Gurnam Singh, Ex-Sepoy vs Union of India (UOI) and Others

Jawahar Lal Gupta, J.—The petitioner herein was enrolled as a Sepoy on December 18, 1962. While serving in the Army he got epileptic fits and as a result he was discharged from the ser vice on November 21, 1970. His repeated representations for the grant of disability pension having failed, he has approached this Court through the present petition.

In the written statement filed on behalf of the respondents the only plea raised is that the disease of epilepsy is not attributable to the Army service and as such no disability pension can be given to the petitioner. Mr. Ashutosh Mohanta, learned counsel for the respondents has further contended that the petitioner''s claim for the grant of disability pension was declined vide letter dated February 17, 1971 suffers from the vice of laches. On this twin ground, the claim of the petitioner is sought to be contested on behalf of the respondents.

So far as the preliminary objection regarding delay is concerned, it may be mentioned that no such plea has been raised in the written statement. In such a situation, I am not inclined to allow the respondents to defeat the claim of the petitioner oh the ground of delay. In any case, this shall be taken into consideration while granting substantive relief to the petitioner.

The grant of disability pension is covered by the provision of Regulation 173 of the Pension Regulations for the Army, 1963. This provides as under :-

"173. Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided 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 rules in Appendix II."

The question as to whether or not the disability is attributable to the military service has to be determined in accordance with the provision of Appendix-II. The relevant entry in Appendix-II is contained in paragraph 7(b), which reads as under :--

"Paragraph 7 (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."

A perusal of paragraph 7 (b) as reproduced above would show that a disease which leads to an individual''s discharge is deemed to have arisen in service if "no note of it was made at the time of the individual''s acceptance for military service." This is precisely the position in the present case. No note was made at the time of the petitioner''s entry into service that he was suffering from any disease, like epilepsy. Further more, there is nothing before me to indicate that the disease could not have been detected on medical examination prior to acceptance for service. Inevitably, it must follow that the disability from which the petitioner is suffering and has led to his discharge is attributable to military service. As a result, the petitioner''s claim for the grant of disability pension has to be sustained.

Consequently, the writ petition is allowed. It is held that the petitioner is entitled to the grant of disability pension. Keeping, in view the fact that the petitioner''s claim for the grant of pension was declined in the year 1971 and the writ petition has been actually filed in the year 1989, I am of the opinion that the payment of arrears of pension should be confined to a period of three years prior to the date of the filing of the writ petition Consequently, the arrears on, account of disability pension shall be paid to the petitioner with Meet from June, 1986. In the circumstances of the case, I make no order as to costs.