Mr. Bhim Sen Sehgal vs Mr. Gurpreet Singh

R.L. Anand, J.—Ex-Subedar Garja Singh has filed this writ petition under Articles 226 and 227 of the Constitution of India for the issuance of a writ of certiorari vide which he has sought the quashment of the orders Annexures P-8 and P-15 by which the case of the petitioner for disability pension was declined and the petitioner has further prayed for a suitable direction to the respondents to release him the benefit of disability pension.

The case set up by the petitioner is that he was born on 4.8.1948. He was enrolled in the Territorial Army after having been found medically fit in the medical category "AYE". The petitioner was sent for training to Ambala Cantt. and then he was allocated to 102 Inf Bn (TA) Kalka and remained attached with the same. He remained posted at various places. Then the petitioner was promoted to the post of Naik, Hayildar, Naib Subedar and Subedar. On every promotion he was examined by the Medical Board and he was found fit upto 1990-91. In the year 1991 the petitioner suffered from Essenlial Hypertension when he was posted at Bathinda. The petitioner was called for service in the territorial army from 1991 to 1996. He remained admitted in Command Hospital Chandimandir when he suffered the disease of Essenlial Hypertension in February, 1996. In March, 1996, he was sent to Sri Nagar. The petitioner again suffered the above disease when he was posted there and he was again sent to Command Hospital Chandimandir where he was downgraded in the medical category CEE(T). His disability was assessed at 40%. According to the petitioner the disease suffered is attributable and aggravated to the Army Service and therefore the respondents are liable to release him the benefit of disability pension.

Notice was given to the respondents who filed the written statement. According to the respondents, the disease suffered by the petitioner is not attributable or aggravated to the Army Service but it is a constitutional one. The petitioner has not given the essential particulars in the writ petition so as to make out a case that the disability suffered by him is attributable or aggravated to the Army Service. Moreover, as per the opinion of the medical authorities 20% and not 40% is the disability assessed. With this defence, the respondent authorities have prayed for dismissal of the petition.

I have heard the learned counsel for the parties and with their assistance I have gone through the record,

The short point for determination in this case is whether the disease suffered by the petitioner is attributable or aggravated to the Army Service or it is a constitutional one. It is the common case of the parties that when the petitioner joined the Army Service, he was examined medically by the Medical Board and was placed in category "AYE". At the time of discharge he was downgraded in the medical category of CEE(T). We all know that a jawan while in the Army Service is supposed to perform arduous nature of duties. He is posted in different types of climates, different types of stations and such like diseases are invariably suffered by the jawans while serving in the Army. In this view of the matter, I hold and decide that the disease suffered by the petitioner is attributable and aggravated to the Army Service. Faced with this difficulty, the learned counsel for the respondents has invited my attention to Union of India v. Baljeet Singh 1997(1) SLR 98 : 1997(1) SCT 386 (SC) and submits that in each case where disability pension is sought and army personnel makes claim for disability pension he must affirmatively establish as a fact as to whether the injury sustained was attributed to the Army Service. Learned counsel for the respondents has further relied upon a judgment of the Kerala High Court dated 22.3.2000 and submits that the initial burden is upon the petitioner to show that the disability suffered by him is attributable to the Army Service. Having gone through the above authorities, I find that these are distinguishable on facts. There is no dispute that the initial responsibility lies upon the petitioner who claims the benefit of disability pension. Because the petitioner has come in the Court therefore he is to show that he suffered the disability when he was in the Army Service, In the above noted case the only ratio which was given by their Lordships was that in such like cases, the petitioner must make a claim in affirmative and establish as a fact that he suffered disability. In the present case, it has been proved on record that the petitioner suffered disability when he was in the Army Service. He was initially found fit by the Medical Board which takes complete test about every organ of the body of the candidate. It is not established on record that any intervening circumstance has happened which might be responsible for the disease suffered by the petitioner.M

In this view of the matter, I hold that the disease suffered by the petitioner is attributable and aggravated to the Army Service and therefore he is entitled to disability pension. The benefit of disability pension be released to the petitioner within 3 months from the date of receipt of the copy of this order failing which the petitioner shall be entitled to interest @ 12%. There shall be no order as to costs. The petitioner shall appear before the re-survey the Medical Board as and when called by the respondent authorities.

Petition allowed.