Rajnesh Kumar vs Union Of India And Others

Counter affidavit has been filed by the respondents.

Applicant does not want to file rejoinder .

It is stated by counsel for the applicant that although the applicant was suffering from two disabilities. However, he presses only for disability Primary

Hypertension which was assessed at 30% but was opined as NANA. It is stated that the case is squarely covered by number of judgments which is

not disputed by counsel for the respondents. As such vide separate order. OA stands disposed off.

M.A. No. 1870 of 2019

Vide this MA, the applicant seeks condonation of delay of 580 days in filing the present OA. Keeping in view the averments made in the application

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 of 580 days in filing the OA.

M.A. No. 1870 of 2019 stands disposed of accordingly.

OA 1160/2019

Having been found medically and physically fit, the applicant was enrolled in the Indian Army on 24.11.1997 and was discharged from service on

30.11.2014. Before proceeding on discharge. the applicant was subjected to Release Medical Board (RMB). The Release Medical Board on

09.01.2014 found that the applicant was suffering from disabilities namely (1) Intra Articular Fracture Head of Proximal Phalanx (RT) Index Finger

and (2) Primary Hypertension assessed at 11% and 30% for life and composite assessment at 40% treating 1st disability as attributable for life and

2rd disability as neither attributable to nor aggravated by service.

Learned counsel for the applicant at the outset submitted that he confines his relief to disability Primary Hypertension. He further contended that

the instant matter is squarely covered by a catena of decisions of the Hon'ble Supreme Court including Dharamvir Singh Vs. Union of India and Ors.

(2013) 7 SCC 316, Union of India and Ors. Vs. Rajvir Singh (2015) 12 SCC 26 4and Union of India and Ors Vs. Angad Singh Titaria, (2015) 12 SCC

Further, the claim of the applicant is also supported by relevant rules.

3 Per contra, learned counsel for the respondents contended that the applicant is not entitled to the relief claimed since the Release Medical Board,

being an Expert Body. found the disability Neither Attributable to Nor Aggravated by Service"".

Having heard learned counsel on both sides, we are of the view that the case on hand is squarely covered by the decisions referred to herein above.

In Dharamvir Singh (supra) the Hon'ble 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 291hJune, 2017 sent to the Chief of Staff of Army. Navy and Air Force for implementation of the orders of Hon'ble

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. 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.

Ill. 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 the 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 at the rate of 30% for life,

which is to be broad banded to 50% per cent in the light of the judgment of the Hon'ble Supreme Court in Union of India and Ors. Vs. Ram Avtar

decided on 10'' December, 2014.

In view of the fact that there is delay on the part of the applicant in approaching the Tribunal, therefore, arrears are restricted to three years prior to

the filing of the OA which was filed on 19.07.2019.

The respondents are directed to release the arrears within a period of 4 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.

9 The O.A. stands disposed of in the above terms with no order as to costs.