Union of India vs Rattan Lal

T.S. Doabia, J.

The medals and certificates with which a soldier is decorated is good for feeding his ego, but is no substitute when he is called upon to meet the

challenges of old age, ebbing mental and physical prowess, atrophy of both muscle and brain powers. The sentiments expressed in this petition are

the same which were expressed in Wolsey's prayer : ""had I served my God as reverently as I did my King, I would not have fallen on these days

of penury"".

At a young age of 20 years, the petitioner with excellent health and stout body is said to have joined Indian Army in the year 1963. He was

attached as Technical Assistant, Gunner. He is said to have seen action in the war of 1965. Seven years later, he was boarded out of Army being

placed in `Low Medical Category'. The petitioner was seeking disability pension. This was refused in the month of Sept. '87. It was refused on the

ground that the disability which resulted in his invalidment from service was neither attributable to nor aggravated by the military service. The

decision to this effect was arrived at by the Pension Sanctioning Authority located at Allahabad. The petitioner submits that if an army personnel is

boarded out on a ground on which he has been boarded out, then he becomes entitled to full pension for the rest of his life. Having been declined

the pension, he approached this court. A writ stands issued. The Union of India has preferred an appeal under Clause 12 of the Letters Patent.

The learned counsel appearing for the Union of India submits that when the matter was heard by a learned Single Judge of this court, there was no

appearance on behalf of respondents and therefore, the Union of India was unable to put across its point of view. The learned counsel therefore,

referred to the stand taken in the counter affidavit filed in the writ petition. The stand taken is as under :

It is admitted that the petitioner was awarded Summer Sewa Star 1965 and Sainya Sewa Medal 1966 Clasp Himalayas. He was placed in Low

Medical Category `BEE' (permanent) on 19th Sept. '68. He was discharged from service under Army rule 13(iii)(v). This was because the

Release Medical Board was of the view that the petitioner was suffering from Hypermetropia with partial Amblyopia RT Eye (370). It was found

that the disability was not attributable or aggravated to the military service.

Thus the plea taken is that the physical disability for which the petitioner was boarded out of service was not attributable to or aggravated by

military service. It is further stated that this was not aggravated in any manner by the hazards of army service. It is under these circumstances

submitted that the writ petitioner was not entitled to any disability pension. What is sought to be urged is that 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. Rule 7(b) also provides that a disease which has led to an individual's

discharge, shall ordinarily be deemed to have arisen in service if no note of it is made at the time individual's acceptance for military service. The

Union of India is placing reliance on the lines : ""however, if the medical opinion holds, for reasons to be stated, that the disease could not have been

detected on medical examination prior to acceptance of service, the disease will not be deemed to have arisen during service."" As both sides are

placing reliance on this Rule, it would be apt to notice this rule. It reads as under :

In respect of diseases, the following rules 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 course 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.

(d) In considering whether a particular disease is due to military service, it is necessary to relate the established facts, in the aetiology of the

disease, and of its normal development, to the effect that conditions of service e.g. exposure, stress, climate, etc. may have had on its

manifestation. Regard must also be had to the time factor....

The respondentwrit petitioner is placing reliance on Rule 173(A). This rule provides that where an individual who has been placed in a `lower

medical category' (other than `E') permanently and who is discharged because no alternative employment suitable to that low medical category is

available, shall be deemed to have been invalided from service for the purpose of entitlement of pension. This rule is also being noticed. This reads

as under :

Individuals who are placed in a lower medical category (other than `E') permanently and who are discharged because no alternative employment

suitable to their low medical category could be provided, shall be deemed to have been invalided from service for the purpose of entitlement of

rules laid down in Appendix II to these Regulations.

The above provision shall also apply to individuals who are placed in a low medical category while on extended service and are discharged on that

account before the completion of the period of their extension.

The primary conditions for grant of disability pension are indicated in Rule 173. This rule is also being quoted as under :

Unless otherwise specifically a disability pension may be granted to an individual who is invalided from service on account of a disability which is

attributable to or aggravated by military service 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 Rules in Appendix II"".

A perusal of the aforementioned rules makes it apparent that an army personnel boarded out of services is entitled to disability pension if he suffers

a disability on account of hazards of army service. It is also clear that in case at the time of entry in service, the authorities do not make mention of

ailment which has led to the disablement of any army personnel, then, it is to be presumed that the disability occurred on account of the stress and

strains and hazards of army service.

The respondent writ petitioner was found to be suffering from the disease namely Hypermetropia with partial Amblyopia RT Eye (370). This

disease basically represents failure on the part of eye lens to make a balance between accommodation and convergence (q.v.). In the young the

condition may cause no symptoms. When symptoms are present or arise, they are chiefly referable to the abnormal amount of accommodation to

which the eyes are subjected and to the lack of balance between accommodation and convergence. Again the symptoms and the factors which are

responsible for aggravating the disease have been indicated as under :

The healthy youth has an ample reserve of accommodation, and he happens to be hypermetropic, he accommodates for distant and near objects

without being conscious of the act. If he is weak or does much near work the perpetual overaction of the ciliary muscle is likely to produce

symptoms : the condition is often called accommodative asthenopia or `eye strain'. The symptoms are noticed chiefly after close work, especially in

the evening by artificial illumination.

The above quotation is from the book : ""Parson's Diseases of the eye, 15th Ed., The English Language Book Society and Churchil Living Stone.

From the above, it is apparent that perpetual overaction and artificial illumination are responsible for aggravating the malady. The petitioner was a

gunner. He was Technical Assistant. This job does put burden on the eye as it has to make accommodation in the manner indicated above. The

requisite artificial illumination occurs when there is use of fire arms and guns. This artificial illumination can aggravate the malady and therefore, it

can be presumed that the disease from which the respondentwrit petitioner came to suffer, was aggravated on account of hazards of the army

service.

It be further seen that at the time of enrolment of the respondent, he was found to be suffering from no ailment. The opinion of the Medical Board

that the writ petitionerrespondent was suffering from the aforementioned ailment at the time of his induction in the army, has not been placed on the

record. The file does not indicate that the medical opinion gives any specific reasons that the disease was such which could not be detected at the

time of induction of the writ petitioner in service.

A perusal of the rules quoted above, therefore, makes it apparent that the disease which led to an individual's discharge 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. Otherwise, the medical opinion should

be to the effect that the disease was such which could not be detected on medical examination when a person was accepted for service. If this

reason is not available on the file, then a presumption arises. This presumption is to the effect that the disease would be deemed to have arisen

during service.

The counter affidavit filed by the Union of India merely states that the disease is not attributable to military service. This decision has been taken by

the Accounts Officer (Pension). The letter on which reliance is being placed by the appellantUnion of India reads as under :

..... It has been decided that the disability from which the above named suffered during his service in the Army and on which his claim is based :

(i) is not attributable to military service,

(ii) does not fulfil the following conditions namely :

that it existed before or arose during military service and has been or remains aggravated hereby.

The claimant's Sheet Roll duly endorsed will be sent to you separately.

Sd/

Accounts Officer (Pensions)

The above conclusion is not a conclusion which falls within the parameters of Rule 7, therefore, what is said in Regulation 173 and 173(A), would

be clearly attracted to the facts of this case.

Some of the judicial precedents in this regard be noticed.

In Union of India v. Bodan Lal Yadav, 1994(1) SCT 369, a sepoy of the Indian Army was placed in category `EEE'. The medical report was to

the effect that there was a ""personality disorder"". This variant of personality indicated a blending aggression and inadequacy. The employee was

described as ""ambitious competitive"" demanding special attention and had ""grandiose fantasies"". The report was ""on the other hand he gets easily

frustrated and has a proclivity towards depression. He has failed in emotional, social and occupational adjustment. He is a mentally sick soldier and

has lost adequate military value. Recommended Category `EEE'. The disability was assessed at 20%. A Division Bench of the Punjab and

Haryana High Court came to the conclusion that the disability which led to the person concerned being discharged from service was clearly

attributable to service hazards. The observations made by the Division Bench in this regard were as under :

A plain reading of this provision would show that the case of disability which led to the person concerned being discharged from service will be

deemed to have arisen in service, if no note of it was made at the time of his entry in the armed forces that he was suffering from such disability or

unless a note is recorded at a subsequent date that the disease in question was such as could not have been detected by medical examination

before he had joined service.

In Gurdas Singh v. Union of India, 1994(2) SCT 298, it was observed that the Union of India was not in a position to show that the disease

alleged to have been acquired was not attributable to army service. The writ petitioner was able to demonstrate that he was hale and hearty at the

time he joined the army service and remained as such during the said service when he was periodically checked. It was held that he would be

entitled to disability pension. the disability in the above case was assessed at 50%. Another unreported decision in the case of CWP No. 162 of

1991, titled Sardar Singh v. Union of India, was referred to in the case of Gurdas Singh. The observations made by the Division Bench in Gurdas

Singh's case are reproduced below :

Since the petitioner had admittedly suffered disability during the service career, the rejection of his claim on the ground that disability is not

attributable to military service or that it did not fulfil the requisite condition that it had remained aggravated by military service cannot be sustained.

The disability being attributable to military service, the petitioner was entitled to the grant of disability pension as contemplated under the rules. His

claim was, therefore, wrongly rejected by the respondent.

In Wing Comdr. R.L. Sharma v. Union of India, 1994(4) SCT 268, where the disability was assessed at 20%, the decision taken by the

Controller of the Defence Accounts (Pension) refusing disability pension was found to be not sustainable. It was observed that if the opinion of

Board was to be overruled then cogent reasons were required to be given and the procedure in these circumstances should have been to refer the

person concerned for examination by a fresh medical board for his assessment in terms of relevant instructions which were referred to in the

judgment.

In Anil Kumar Mishra v. Union of India, 1996(3) SCT 778, the writ petitioner was medically fit at the time of recruitment. In the course of service,

he developed physical disability. The disability so indicated was held to have been suffered on account of stress and strains of military service. The

view expressed was that in case no mention is made in the service records regarding disability at the time of enrolment in service, then it can safely

be presumed that the disability occurred on account of stress and strains of army service. To the same effect is another Division Bench judgment of

Punjab and Haryana High Court, reported as Ashwani Kumar v. Union of India, 1996(4) SCT 154, wherein it was observed that the disability

due to which the petitioner has been boarded out from service, would be deemed to have been suffered during the course of service and would be

attributable to military service. This would be more so if no mention of disease is indicated in the record prepared at the time of initial induction in

service.

In ExSub. Baljor Singh v. Union of India, 1997(4) SCT 599, the Army personnel was placed in low medical category (permanent). His leg was

amputated. He was not given disability pension but was retained in service in public interest. The army personnel faced difficulty in performance of

his duties on account of amputation. He made a request that he be discharged on medical ground. The Division Bench held that the writ petitioner

would be entitled to disability pension and the mere fact that he had made request to the authorities for discharge would not be sufficient to deny

his claim.

The Allahabad High Court has expressed similar opinion in the case reported as Ram Niwas v. Union of India, 1997(4) SCT 47. The court took

note of the decision reported as Gurdas Singh v. Union of India (supra) and came to the conclusion that as the respondents were not in a position

to show that the disease alleged to have been acquired by the writ petitioner, was not attributable to army service, the writ petition was held

entitled to disability pension.

In ExCapt. Harbhajan Singh v. Secy., Ministry of Defence, 1996(4) SCT 222, the disability was due to exposure to blasts during field firing. This

was held to be attributable to military service. In the aforementioned case, reference was made to an unreported judgment of Supreme Court in

India in Ex. Sapper Mohinder Singh v. Union of India, C.A. 164/1993 decided on 14.1.1993. The relevant para in which reference is made to

various other judgments is as under :

In support of his contention learned counsel relied upon Wing Commander R.L. Sharma (Retd.) v. Union of India through Secretary Ministry of

Defence, Govt. of India, New Delhi and others, 1994(4) RSJ 705, a Division Bench judgment of Himachal Pradesh High Court as also a judgment

of the Apex Court in Ex. Sapper Mohinder Singh v. Union of India (supra).

After noting the above judgments, the writ petitioner was allowed disability pension from the date of his release. The disability was assessed at

20%.

The view of this court is also to the same effect. See Manjit Singh v. Union of India, 1997 KLJ 179. In the above case it was observed :

In the circumstance it is not difficult to gather that petitioner's disease, whatever name was given to it, was not noticed at the time of his enrolment

in the service, nor was the disease such as was incapable of being noticed by the medical experts"".

The question of delay in the matter of approaching this court, be examined.

Nongrant of pension gives a recurring cause of action. Even otherwise, delay in these matters is not material. See 1997(3) SCT 414, Gurdip Singh

v. Union of India. In this case, the plea taken by the Union of India was that there was inordinate delay in filing the writ petition. This plea was

rejected by making following observations :

It is no doubt correct that the petitioner has filed the writ petition after a lapse of almost 40 years. A perusal of the order, quoted above, however,

shows that the petitioner had been regularly representing to the authorities and his claim was declined only on the ground that the disability was not

attributable to or aggravated by military service. This being factually incorrect, we have no alternative but to quash the order. Furthermore in the

circumstances of the case and more particularly the continuing disability (sic) delay in approaching the court even in the matter of pension cannot

completely defeat his claim. We consider it to be in the interest of justice to allow his claim for the payment of pension. However, on account of

delay, we decline the petitioner's prayer for the payment of interest.

It was further observed that :

The above view has the imprimatur of their Lordships of the Supreme Court. In S.R. Bhanrale v. Union of India and others, AIR 1997 SC 27 :

1996(4) SCT 573 (SC), it was held ""that when the department itself had defaulted in making payments in spite of demands made by the employee,

it could not plead the bar of limitation. Consequently, the plea of delay raised on behalf of the respondents cannot be sustained. It is rejected.

Before parting with this judgment, reference be also made to the decision given in Romesh Lal Mullah v. Union of India, 1998(4) SCT 22. In the

above case, the concerned army personnel was suffering from Schizophrenia. There was nothing to indicate that he was suffering from the above

disease at the time of entry to service. Another person who was suffering from the same ailment, was granted disability pension. Ramesh Lal

Mullah was denied disability pension. He came to this court. His writ petition was dismissed. The Letters Patent Bench permitted him to approach

the respondent authorities again. The authorities again rejected his claim. There was nothing on the record to indicate as to why he was being

denied the disability pension when another person namely Ram Dayal was allowed the same. Taking note of the above circumstance and the fact

that the army personnel was not suffering from the disability at the time of entry in service, a direction was given to the respondents to allow

disability pension to the aforementioned Ramesh Lal Mullah.

In the present case, there is nothing on the record to indicate that the writ petitionerrespondent was suffering from the ailment at the time of entry

into service. It is also not the case of the appellantUnion of India that the ailment was such which could not be detected at the time of entry to

service. Therefore, from the judicial precedents referred to above, it can safely be concluded :

(i) that in case mention is not made regarding the disease or disablement at the time of entry in service, then it is to be presumed that the disability

occurred during the course of service.

(ii) that disability would be on account of stress and strains of army service;

(iii) if competent authority is to disagree with the finding recorded by the medical board visavis the disability or the percentage thereof, the matter

should be referred to the Medical Board;

(iv) as there is no finding recorded that the respondentwrit petitioner was suffering from a disease which could not be detected at the time of entry

into service, the appellantUnion of India cannot take a summers ault and come to a contrary conclusion;

(v) delay in approaching the court is irrelevant.

The net result is that this appeal is found to be without merit and is dismissed. Let the amount be now disbursed to the respondentwrit petitioner

within a period of two months. In case, this is not done, the writ petitioner would be entitled to interest. The rate of interest would be 12% and this

would be payable by the person on whose account the delay occurs.

This appeal is disposed accordingly along with connected CMPs.