Vijay Kumar vs Union Of India And Others

The applicant, Ex. WO Vijay Kumar, through the medium of the instant Original Application is seeking the following reliefs:

(a) Quash and set aside the impugned letters dated 30 Aug 2016 and 06 Feb 2018.

(b) Direct Respondents to grant the disability pension ©30% and rounding off the same to 50% for life to the applicant with effect from 01 Apr 2017

i.e. the date of discharge from service with interest g12% p.a. till final payment is made.

(c) Any other relief which the Hon'ble Tribunal may deem fit and proper in the fact and circumstances of the case.

The facts of the case, in brief, are that the applicant was enrolled in the Indian Air Force on 18.11.1978 and was discharged from service on

31.03.2017 in low medical category after attaining the age of superannuation. The Release Medical Board (RMB) held at 28 Wing AF on28.04.2016

assessed his disability 'PRIMARY HYPERTENSION (OLD) Z 09.0' ©30% for life. However, the RMB opined that the disease of the applicant

was neither attributable to nor aggravated by military service (NANA). The applicant's claim for grant of disability pension was rejected by the

respondents vide orders dated 30.08.2016 and 06.02.2018. Hence the instant Original Application.

Learned Counsel for the applicant submitted that the applicant was medically fit when he was enrolled in Air Force service and any disability not

recorded at the time of enrolment should be presumed to have been caused subsequently. The action of the respondents in denying disability pension

to the applicant is illegal. In this regard, he relied on the decision of the Hon'ble Supreme Court in Dharamvir Singh v. Union of India and others,

(2013) 7 SCC 316 and submitted that for the purpose of determining attributability of the disease to air force service, what is material is whether the

disability was detected during the initial pre-commissioning medical tests and if no disability was detected at that time, then it is to be presumed that the

disability arose while in service, therefore, the disability of the applicant is to be considered as aggravated by service and he is entitled to get disability

pension @ 30% for life and the same is to be broad banded to 50%.

On the other hand, learned counsel for the respondents has filed Counter Affidavit and has submitted that though the RMB had assessed the

disability of the applicant @ 30%, it opined that the disability is NANA. As such his claim for disability pension has rightly been rejected by the

respondents. He submitted that the instant Original Application does not have any merit and the same is to be dismissed.

Having heard the learned counsel for both the parties and perused the records, the only question that needs to be answered is, whether the disability

of the applicant is attributable to or aggravated by military service?

We have noted that the only reason for which the disability has been opined as NANA by the RMB is that the disease has no close time association

with stress and strain of filed/HAA/CI Ops or Trauma/Infection/dietary compulsion. The disability was first detected on 05.10.2007 whereas the

applicant was enrolled in Air Force on 18.11.1978 i.e. after about more than 29 years of service. Thus the stress and strain of military service can't be

overlooked. Additionally we don't agree that the stress and strains of military service is only in Fd/HAA/CI Ops areas and not in military stations

located in peace areas. Hence, we would like to give benefit of doubt in favour of the applicant. Thus we are of the considered opinion that the

disability 'PRIMARY HYPERTENSION (OLD) Z 09.0' is to be considered as aggravated by military service in line with the law settled on this

matter by the Hon'ble Apex Court in the case of Dharamvir Singh (supra). Additionally, the applicant will also be eligible for the benefit of rounding

off to 50%, in terms of the decision of Hon'ble Supreme Court in Union of India and others v, Ram A vtar(Civil Appeal No 418 of 2012 dated

10.12.2014).

Resultantly, the O.A. is allowed. The impugned orders are set aside. The applicant's disability 'PRIMARY HYPERTENSION (OLD) Z 09M'

@30% for life, is to be considered as aggravated by military service and his disability element of pension is to be rounded off from 30% to 50% for

life. The applicant is entitled to disability element of disability pension @30% for life, which shall be broad banded to 50% for life from the date of his

discharge from service i.e. 31.03.2017. Ordered accordingly. To be implemented by the respondents within four months from the date of receipt of a

copy of this order. Default will invite interest @ 8% per annum.

No order as to costs.