Union of India and Others vs Sukhdev Singh

Tashi Rabstan, J.

For the reasons detailed in the application, the prayer made in it is allowed and the delay in filing the appeal is condoned. Application stands

disposed of.

With the consensus of learned counsel appearing for the parties, the appeal is taken up on board and is taken up for final disposal.

LPASW No. 119/2014

This Appeal is directed against the judgment dated 26.08.2013 passed by the Writ Court in SWP No. 786/2006 filed by the respondent herein,

whereby the learned Single Judge while allowing the writ petition directed the appellant-Union of India to work out and release the disability

pension in favour of respondent-Sukhdev Singh. The facts in brief are that the writ petitioner-Sukhdev Singh was recruited in the Army as a Sepoy

in the year 1978. Thereafter, with the passage of time he earned promotions as Lance Naik in the year 1988, Naik in the year 1991, Havildar in

the year 1997 and finally came to be promoted as Naib Subedar (JCO) in the year 2003 when he was posted at Machhail Sector in Jammu &

Kashmir. During his posting at Machhail Sector he was found to be suffering from Cataract Left Eye by 167, Military Hospital. Thereafter he was

examined by the Medical Board and his disability was assessed at 30%. Since the disability of writ petitioner was assessed at 30%, he was

discharged from Army in the year 2005. Writ petitioner represented the respondents for release of disability pension under Regulation 173 of

Pension Regulations for the Army, 1961. However, the claim of writ petitioner was rejected by the Officer Incharge, PCDA(P), Allahabad vide

order dated 30.09.2005, impugned before the Writ Court on the ground that the disease of writ petitioner was neither attributable to nor

aggravated by military service. Feeling aggrieved, the writ petitioner filed SWP No. 786/2006 before the Writ Court seeking quashment of

impugned order dated 30.09.2005 and directing the writ respondents to release disability pension in his favour.

Learned Writ Court vide judgment/order dated 26.08.2013 set aside the order dated 30.09.2005 and directed the respondents to work out

and release the disability pension in favour of petitioner. Hence the Union of India has challenged the order of Writ Court by the medium of present

Letters Patent Appeal.

Heard learned counsel appearing for the parties and perused the writ record.

The contention of learned counsel for appellant-Union of India is that the Release Medical Board after examining the writ petitioner opined that

the disability suffered by him was neither attributable to nor aggravated by military service. It is pleaded that the writ petitioner has wrongly claimed

that he suffered 30% disability, because the Release Medical Board had opined that the disability suffered by the writ petitioner was less than 20%

for life long. It is further contended that PCDA(P), Allahabad after going through the opinion formed by the Medical Board rejected the disability

pension claim of writ petitioner vide order dated 30.09.2005, as his claim was not falling under the provisions of Rule 173 of Pension Regulations

for the Army Act, 1961 (Part-1). Further, it is contended that the disease suffered by the writ petitioner was constitutional in nature, which could

not be detected in fledging stage and symptoms thereof can be detected either during extensive examination by the specialists or when the disease

becomes chronic.

The short question arising for consideration is whether the disability of writ petitioner is attributable to or aggravated by military service and

whether he is entitled to disability pension or not?

It would be relevant to reproduce Regulation 173 of Pension Regulations for the Army, 1961 is reproduced hereunder:

Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual

who is invalided out of service on account of a disability which is attributable to or aggravated by military service is non-battle casualty and is

assessed at 20 per cent or over.

The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II.

A bare perusal of the afore-quoted Regulation makes it clear that unless otherwise specifically provided, in normal course, disability pension is

to be granted to an individual (i) who is invalided out of service on account of a disability which is attributable to or aggravated by military service

and (ii) whose disability is assessed at 20% or over.

The afore-quoted Regulation further provides that whether the disability is attributable to or aggravated by military service is to be determined

under the rule in Appendix II. Rule 5 thereof reads as under:

The approach to the question of entitlement to casualty pensionary awards and evaluation of disabilities shall be based on the following

presumptions:

PRIOR TO AND DURING SERVICE

(a) A member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or

recorded at the time of entrance.

(b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due

to service.

A perusal of the above Rule provides that when no physical disability is noted or recorded at the time of entrance of an individual, he is

presumed to be physically and mentally fit. Admittedly, at the time of entry into service in the year 1978, the petitioner was subjected to medical

examination and no such disease was detected, therefore, it can be safely presumed that he was physically fit and was not suffering from any such

disease which has caused the disability. Even otherwise if it disease has led to the discharge of individual, it shall ordinarily be deemed to have

arisen in service if no note of it was made at the time of individual's acceptance for military service. Respondents have failed to show any evidence

or produce any document whereby any such entry had been recorded at the time of petitioner's initial entry into service. Thereafter, he served the

Indian Army for about 27 years and was granted promotions from time to time. It is a practice in the Indian Army that on every promotion the

prospective promotee is subjected to medical examination and, only on being found fit, the person is promoted to the next higher post; meaning

thereby the petitioner was found physically fit before acquiring every promotion, i.e., with effect from November 1978 till 2003, when, for the first

time, he was found to be suffering from Cataract Left Eye by 167 Military Hospital. Since the writ petitioner was found disabled by the Release

Medical Board on account of the disease he was suffering from, he was discharged from service in the year 2005.

With respect to disability due to diseases, Rule 14 shall be applicable, which as per the Government of India publication reads as follows:

Rule 14. Disease- In respect of diseases, the following rule will be observed:-

a. Cases in which it is established that conditions of Military Service did not determine or contribute to the onset of the disease but influenced the

subsequent courses of the disease will fall for acceptance on the basis of aggravation.

b. A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service, if no note of it was made at the

time of the individual's acceptance for military service. However, if medical opinion holds, for reasons to be stated, that the disease could not have

been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service.

c. If a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to

the onset of the disease and that the conditions were due to the circumstances of duty in military service.

A bare perusal of the Rule 14(a) provides that in case it is established that the conditions of military service did not contribute to the onset of

the disease but influenced the subsequent courses of the disease, same will fall for acceptance on the basis of aggravation. During his service career

with effect from 1978 till 2003 writ petitioner was not detected to be suffering from the disease-in-question, therefore, it can be said that the

disease had arisen and aggravated during the period of Service and had caused by the conditions of employment in military service which is similar

to Rule 14(c). Even if it is assumed that the writ petitioner was suffering from the disease which was constitutional in nature and its onset was not

by the conditions of military service, even then it has to be accepted that the conditions of military service influenced the subsequent course of

disease which certainly falls for acceptance on the basis of aggravation.

Rule 14(b) though provides that in case medical opinion holds, for reasons to be stated, that the disease could not have been detected prior to

acceptance of service, the disease will not be deemed to have arisen during service, however, while going through the record annexed with the

objections, there is no such medical opinion to indicate that the disease could not have been detected on medical examination prior to acceptance

of service.

Further, it would also be relevant to reproduce Item-17 of Medical Board Proceedings (Place of Board : 167 Military Hospital) hereunder:

Was the disability contacted in service?: Yes

It would also be relevant to reproduce Item-22 of Medical Board Proceedings (Place of Board : Mamun Cantt) hereunder:

Percentage of disability?: 30% (thirty)

Admittedly, it is not the case of appellants that the writ petitioner was having such disease before his entry into the service. It is also not the

case of appellants that it was not possible for the Medical Board to detect such disease at the time when the writ petitioner entered into service. It

is beaten law laid down by the Apex Court as well as various High Courts of this Country that army personnel is entitled to disability pension if the

disease is occurred during his active service. The opinion of the Medical Board, therefore, has great significance in this regard.

In the present case, the proceedings of the Medical Board, referred to hereinabove, clearly reveal that the disability of writ petitioner was

contacted during his service and the same was assessed at 30%. Therefore, the claim of appellants that the writ petitioner suffered less than 20%

disability is contrary to the opinion of Medical Board.

This Court in case, titled as, Puran Chand v. Union of India, 2013 (2) JKJ 473 [HC], while deciding an identical issue has held that since no

note was recorded about, the disability at the time of selection and enrolment, the petitioner would be presumed to have been in sound physical

and mental condition and his subsequent disease or deterioration in health is to be treated due to service.

A Division Bench of this Court in case, titled as, Union of India (UOI) and Another Vs. Sikander Singh, , has also taken the same view.

The Apex Court in a latest judgment reported as, Dharamvir Singh Vs. Union of India (UOI) and Others, , has held as under:

In spite of the aforesaid provisions, the Pension Sanctioning Authority failed to notice that the Medical Board has not given any reason in

support of its opinion, particularly when there is no note of such disease or disability available in the service record of the appellant at the time of

acceptance for military service. Without going through the aforesaid facts the Pension Sanctioning Authority mechanically passed the impugned

order of rejection based on the report of the Medical Board. As per Rules 5 and 9 of 'Entitlement Rules for Casualty Pensionary Awards, 1982',

the appellant is entitled for presumption and benefit of presumption in his favour. In absence of any evidence on record to show that the appellant

was suffering from ""Generalised seizure (Epilepsy)"" at the time of acceptance of his service, it will be presumed that the appellant was in sound

physical and mental condition at the time of entering the service and deterioration in his health has taken place due to service.

In view of the above discussion, we find no fault in the conclusion arrived at by the learned Single Judge in allowing the disability pension in favour

of writ petitioner. Resultantly, the appeal-in-hand deserves to be dismissed. Dismissed as such along with connected CMA(s).