Girja Dutt Dabral vs Union Of India And Others

Aggrieved by the order of denial for grant of disability pension, the applicant has filed the instant 0.A seeking the following reliefs:

(a) To direct the respondents to place all medical records including medical boards and Release Medical Board conducted by the respondents.

(b) To quash the letter dated 03.02.2017, 11.10.2017 denying disability pension to the applicant.

(c) To direct the respondents to grant disability pension to the applicant from the date of retirement i.e. 01.11.2016 in view of the above mentioned

circumstances and as per settled law with regard to grant of disability pension.

(d) To grant the broad banding of disability pension from 30 to 50% from the date of release i.e. 01.11.2016.

(e) To direct the respondent to pay 12% interest on the arrears of pension and other benefits.

(f) To grant such other relief appropriate to the facts and circumstances of the case as deemed fir and proper.

The facts of the case, in brief, are that the applicant was commissioned in the Indian Air Force on 19.12.1992 and retired from service on

31.10.2016 in low medical category after rending almost 24 years of service. The Release Medical Board (RMB) held at Air Force Station, New

Delhi on 16.08.2016, assessed his disabilities (i) 'Primary Hypertension (Old) (ICD No I 10.0, Z09.0)' © 30% and (ii) 'Dyslipidemia (Old) (ICD No-

Z-09.0)' 1-5 %, composite assessment for both the disabilities was @ 30% for life. However, the RMB opined that the disabilities of the applicant

were neither attributable to nor aggravated by military service (NANA) and onset of the disabilities was in peace station. The applicant's claim for

grant of disability pension was not granted by the respondents vide order dated 03.02.2017 and his first appeal was also rejected by the respondents

vide order dated 11.10.2017. Hence the instant Original Application, 3. Learned Counsel for the applicant submitted that the applicant was medically

fit when he was enrolled in the 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 not granting disability pension to the applicant is illegal. In this regard, he relied on the decision of the Hon'ble

Supreme Court in Dharamvir Singh v. Union of India and others, (2013) 7 SCC 316 and submitted that for the purpose of determining attributability 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 that the disability arose while in service, therefore, the disabilities of the applicant are to

be considered as aggravated by service and he is entitled to get disability pension @ 30% for life and the same is to be broad banded to 50% for life.

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

disabilities of the applicant @ 30% composite, it opined that the disability is NANA and onset of the disabilities was in peace area. As such his claim

for disability pension has rightly been rejected by the respondents. He submitted that the instant Original Application does not have any merit and the

same is to be dismissed.

We have heard Ld. Counsel for the applicant as also Ld. Counsel for the respondents. We have also gone through the Release Medical Board

proceedings as well as the records. The question which needs to be answered is straight and simple i.e. Whether the disabilities of the applicant are

attributable to or aggravated by Military Service?

After going through the opinion of RMB, we have noted that the second disability i.e. 'Dyslipidemiaa' has been opined as NANA by the RMB in

light of the facts that this disease is a metabolic disorder, hence we are of the opinion that benefit of doubt in this disease cannot be given to the

applicant and we agree with RMB opinion that this disease is NANA. As far as first disability i.e. 'Primary Hypertension' is concerned, we have

noticed that the only reason for declaring the disease as NANA is that it has originated in peace area and has no close time association with

Fd/HAA/CI Ops tenure. However, on further scrutiny, we have observed that this disability was initially detected in about 18 years of service. We are

therefore of the considered opinion that the reasons given in RMB for declaring diseases as NANA are very brief and cryptic in nature and do not

adequately explain the denial of attributability. We don't agree with the view that there is no stress and strain of service in military stations located in

peace areas. Hence, we are inclined to give benefit of doubt in favour of the applicant. Thus we are of the considered opinion that second disability ie.

Primary Hypertension"" @ 30% is to be considered as aggravated by military service in line with the law settled on this matter by the Hon'ble Apex

Court in the case of Dharamvir Singh (supra).

Additionally, the applicant will also be eligible for the benefit of rounding off of first disability from 30% to 50% for life in terms of the decision of

Hon'ble Supreme Court in Union of India and others 14 Ram Avtar (Civil Appeal No 418 of 2012 dated 10.12.2014).

Resultantly, the O.A. deserves to be partly allowed, hence partly allowed. The impugned orders are set aside. The applicant's disability ""Primary

Hypertension"" @ 30% for life, is to be considered as aggravated by military service and his disability element of pension is to be rounded off from

30% to 50% for life from the date of his retirement i.e. 01.11.2016. Ordered accordingly. To be implemented by the respondents within four months

from the date of receipt of a copy of this order. Default will invite interest @ 6% per annum.

No order as to costs.

Pending application(s), if any, also stand disposed off.

Pronounced in the open Court on 6th March, 2020.