H.K. Sharma vs Union Of India And Others

Arguments heard.

Vide separate order, OA stands disposed off.

MA 994/2017

Vide this MA the applicant seeks condonation of delay of 4474 days in filing the present OA. Keeping in view the averments made in the application

and finding the same to be bonafide and in the light of the decision in Union of India and others Vs. Tarsem Singh [2008 (8) SCC 648]. we allow the

instant MA and condone the delay of 4474 days in filing the OA.

M.A. No. 994 of 2017 stands disposed of accordingly.

OA 1343/2017

Having been found medically and physically fit, the applicant was commissioned in the Indian Army on 17.12.1961 and was superannuated from

service on 30 11 1996. Before proceeding on discharge the applicant was subjected to Release Medical Board(RMB). The Release Medical Board

found that the applicant was suffering from disability namely (1) IHD(DVD) POST CABG DONE(BIMA) CLASS 1-411 (2) NIDDM-250 and

assessed at 30% for life treating it as neither attributable to nor aggravated by service.

Learned counsel for the applicant contended that the instant matter is squarely covered by a catena of decisions of the Hon.ble Supreme Court

including Dharamvir Singh Vs. Union of India and Ors. (2013) 7 SCC 316, Union of India and Ors. Vs. Rajvir Singh (2015) 12 SCC 264 and Union of India

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

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

being an Expert Body. found the disability ""Neither Attributable to Nor Aggravated by Service"".

Having heard learned counsel on both sides, we are of the view that the case on hand is squarely covered by the decisions referred to herein above.

In Dharamvir Singh (supra) the Hon'ble Supreme Court held that any disability sustained during the course of Military Service will be attributed to

service conditions unless the disability was such that the disease could not have been detected on medical examination before a person is selected for

Defence Service and furthermore before arriving at a conclusion the Release Medical Board should have assigned reasons, in writing, that the

disability was not due to Military Service. There is no dispute with regard to the fact that when the applicant entered into service, he was not suffering

from any disease and that the disability in question was detected/sustained only during the course of his Military Service.

The matter for implementation of orders of the Hon'ble Supreme Court in the matter of Dharamvir Singh (supra) in respect of Armed Forces

Personnel in NANA cases was taken up with the Department of Expenditure.M inistry of Finance for consideration. Accordingly, Ministry of

Defence by their letter dated 29th June. 2017 sent to the Chief of Staff of Army. Navy and Air Force for implementation of the orders of Hontle

Supreme Court, has laid down the following essential parameters for allowing disability pension:

I. The question whether a disability is attributable or aggravated by military service is to be determined under ""Entitlement Rules for

Casualty Pensionary Awards 1982.

II. A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time

of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be

presumed due to service.

III. If no note of any disability or disease was made at the time of individual's acceptance for military service, a disease which has laid

to an individual's discharge or death will be deemed to have arisen in the service.

IV. If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service

and that disease will not be deemed to have arisen during service, the medical board is required to state the reasons.

In the light of the preceding paragraphs and essential parameters given aforesaid. we hereby set aside the impugned order rejecting the claim of the

applicant for disability pension and hold that he is entitled to disability element of pension from the date of his retirement at the rate of 30% for life,

which is to be broad banded to 50% per cent in the light of the judgment of the Hontle Supreme Court in Union of India and Ors. Vs RamA vtar

decided on 10 December, 2014

In view of the fact that there is delay on the part of the applicant in approaching the Tribunal. therefore. arrears are restricted to three years prior

to the filing of the OA which was filed on 02.08.2017.

The respondents are directed to release the arrears within a period of 4 months from the date of receipt of a copy of this order, failing which the

arrears shall carry interest at the rate of 6 °A per annum.

The 0.A. stands disposed of in the above terms with no order as to costs.