Jagan Nath vs Union of India

Tashi Rabstan, J.—Petitioner was enrolled in J & K Light Infantry Regiment (Indian Army) on 25.09.1982. He was invalidated out of

service on 23.12.1995 on medical grounds. The Medical Board, according to the petitioner, declared him as a case of ""Depressive Disorder"",

assessed his disability as 40%, and placed him in a Medical Category EEE. He, immediately thereafter was boarded out; whereafter he

approached respondents with an application for grant of disability pension. However, the respondents avoided to take any decision on his

application and the representations filed from time to time till the petitioner was constrained to invoke, through the medium of petition on hand, writ

jurisdiction of this Court. He seeks a Writ of Mandamus commanding respondents to grant him disability pension with effect from 23.12.1995 with

interest @ 18% per annum. Petitioner's case is that he was hail and healthy, free from any disability or disease at the time of his enrolment in Army.

He insists that the disease ""Depressive Disorder"", detected more than 13 years after he was enrolled, was clearly attributable to and aggravated by

the Military Service. Petitioner, in the body of the petition, has referred to the Army Pension Regulations and in particular Regulation, 173 to

reinforce his claim for disability pension.

It is further contended that respondents have rejected the claim of the petitioner without going through the record and opportunity of being heard

was not given to the petitioner.

The writ petition is resisted by the respondents on the grounds that as the disability detected was found by Army Medical Board to be neither

attributable nor aggravated by military service but a constitutional disorder, the petitioner was not entitled to disability pension. It is further stated

that the petitioner was hospitalized number of times before his invalidating by Medical Board for the same disease but the Medical Board held at

167 Military Hospital on 14.11.1995 which was approved by ADH & Senior Advisor (PSM), HQ NC on 02.12.1995, considered the disease of

the petitioner as constitutional in nature and neither attributable to nor aggravated by military service.

4-5. I have gone through the pleadings, perused the record available on the file and have heard learned counsel for the parties.

The short question involved in the writ petition is whether the impugned rejection order came to be passed rightly or not and whether the

petitioner is entitled to disability pension or not? It is beaten law of land that Army personnel is entitled to disability pension if the disease(s) is/are

incurred during active service. The opinion of the Medical Board has great importance in this regard. Thus, I perused Part HI, opinion of the

Medical Board. At S. No. 1, it is contended that ""Did the disability/ies exist before entering service?...No. It is not the case of the respondent that

the petitioner was having such disease before his entering into service. It is also not the case of the respondent that it was not possible for the

Medical Board to detect such disease at the time when the petitioner was entered into service.

Another ground for rejection of the case of the petitioner by the respondent is also stated that the petitioner's case does not meet the eligibility

conditions for grant of disability pension as envisaged under Rule, 173 of the Pension Regulations for the Army, 1961, Part I.

Rule, 173 reads as under:--

Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual

who is invalidated out of service on account of disability which is attributable to or aggravated by military service in non-battle causality 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.

Plain reading of Rule would provide for grant of disability pension in favour of an individual who is invalidated out of service on account of

disability attributable to or aggravated by the military service. One of the conditions for grant of disability pension as per above mentioned Rule is

that if the individual is assessed at 20% or above disability, whereas in the instant case the Medical Board has assessed 40% disability for two

years. Rule further provides that attributability or aggravation by military service has to be determined under Rule in Appendix II.

Rule 5 reads as under:--

The approach to the question of entitlement to causality pensionary awards and evaluation of disabilities shall be based on the following

presumptions:--

PRIOR TO AND DURING SERVICE:

(a) A member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or

recorded at the time of entrance.

(b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due

to service.

In terms of Rule 5, refer hereinabove, when a member has been enrolled and no physical disability is noted or recorded at the time of entrance,

he is presumed to have been in sound physical and mental condition. Thus, the instant case of the petitioner is covered by the said Rule because

admittedly on selection and enrolment, petitioner was medically examined, no note was recorded about any disability, therefore, he is presumed to

have been physically sound and his subsequent disease or deterioration in health is treated to be due to service.

The aforesaid Rule is controlled by Rule 14 of the said Rules which read as under:--

In respect of disease, the following Rule will be observed:--

(a) Case 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 courses of the disease will fall for acceptance on the basis of aggravation.

(b) A disease which has led to an individual's discharge or dealt with 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.

Sub-rule (b) would provide that in case Medical opinion holds, for reasons to be stated, that the disease could not have been detected prior to

acceptance of service, the disease will not be deemed to have arisen during service. While going through the record annexed with the objections,

there is no such medical opinion to indicate that the disease could not have been detected on medical examination prior to acceptance of service.

Sub-rule (a) of Rule 14 provides that in case it is established that the conditions of military service did not contribute to the onset of the disease but

influenced the subsequent courses of the disease, same will fall for acceptance on the basis of aggravation.

In me instant case, even if submissions is accepted that petitioner was suffering from disease which was constitutional and onset of the disease was

not by the condition of military service but it has to be accepted that the aggravation has influenced the subsequent course of the disease which in

turn would entitle the petitioner to grant of disability pension under the aforesaid Rules.

While going through the record as made available by learned counsel for the parties, there is no such medical opinion to indicate that the

disease could not have been detected on medical examination prior to acceptance of service. This issue has already been settled by Hon'ble the

Division Bench of this Court in case titled as ""Union of India v. Rattan Lal"", 1992 (2) SCT 39.

For the reasons discussed above, the impugned order is illegal and came to be passed in violation of the Pension Regulations for the Army,

1961. Accordingly, it is quashed and the respondents are directed to consider the case of the petitioner for grant of disability pension within a

period of three months from the date a copy of this order is served upon the respondents by the petitioner. Disposed of.