Raj Kumar Nagar vs Union Of India And Others

Counter affidavit has already been filed. The applicant does not want to file rejoinder as stated by the counsel for the applicant.

Arguments heard.

Vide separate order, OA stands disposed of.

M.A. No. 2287 of 2018:

Heard learned counsel for the parties on the point of delay. Delay of 3827 days in filing the OA has been explained by the applicant. Keeping in view

the averments made in the MA and finding the same to be bonafide and in the light of the decision in Union of India and others Vs. Tarsem Singh

[2008 (8) SCC 648], we allow the instant MA and condone the delay in filing the OA. However, in case the applicant succeeds in the matter, he will

be entitled to the arrears restricted to three years prior to the date of filing the OA.

Accordingly, M.A. No. 2287 of 2018 stands disposed of.

O.A. No. 2081 of 2018:

The applicant, having been found medically and physically fit, was enrolled in the Indian Air Force on 29.07.1988. The applicant was discharged from

service on 31.07.2008 in low medical category of A4G2 (P). The Release Medical Board (RMB) assessed the applicant's disability, 'PRIMARY

HYPERTENSION' @ 30% for life, but the disability was held as 'neither attributable to nor aggravated by military service' (NANA)'.

Learned counsel for the applicant contended that the instant matter is squarely covered by a catena of decisions of the Honble Supreme Court

including Dharamvir Singh Vs. Union of India (2013) 7 SCC 31,6 Union of India Vs. Chanderpal, Union of India Vs. Rajbir Singh (2015) 12 SCC 26,4

Union of India Vs. Angad Singh Titaria (2015) 12 SCC 257, Union of India Vs. Manjeet Singh (2015) 12 SCC 27,5 Ex Hay Maniram Bharia Vs.

Union of India, Satwinder Singh Vs. Union of India, Ex Gnr Laxmanram Poonia Vs. Union of India (2017) 4 SCC 69 7F.urther, the claim of the

applicant is also supported by relevant rules.

Per contra, learned counsel for the respondents contended that the applicant is not entitled to the relief claimed since the RMB, being an Expert

Body, found the disability ""Neither Attributable to Nor Aggravated by Military Service"".

The issue in this case is as to whether 'Primary Hypertension' can be considered as aggravated if it occurs while serving in field areas. As per

amendment to Chapter VI of 'Guide to Medical Officers (Military Pensions), 2008 at Para 43, Primary Hypertension will be considered aggravated if

it occurs while serving in Field areas, HAA, CIOPS areas or prolonged afloat service. The same reads as under :

Hypertension - The first consideration should be to determine whether the hypertension is primary or secondary. If (e.g. Nephritis), and

it is unnecessary to notify hypertension separately.

As in the case of atherosclerosis, entitlement of attributability is never appropriate, but where disablement for essential hypertension appears

to have arisen or become worse in service, the question whether service compulsions have caused aggravation must be considered. However,

in certain cases the disease has been reported after long and frequent spells of service in field/HAA/active operational area. Such cases can

be explained by variable response exhibited by different individuals to stressful situations. Primary hypertension will be considered

aggravated if it occurs while serving in Field areas, HAA, CIOPS areas or prolonged afloat service.

Thus, in our view, 'Primary Hypertension' can be considered as aggravated if it occurs while serving in field areas etc. Admittedly, the applicant

was serving in field area at the time of onset of the disease 'Primary Hypertension' i. e. August, 2003, as mentioned in Board proceedings (Page 29 of

OA).

Even otherwise, in Dharamvir Singh's case (supra), the Honble Supreme Court held that any disability sustained during the course of Military

Service will be attributed to service conditions unless the disability was such that the disease could not have been detected on medical examination

before a person is selected for Defence Service and furthermore before arriving at a conclusion, the Release Medical Board should have assigned

reasons, in writing, that the disability was not due to Military Service. There is no dispute with regard to the fact that when the applicant entered into

service, he was not suffering from any disease and that the disability in question was detected/sustained only during the course of his Military Service.

The matter for implementation of orders of the Hon'ble Supreme Court in the matter of Dharamvir Singh (supra) in respect of Armed Forces

Personnel in NANA cases was taken up with the Department of Expenditure, Ministry of Finance for consideration. Accordingly, Ministry of

Defence by their letter dated 29th June, 2017 sent to the Chief of Staff of Army, Navy and Air Force for implementation of the orders of Honble

Supreme Court, has laid down the following essential parameters for allowing disability pension:

I. The question whether a disability is attributable or aggravated by military service is to be 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. 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 for military service, a disease which has laid to an

individual's discharge or death will 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 be deemed to have arisen during service, the medical board is required to state the reasons.

In light of the preceding paragraphs and essential parameters given aforesaid, we hereby set aside the impugned order rejecting the claim of the

applicant for disability pension and hold that he is entitled to disability element of pension from the date of his discharge @ 30% for life, which is to be

broad-banded to 50% in light of the judgment of the Hon'ble Supreme Court in Union of India and Ors. Vs. Ram Avtar [Civil Appeal 418 of 2012]

decided on 10th December, 2014.

Accordingly, the respondents are directed to release the arrears within a period of six months from the date of receipt of a copy of this order, failing

which, the arrears shall carry interest at the rate of 6% per annum.

Since the applicant has come to this Tribunal after a considerable delay, hence the arrears are restricted to three years preceding to the date of

filing of the OA i.e. 11.12.2018.

The OA stands disposed of in the above terms with no order as to costs.