Union of India (UOI) and Others vs Nar Singh Dev Singh

Vinod Kumar Gupta, J.—The appellants have preferred this Letters Patent Appeal against the order dated 24.9.2005 passed in SWP No.

2354/2000 whereby the learned Single Judge after allowing the petition of the respondent has directed to process the case of the

petitioner/respondent herein for grant of disability pension and grant the same as admissible under rules.

The material facts for disposal of this appeal are that the respondent Nar Singh Dev Singh was recruited in Indian Army on 26.11.1979 on

being subjected to other tests including medical examination. While serving in the Army, he suffered from FITS-NYT in the year 1981 and was

placed in EEE medical category. His disability was assessed more than 50% and boarded out on medical ground vide discharge order dated

26.2.1982. The case of the respondent for grant of disability pension was forwarded to Controller of Defence Accounts (Pension), Allahabad, but

his claim for disability was rejected on the ground that the disability suffered by the respondent was neither attributable to nor aggravated by

military service. The respondent challenged this communication by way of SWP No. 2354/2000 in this Court seeking quashment of aforesaid

communication and direction for grant of disability pension, The learned writ court vide order dated 24.9.2005 has allowed the writ petition and

directed the appellants herein to process the case of the petitioner/respondent for grant of disability pension on the basis of disability assessed by

the Medical Board and grant disability pension to the petitioner as admissible under rules.

Being aggrieved by this order, the appellants herein have preferred this Letters Patent Appeal. We have heard the learned Counsel for the

parties and perused the record.

The learned Counsel for the appellants have contended that the Medical Board has given its opinion that the disability of the petitioner was not

attributable to the Military service nor it was aggravated thereby and thus the respondent is not entitled to disability pension. He has further argued

that the disease is constitutional in nature. On the other hand, the learned Counsel for the respondent has submitted that since at the time of

induction of respondent into army he was medically fit at that time, therefore, it is to be presumed that the respondent has suffered the disease

during his service because of the conditions of military service and thus the respondent is entitled to disability pension.

From the report of the Medical Board it is apparent that the respondent was invalided out of service on 19.8.1995 on account of disease

namely/FITS-NYD and was placed in EEE category. It is also stated that the said disease is constitutional in nature. There is nothing on record to

show that the respondent was suffering from any such disease at the time of entry into the Military service.

Regulation 173 of Pension Regulations for Army 1961 provides conditions on which disability pension can be granted to any person who is

invalided out of service on account of any disability. This regulation reads as under:

Primary conditions for the grant of disability pension.

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 disability which is attributable to or aggravated by military service and is assessed at 20 per cent or above.

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

This regulation clearly lays down that the disability pension is granted to an individual who is invalided out of service on account of disability

which is attributable to or aggravated by military service and is assessed at 20% or above.

Now the question involved in this appeal is whether the respondent suffered the disease because of stress and strain of military service and the

same is attributable to or aggravated by such service. In this case as stated above the respondent was not recorded to be suffering from the

disease mentioned above when he was enrolled in the service. He suffered this disease during the service and the learned writ court after relying

upon number of decisions of this Court and rules and regulations applicable, has come to the conclusion that the respondent suffered the disease of

FITS-NYD which was the result of stress and strain of military service and the same is attributable to or aggravated by the said service. In our

view, learned writ court was right in holding so because if a person contracts a disease during his military service, it is presumed that the person

suffered this disease due to the conditions of military service and is attributable to or aggravated by military service in case it is not rebutted

otherwise.

The contention of learned Counsel for the appellant that the respondent was suffering from a disease which is constitutional in nature and as such

it cannot be said that this disease has arisen during service or its being aggravated due to conditions of military service, cannot be accepted. As

stated above, there is nothing on record to show that any note was made at the time of respondents entry into military service that he was suffering

from any such disease. The disease on account of which the respondent was invalided out though constitutional in nature yet to be deemed to have

arisen during service on the basis of presumption because no note of such disease was recorded in medical report of the respondent at the time of

his entry into military service. Even if tills disease was dormant at the time of entry of respondent into military service, still it is to be accepted that

this disease has aggravated by stress and strain as a result of conditions of military service.

The same view was taken by the Division Bench of this Court in LPA(SW) No. 212/2006 entitled Union of India and Ors. v. Ravinder Kumar

decided on December 31, 2007. One of us (Y.P. Nargotra J.) held after discussing the rules and regulations and different judgments of Hon'ble

Supreme Court as under:

Thus any such disease which under Clause (c) is to be presumed to have arisen during service if falls in any of the categories of the diseases

indicated in Annexure-III, it may be presumed to have aggravated by the facts indicated against such disease in Annexure-III. For instance in B

category of Annexure-III diseases have been indicated which are affected by stress and strain. Thus if an individual is found to suffer from

psychosis with disability of 20% or more during service and such disease even if constitutional in nature is to be deemed to have arisen during

service in terms of Clause (c), and that it was aggravated by stress and strain. As in terms of Rule 9 of Appendix-II the claimant is not required to

prove his entitlement, therefore, if there is no material before the Pension Sanctioning Authority that stress and strain was not involved in discharge

of the military duty, it would have no option but to concede the aggravation by accepting that stress and strain was caused by the military duty.

In the instant case the disease on account of which the respondent was invalided out though constitutional in nature yet to be deemed to have arisen

during service on the basis of presumption under Clause (c) of Regulation 423 falls in category-B of Annexure-III to Appendix-II being a neurotic

disorder, is to be accepted to have aggravated by stress and strain. No material has been placed on record by the appellant to show that stress

and strain could not have been the result of conditions of military service, therefore, it has to be accepted that the stress and strain which

aggravated the disease was due to the conditions of military service.

For the foregoing reasons, we would hold that the learned writ court was correct in holding that disease of FITS-NYD from which respondent

suffered is a disease which was the result of stress and strains of military service and the same is attributable to or aggravated by the said service

and thus the respondent is entitled to disability pension.

This Letters Patent Appeal of the appellants is without any merit and deserves dismissal. Accordingly, this LPA alongwith connected CMP is

dismissed.