Dilip Kumar Shukla vs Union Of India And Others

The applicant, Ex. Sgt. Dilip Kumar Shukla, through the medium of the instant Original Application is seeking the following reliefs:

(A) Direct the respondents to consider the disability. of the applicant as attributable to and aggravated by service, and grant disability pension to the

applicant v4ef 01.04.2010.

(B) Direct the respondents to give the benefits of rounding off of disability element from 40% for life to ©50% for life and grant disability pension

me,f. 01.04,2010 @lam for life 'n the fight of law laid down by Hontble Supreme Court alongwith interest ©12% per annum alongwith all

consequential benefits; and

(C) To award any other/further relief which this Hontle Tribunal may deem fit and proper in the facts and circumstances of the case alonai.vith cost

of the application in favour of the appticant and against the respondents.

2, The facts of the case, in brief, are that the applicant was enrolled in the Indian Air Force on 16.03.1990 and was discharged from service on

31.03.2010 in low medical category. The Release Medical Board (RMB) held at 402 AF Station Kanpur on 09.06.2009 assessed his disability

'BILATERAL RETINAL VASCULITIS WITH VITREOUS HAEMORRHAGE (LT) EYE OPTD OLD H-34.0r H43.11 Z-09.0' @ 40% for life.

However, the RMB opined that the disease of the applicant was neither attributable to nor aggravated by mifitary service (NANA). The applicant's

claim for grant of disability pension was rejected by the respondents vide order dated 24.08.2009. The aplicant's first and second appeals have also

been rejected by the respondents vide orders dated 08,04.2010 and 16.012014. Hence the instant Original Application,

Learned Counsel for the applicant submitted that the applicant was medically [I,: when he was enrolled in Air Force service and any disability not

recorded at the time of enrolment should be presumed to have been caused subsequently. The action of the respondents in denying disability pension

to the applicant is illegal. In this regard, he relied on the decision of the lionible Supreme Court in Dharamvir Singh v, Union of India and others, (2013)

7 SCC 316 and submitted that tor the purpose of determining attribuability of the disease to military service, what is material is whether the disability

was detected during the initial pre-commissioning medical tests and if no disability was detected at that time, then it is to be presumed Mat the

clisaJiiky arose while in service, therefore, the disability of the applicant ,s to be considered as aggravated by service and he is entitled to get disability

pension itti 40% for life and the same is to be broad bariL.td to 50%.

On the other hand, learned counsel for the respondents has filed the Counter Affidavit and submitted that though the RMB had assessed the

disability of the applicant © 40%, it opined that the disability is NANA. As such li.s claim for disability pension has rightly been rejected by the

c,,pondents. He submitted that the instant Original Application does not have any merit and the same is to be dismissed.

Having heard Lhe learned counsel for both the parties and perused the records, t1-1 uii;y question that needs to be answered is, whether the

disability of ilieapplicant is attributable to or aggravated by military service?

We have hoLucl that the only reason for which the disability has been opined as NANA by the RMB is that Ac per poo 24 of the chapter VI of

amended chapter VI & VII guide iv MO 2008'Le. origin of disease in p.o.ace area and not connected with service. The disability was first detected

on 19.07 2006 i e after more than 15 years of service. We are therefore of the considered opinion that the reasons given in RMB for declaring disease

as NANA is very brief and cryptic in nature and does not adequately explain the denial of attributability, Additionally we are of the opinion that it is not

correct to say that there is no stress and straln of military service in peace areas. Hence, we are inc1ired lo give benefit of doubt, in this case, to the

applicant. Thus it.r e are of the considered opinion that the disability `BILATERAL T1ET/NAL VASCULITIS WITH VITREOUS

HAEMORRHAGE (LT) EY: OPTD OLD H-34.01 H43.11, Z-09.011.3 to be = 1 -111 considered as agiL.3vcd by military service in line with the

law settled on this matter Li L Honible Apex Court in the case of Dharamvir Singh (sapra). Additionally, the applicant will also be eligible for the

benefit: ol Junding off to 50%, in terms of the decision of Honble Suprc;iile Loud in Union of India and others v. Ram A vtar (Civil Appta L. 418 of

2012 dated 10.12.2014).

Resultantly, the G.A. is allowed, The impugned orders are set aside. The applicant's disability disability 'BILATERAL RETINAL VASCULITIS

WITH vr:RE.ous HAEMORRHAGE (LT) EYE OPTD OLD H-34.0, H43111 -4-09.1L;' 40') 0 for life, is to be considered as aggravated by military

seni;cc arid his disability element of pension is to be rounded off fro.n 2..6./0 to 50% for life from the date of discharge. However consIct:ifig the fact

that the 0.A has been admitted after condoriuelay and lathes, therefore, in view of the decision of the I-lontle Supreme Court in Shiv Doss vs. Union

of India and others(2007 (3) SLR 445), the arrears will be restricted up to a period of three years preceding the date of filing of the 0.A. The date of

filing of this 05.05.2017. Ordered accordingly. To be implemented by the resrnle.nts within four months from the date of receipt of a copy of this

orc]er. Default will invite interest © 8% per annum.

No order as to costs.