Kritenda Tiwari vs Union Of India And Others

Heard learned counsel for the parties.

The matter stands disposed of in terms of the separate order.

MA 1183/2018

By way of the instant application, the applicant seeks condonation of delay of 450 days in filing the present O.A. In view of the law laid down by the

Hon'ble Supreme Court in the matter of Union of India and Ors. Vs. Tarsem Singh (2009) (1) AISLJ 371, delay in filing the OA is condoned.

OA 1250/2018

Heard learned counsel for the parties.

Challenge in this OA is to the order dated 24th April, 2017, vide which the appeal preferred by the applicant was rejected.

The facts germane to the filing of present OA are that the applicant was enrolled in the Air Force on 7th August, 1997 and released from service

on 31st August, 2017. At the time of his retirement, he was brought before duly constituted Release Medical Board, which viewed his disability i.e.

Primary Hypertension (Old) 1- 1 0,0, Z-09.0 for life at the rate of thirty per cent composite.

However, the, applicant was not granted Disability Element of Pension because the disability was not found attributable to nor aggravated by

service. The first appeal and the second appeal preferred by the applicant were rejected. Thereupon, the applicant filed the present OA claiming

Disability Element of Pension along with interest at the rate of twelve per cent per annum.

Learned counsel for the respondents, however, submitted that since the disability is neither attributable to nor aggravated by service, as such the

applicant is not entitled for the relief.

According to the applicant, the relief sought by him in the instant matter is squarely covered by a catena of decisions of the Hon'ble Supreme Court

including Dharamyir Singh Vs. Union of India (2013) 7 SCC 31,6 Union of India Vs. Chanderpal, Union of India Vs. Rajvir Singh (2015) 12 SCC 264,

Union of India Vs. Angad Singh Titazia (2015) 12 SCC 257, Union of India Vs. Manjeet Singh (2015) 12 SCC 275 ,Ex Hay Manirazn Bharia Vs.

Union of India, Satwinder Sing-h Vs. Union of India,E x Gnr Laxmanram Foonia Vs. Union of India (2017) 4 SCC 69 7According to the applicant, his

claim for disability pension is also supported by the applicable rules.

On the other hand, learned counsel for the respondents has contended that the claim put-forth by the applicant has been found to be 'Neither

Attributable to, Nor Aggravated by Military Seryice'by the Medical Board and, hence, he is not entitled to disability pension for the above disability,

since the opinion of the Medical Board, being an expert body, must be respected.

We have considered the submissions advanced by the learned counsel for both the parties in the light of the relevant rules and the judgment of the

Hon'ble Supreme Court rendered in Dharamvir Singh case (supra), which has been followed in subsequent decisions of the Hon'ble Supreme Court. In

Dharainvir Singh's case, it has, inter alia, been held as under:

I. The question whether a disability is attributable or aggravated by military SerViCC IS to he 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 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 he deemed to have arisen during service, the medical board is required to state the reasons.

The matter for implementation of orders of Hon'ble Supreme Court/AfTs in respect of armed forces personnel in NANA cases was taken up with

the Department of Expenditure, Ministry of Finance for consideration. Department of Expenditure had agreed to implement those orders, in fact, Govt.

of India, MoD letter F.No. 4(17)2015/D (Pen/Legal) dated 29.06.2017 was also sent to the Chief of Staff of Army, Navy and Air Force for

implementation of the judgment of Hon'ble Supreme Court in respect of Armed Forces Personnel in ""NANA"" (Neither Attributable to nor Aggravated

by military service) cases. However, no action was taken pursuant to this letter by the competent authority.

In fact, the Committee of Experts constituted by the Hon'ble Raksha Mantri while looking into the solutions for reducing litigations concerning the

Ministry of Defence and to put in place an efficient mechanism of redressal of grievances related to service and pension matters, inter alia,

recommended as follows :

Expert committee has recommended that whenever a legal principal is settled by a High Court or the Supreme Court, the same must be universally

applied to all similarly placed employees or at least on individual representations after examining the same, rather than forcing them into individual

litigation.

In this regard, attention is drawn to D(CMU)'s ID No. 7(9)/201 8/D(CMU) dated 26.06.2018 (copy enclosed). However, it is proposed that each case

may be decided on its merit, subject to consultation with Department of Expenditure and DOP&T having regard to financial implications.

It is undisputed case of the parties that when the applicant entered into the military service, he was not suffering from the above disability, which

leaves no manner of doubt that the disability accrued to him during the course of Military Service . Hence, following the principles laid down in

Dharamvir Singh (supra), it is apparent that the disability is attributable or aggravated by Military Service.

In view of the aforesaid judicial pronouncements and the parameters referred above, the applicant is entitled for Disability Element of Pension.

Therefore, OA is allowed and the applicant is granted Disability Element of Pension for disability, i.e., Primary Hypertension (Old) 1-10,0, Z-09.0 at

the rate of thirty per cent for life which is to be rounded off to fifty per cent from 1st September, 2017 in view of the Government of India, Ministry of

Defence letter No. 1(2)/97/D(Pen-C) dated 31st January, 2001 and the judicial pronouncement of the Hon'ble Supreme Court in the case of Union of

India Vs, Ram Avtar (Civi1 Appeal No. 418/201.Z) decided on 10th December, 2014.

The respondents are directed to calculate, sanction and issue necessary PPO to the applicant within four months from the date of receipt of this

order, failing which, applicant shall be entitled to interest at the rate of eight per cent per annum till the date of payment.

No order as to costs.