Naresh Chand vs Union of India

R.L. Anand, J.—Shri Naresh Chand, petitioner, has filed the petition under Articles 226/227 of the Constitution of India and he has prayed that a writ in the nature of certiorari be issued by quashing the order, Annexure P-3, passed by respondent No. 3, vide which the claim of the petitioner for grant of disability pension has been rejected. According to the petitioner, these orders are illegal, ultra vires, void, arbitrary and discriminatory in nature. The petitioner has further sought the direction that respondents be directed to grant him the benefit of disability pension from the date of his discharge from the army service, besides interest.

The case set up by the petitioner is that his date of birth is 25.9.1972. He was enrolled in the army on 28.8.1992. He was invalidated out of service on 29.1.1995 when he was placed in medical category "EEE". He was boarded out from the service on the ground that he was suffering from permanent disability of "Generalised Seizure". The petitioner made several representations to the respondents for the grant of disability pension but vide order dated 17.1.1996, the petitioner was informed that his case for grant of disability pension is under consideration. The hopes of the petitioner dashed to the ground when on 24.2.1996, he received an intimation from respondent No. 3 that his case for disability pension has been rejected because the disability "Generalised Seizure" is neither attributable to the army service nor it aggravated by the military service. The petitioner preferred an appeal on 14.3.1996 but to no effect. He sent a reminder. Hence the present writ petition.

Notice of the writ petition was given to the respondents who filed the reply and denied the allegations. According to the respondents, the disability "Generalized Seizure-345" of the petitioner was considered by the duly constituted Board of Doctors and they gave the opinion that this disease was neither attributable nor aggravated to the military service because the disease was organic in nature and had no concern with the service. Respondents, however, admits one thing that the disability of the petitioner was assessed at 20%.

I have heard Shri Ashish Aggarwal, learned counsel appearing on behalf of the petitioner and Shri Kamal Seghal, learned counsel appearing on behalf of the respondents and with their assistance have gone through the record of this case.

When the petitioner was taken into army service, he was found hale and hearty. He was placed in medical category "A". It is the common case of the parties that the petitioner was invalidated out of service on medical ground within three years of his service. This short period of three years itself suggests that the disease suffered by the petitioner must be attributable to the army service. A young man, i.e. the petitioner, who was found hale and hearty in the year 1992, has been placed in medical category "EEE" permanent with a disease of "Generalized Seizure-345." We all know that the training of the military service is very hard. It has not been shown to me during the course of submissions by the learned counsel for the respondents that at the time of the appointment of the petitioner into service the Medical Board found any type of disability with him. The contention of the learned counsel for the respondents is that it is for the petitioner to establish prima facie that the disease is attributable to the army service. The onus lies upon him and in the absence of the discharge of the onus, the petitioner cannot be granted the benefit of the disability pension as per the ratio of the Hon''ble Supreme Court in case Baljit Singh v. Union of India, reported as 1997 (1) SLR 98.

On the contrary, learned counsel for the petitioner submitted that in this case the petitioner has been able (o discharge the onus when it has been shown on the re- cord that petitioner was not suffering from any disability or disease at the time of his entry into army service. No intervening circumstance has cropped up from which it may be inferred that petitioner has suffered any disability or injury which is responsible for this disease.

After considering the rival contentions of the parties, I am of the opinion that the disease suffered by the petitioner i.e. "Generalised Seizure" is attributable to the army service. The disease is not constitutional in nature. The petitioner was fully found fit at the time of his entry into army service. He has been invalidated put from the service on medical ground. Therefore, he is entitled to the benefit of disability pension from the date of his discharge from the service.

Resultantly, the writ petition is allowed and directions are given to the respondents to release the disability pension of the petitioner from the date of his discharge from the service, within three months from the receipt of the copy of this order, failing which, the respondents shall also pay interest at the rate of 12% per annum. There shall be no order as to costs. The petitioner shall appear before the Re-survey Medical Board as and when called upon by the respondent-authorities.

Petition allowed.