Regulations'). Regulation

173 of the above Regulations, reads thus;

Primary conditions for the grant of disability Pension 173. Unless otherwise specifically provided a disability pension may be granted to an

individual who is invalidated from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20

per cent or over.

The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II.

Appendix II referred in Pension Regulations, in turn, refers to the Entitlement Rules, which are effective from 01.04.1948. These Entitlement Rules,

read thus:

With effect from 1st April, 1948, in supersession of all previous orders on the subject the entitlement to disability and family pension, children's

allowances and death gratuities will be governed by the following rules. Invaliding from service is a necessary condition for the grant of a disability

pension. An individual who at the time of his release under the Release Regulations is in a lower medical category than that in which he was

recruited will be treated as invalided from service. JCOs/Ors/NCs(E) who are placed permanently in a medical category other than (A) and are

discharged because no alternative employment suitable to their low medical category can be provided as well as those who having been retained in

alternative employment but are discharged before the completion of their engagement will be deemed to have invalided out of service.

In respect of diseases, the following rules will be observed:

(a) Cases, in which it is established that conditions of military service did not determine or contribute to the onset of the disease but influenced the

subsequent course of the disease, will fall for acceptance on the basis of aggravation.

(b) A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the

time of the individual's acceptance for military service. However, if medical opinion holds, for reasons to be stated, that the disease could not have

been detected on medical examination prior to acceptance for service the disease will not be deemed to have arisen during service.

(c) If a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed

to the onset of the disease and that the conditions were due to the circumstances of duty in military service.

(d) In considering whether a particular disease is due to military service, it is necessary to relate the established facts, in the aetiology of the disease

and of its normal development, to the effect that conditions of service e.g., exposure, stress, climate, etc. may have had on its manifestation.

Regard must also be had to the time factor.

We have examined the judgment cited by learned counsel for the Union of India to find out as to whether or not the issue raised before us had

fallen for consideration and decision before the Supreme Court. We could not, however, find any reference or discussion on Rule 7(b) of the

Entitlement Rules forming part of Appendix II to the Pension Regulations. Hon'ble Supreme Court in the case (supra) had referred to Rules 2, 3 &

4 of the Entitlement Rules. It had referred to the Regulations for the Medical Service of Armed Forces (1983). The judgment of the Supreme

Court, therefore, cannot be of any assistance to the learned counsel for the Union of India because the question raised in this appeal turns on the

interpretation of Regulation 173 of the Pension Regulations read with Rule 7(b) of the Entitlement Rules.

The question raised in this appeal as to whether or not the claim of pension of the appellant could be rejected by the respondents in the

absence of any reasons, much less detailed reasons by the Medical Board that the disease suffered by the appellant was such which could not have

been detected at the time of his entry into service, had fallen for consideration before this Court on an earlier occasion also when one of us (B.A.

Khan, ACJ) held in 'ExSpy. Monjit Singh vs. Union of India and anr reported as 1997 KLJ 179, as follows:

I have already disposed of an identical matter involving interpretation of Army Pension Regulations 173 and 173A read with rule 7(b) of

Appendix II and amendment made in this regulation thereafter vide C.S. No. 37/IV/67.

It goes without saying that the grant of disability pension to army personnel is governed by Regulations of 1961, which, inter alia, provide for grant

of disability pension to an individual who is invalidated from service on account of disability which is attributable to or aggravated by the military

service and is assessed at 20 percent or over. The question whether such disability was attributable to or aggravated by the military service was to

be decided in accordance with Rule 7 of Appendix II which lays down that a disease which had led to an individual's discharge or death will

ordinarily be deemed to have arisen in service, if no note was made of it at the time of individual's acceptance for military service. However, if the

medical apinion holds that the disease was such which could not have been detected on medical examination, on entry into service, such disease

would not be deemed to have arisen during the service.

Consequent upon the amendment made in Army regulation 173, the scope for grant of disability pension stands widened in as much as now all

those individuals who are discharged on account of their being permanently low medical category become entitled to disability pension. In other

words, the amendment has created an additional avenue of entitlement irrespective of whether an ailment or disease was attributable to or

aggravated by military service.

In the present case, petitioner was enrolled in 1985 and he was placed in low medical category ""CEE"" on 17.1.1988. In between he was also

upgraded to medical category ""AYE"" from 19.7.1989 but was invalidated out of service after he was declared unfit by the medical board on

account of his ailment which was characterized as 'constitutional personality disorder'.

In the circumstances it is not difficult to gather that petitioner's disease, whatever name was given to it, was not noticed at the time of his enrolment

in the service, nor was the disease such as was incapable of being noticed by the medical experts. On the contrary, his ailment was not noticed till

1990 for 5 years for which period he was continued till 1990 for which period he was continued in service. Therefore, considering that his disorder

or disease was noticed 5 years after his enrolment and that his medical category underwent a change during various medical ' examinations, only

shows that his ailment was attributable to the military service after it had gone unnoticed at the time of his enrolment. In any case it is the admitted

position that the petitioner was boarded out of service on account of his permanent disability bringing his case within the amended Army Regulation

1973. As such his case is covered on both counts.

A Division Bench of this Court too took the same view in 'Union of India vs. Rattan Lai' reported as 1992 (2) SCT 39 by holding as follows:

At a young age of 20 years, the petitioner with excellent health and stout body is said to have joined Indian Army in the year 1963. He was

attached as Technical Assistant, Gunner. He is said to have been seen action in the war of 1965. Seven years later, he was boarded out of Army

being placed in 'Low Medical Category'. The petitioner was seeking disability pension. This was refused in the month of Sept. '87. It was refused

on the ground that the disability which resulted in his invalidment from service was neither attributable to nor aggravated by the military service. The

decision to this effect was arrived at by the Pension Sanctioning Authority located at Allahabad. The petitioner submits that if an army personnel is

boarded out on a ground on which he has been boarded out, then he becomes entitled to full pension for the rest of his life. Having been declined

the pension, he approached this court. A writ stands issued. The Union of India has preferred an appeal under Clause 12 of the Letters patent.

This Division Bench judgment was followed in another judgment of a learned Single Judge of this Court in 'Mam Ram vs. Union of India and

others' reported as 2003 (3) JKJ 652.

We have examined the original record of the Medical Board. This record does not indicate any such finding or reasons as contemplated by

Rule 7 (b) of the Entitlement Rules that the disease was such, which could not have been detected at the time of entry of the appellant into army

service. The plea of Union of India that this disease was such which could not have been detected at the time of entry of the appellant into army

service, cannot, thus, be accepted in view of the rule position on the subject and in the absence of any finding of the Medical Board that the

disease was such which could not have been detected at the time of entry of the appellant into service. In terms of Rule 7(b), it has, thus, to be

presumed that the appellant had contacted this disease while in service. This is so because no note of it had been made at the time of appellant's

acceptance for military service. Rule 173(a) and provisions of Entitlement Rules,, have not been considered by the learned Single Judge and the

discussion of the learned Single Judge, sans reference to, and consideration of, the relevant rules, becomes unjustified and unwarranted. Dismissal

of the writ petition, in the absence of consideration of rule position cannot, thus, be sustained.

In view of the clear position of Rule 7(b) and there being no finding by the Medical Board that the illness of the petitioner could not have been

detected at the time of entry into service, backed by reasons, we are constrained to hold that the respondents have erred in refusing consideration

of his case for entitlement to disability pension under rules. We, accordingly, while upsetting the finding of learned Single Judge and holding the

appellant entitled to the grant of disability pension, would allow the writ petition and direct the respondents to consider the case of the appellant for

grant of disability pension within a period of two months from today.

For all what has been said above, this appeal is, accordingly, allowed.