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Judgment
Swatanter Kumar, J.—On 13.06.1974, the petitioner was enrolled in the Indian Army Bombay Engineer Group. He was subjected to
medical and physical tests of stringent standards and was found fit in all respects and in medical category ''AYE'' in accordance with medical rules.
The petitioner had an unblemished service record and he performed his service without any physical disablement and because of his sincere work,
he was promoted to the rank of Subedar on merit. During his tenure, he was posted at various stations of high altitude border areas and was
exposed to stress and strain of service. During this long span of service career, in the year 2000, the 26th year of his service when the petitioner
was performing his duties at Bikaner soon after his posting from Operation Rakshak (Jammu and Kashmir), he was detected as a case of Niddm
and his medical category was downgraded by a duly constituted medical board. He was given treatment but in July, 2001, the petitioner was
diagnosed with ''Acute Anterior Wall Myocardial Infraction''. As a result of the above diseases, the petitioner was discharged from service under
Rule 13(3) Item (I) iii on 31.5.2002, after putting in nearly 28 years of service. The petitioner, thus, during the course of service, claims to have
suffered both the above diseases despite which the petitioner was not granted disability pension as neither attributable to nor aggravated by military
service. According to the petitioner, he had an excellent service career of 27 years 11 months and 17 days right from the year 1974 till the year
2002 when he was invalided/discharged under permanent low medical category. The petitioner pursued his case for grant of disability pension
which was rejected on the basis of the opinion of the Medical Advisor (Pension) who according to the petitioner never examined the petitioner.
This was again of no effect and consequence. Against the rejection of the disability pension, the petitioner filed an appeal on 2.5.2003 on which no
decision had been taken by the respondents for a considerable time, resulting in filing of the present petition wherein the petitioner prays that the
order dated 21.2.2003, annexure P3 to the writ petition, be quashed and the respondents be directed to pay disability pension to the petitioner
and also its arrears with interest @ 18% per annum. According to the petitioner, his appeal has not been decided by the competent authorities
despite the fact that it has been pending with the said authorities for more than an year.
Be that as it may, the counsel for the petitioner has relied upon the recent judgments of a Division Bench of this Court in the cases of Sh. Navin
Chandra v. UOI and Ors. 2006 (VII) AD (Delhi) 709, Ex. Cfn. Sugna Ram Ranoliya v. UOI and Ors. 132 (2006) DLT 544 and JC
264149M.Ex. Naib Sub Marut Sharan Tiwari v. UOI and Ors. 2006 (VII) AD (Delhi) 410 to contend that the case of the petitioner is squarely
covered for grant of disability pension as the disabilities of the petitioner are certainly attributable and in any case aggravated by military service. It
is also contended by the counsel for the petitioner that the Medical Advisor to the Pension Authorities had no jurisdiction to reject the claim of
disability of the petitioner. The order of the respondents rejecting the claim of the petitioner besides being arbitrary is entirely against the army rules
and regulations.
Despite number of opportunities, no counter affidavit was filed on behalf of the respondents. Records were also not produced before us.
Vide letter dated 21.2.2003, the respondents had rejected the claim of the petitioner in regard to both disabilities as being not attributable to or
aggravated by military service. It is contended on behalf of the petitioner that Rules 5 and 14 of the Entitlement Rules for the Causality Pensionary
Award, 1982 clearly provide that a member is presumed to have been in sound, physical and mental condition while entering into the service and if
he is discharged on medical grounds, while evaluating the disability, presumption would be that such disability and deterioration has taken place in
due service. Keeping in view the presumption under these Rules and that the diseases are also specified in Schedule 1 of Annexure 1 to Regulation
173, the petitioner is entitled to receive the disability pension. The petitioner has specifically averred in his petition that when AFMSF-81 was filled
for discharge to report the circumstances of invaliding diseases were stated to be attributable to military service. Even otherwise, a person who has
served the army for a period of 25 years without any ailment, even in common way of living, the disease of IHD would be attributable to and, in
any case, aggravated by military service. The principles enunciated in the afore-stated judgments would certainly come to the rescue of the
petitioner and would squarely apply to the case of the petitioner. We are unable to accept the contention of the respondents that the disabilities of
the petitioner were not attributable to or aggravated by military service. Once the disabilities of the petitioner were more than 20% and were
attributable to and/or aggravated by military service, the petitioner would be entitled to receive the disability pension. The petitioner has
approached the respondents on the earliest occasion and has requested them to grant him the disability pension but his claim for the same was
rejected by the respondents and the appeal preferred against rejection has not been decided till date. We are unable to sustain the order dated
21.2.2003 passed by the respondents rejecting the claim in regard to disability pension of the petitioner.
For the detailed reasons recorded by the court in the cases of Sh. Navin Chandra v. UOI and Ors. and Ex. Cfn. Sugna Ram Ranoliya v. UOI
and Ors. (supra), we have no hesitation in accepting the claim of the petitioner. Consequently, this petition is allowed. The order dated 21.2.2003
is set aside and the respondents are directed to grant to the petitioner disability pension in accordance with rules within three months from the date
of passing of this order.
The writ petition is disposed of while leaving the parties to bear their own costs.