VN Sharma vs Union Of India And Others

Being aggrieved by denial of disability pension, the applicant has filed the present Original Application under Section 14 of the Armed Forces

Tribunal Act, 2007 wherein he has sought the following reliefs:-

(a) To direct the respondents to place all medical records including medical boards and Release Medical Board conducted by the respondents for the

perusal of the court.

(b) To quash the letter dated 06.05.2004, 29.03.2006 and 22.12.2017 denying disability pension to the applicant.

(c) Do direct the respondents to grant disability pension to the applicant from the date of retirement in view of the above mentioned circumstances and

the settled law with regard to grant of disability pension @ 30% from 01.05.2003.

(d) To grant the broad banding of disability pension from 30% to 50% as per Larger Bench judgment dated 01.12.2017 and UOI v Ram Avtar Civil

Appeal no. 418 of 2012..

(e) To direct the respondents to pay 12% interest on the arrears ofp ension and other benefits.

The brief facts of the case giving rise to the instant original applicant are that the applicant was enrolled in the Indian Air Force (IAF) on

18.06.1963 and thereafter he was commissioned on 19.07.1986 and has served in IAF for about 40 years. He was discharged fromservice on

30.04.2003. Prior to discharge, the Release Medical Board assessed his disabilities (i) 'Primary Hypertension' © 20% (ii) `NIDDM' © 20% and

(iii) Cataract (Rt) Eye Optd') ©I 15-19% for two years (composite disability for all the disabilities © 30% for two years) and opined these to be

neither attributable to nor aggravated by military service (NANA). Disability pension claim was rejected vide order dated 29.03.2006 and the first

appeal, submitted belatedly, was not considered. It is in this perspective that the applicant has preferred the present O.A.

Ld. Counsel for the applicant pleaded that the applicant was fully fit at the time of enrolment/commission and asserted that after having served for

more than three years, he was found to be suffering from the aforesaid disabilities w.e.f. 26.08.2000 i.e. after completing more than 37 years. The Ld.

Counsel for the applicant asserted that the applicant has picked up these disabilities due to stress and strain of military service. Ld. Counsel for the

applicant further submitted that prevailing service conditions in the military units are very demanding and put similar stress as that of field posting.

Relying upon the Hon'ble Apex Court judgment in the case of Dharamvir Singh vs Union of India & Ors, reported in (2013) 7 SCC 316, Ld. Counsel

for the applicant vehemently argued that the disabilities of the applicant are principally due to stress and strain of military service hence these should

be considered as aggravated by military service.

On the other hand, Ld. Counsel for the respondents contended that disability of the applicant has been regarded as NANA by the RMB hence he is

not entitled to disability pension. He further stressed that in the instant case onset of disability was in a peace station and there is no close time

association with stress/strain of service as associated with Field/High Altitude/Counter Insurgency Operations. Therefore, disability of the applicant

has been conceded as NANA by the RMB. He pleaded for dismissal of the O.A.

We have heard Ld. Counsel for the applicant as also Ld. Counsel for the respondents. We have also gone through the RMB and rejection order of

disability pension claim. The question before us is simple and straight i.e.-is the disabilities suffered by the applicant attributable to or aggravated by

military service?

The law on attributability of a disability has already been settled by the Hon'ble Supreme Court in the case of Dharamvir Singh vs. Union of India &

Ors reported in (2013) 7 SCC 316. In this case the Apex Court took note of the provisions of the Pensions Regulations, Entitlement Rules and the

General Rules of Guidance to Medical Officers. The above judgment lays down that if no note of any disability or disease was made at the time of

individual's acceptance for military service, a disease which has led to an individual's discharge or death will be deemed to have arisen in service.

In view of the settled position of law on attributability, we find that the RMB has denied attributability to the applicant only by endorsing that the

disabilities (i) 'Primary Hypertension' (ii) `NIDDM' and (iii) Cataract (Rt) Eye Optd' have no causal connection with military service but no cogent

reasons have been assigned for denial of the disability pension. While it is understood that cataract is age related degenerative process, however we

have tried to understood the reason for denial of attributability for the other two diseases i.e. 'primary Hypertension' and 'NIDDIM'. However we

found that except for cryptic one line ""Not connected to service"", there is nothing else on this matter in RMB. It is trite law that any disability not

recorded at the time of recruitment must be presumed to have been caused subsequently and unless proved to the contrary to be a consequences of

military service. The benefit of doubt therefore shall be rightly extended in favour of the applicant for these two diseases. In the instant case since the

applicant was found to be suffering from both these disabilities after he had put in more than 37 years of service hence we are of the considered

opinion that in view of law settled by Dharamvir Singh vs Union of India & Ors (supra) both the disabilities of the applicant i.e. 'primary hypertension'

and `NIDDM' © 20% should be considered as aggravated by military service.

In view of the above, we are of the view that the applicant is entitled to composite 20% disability for two years which shall stand rounded off to

50% disability for two years after his discharge in terms of Union of India vs Ram Avtar & Ors, (Civil Appeal No. 418 of 2012 decided on 10

December, 2014).

Since the applicant's RMB was valid for two years w.e.f. 30.04.2003, however, the disease being of a permanent nature, it is to be deemed as an

RMB for life in light of Hon'ble Supreme Court Judgment in Civil Appeal No. 5970 of 2019 Commander Rakesh Pande vs Union of India, decided on

28.11.2019.

In view of the above, the O.A. deserves to be partly allowed, hence, Partly allowed. The impugned orders are set aside. The disabilities 'Primary

Hypertention' and 'NIDDM' are considered as aggravated by military service for life. Applicant is granted disability element of pension compositely

© 20% for life which is to be broad banded to © 50% for life in the light of decision of Hon'ble Supreme Court in Union of India & Ors vs Ram

Avtar & Ors (Civil Appeal No 418 of 2012 decided on 10th December 2014. However, in view of decision of the Hon'ble Supreme Court in Union of

India vs Tarsem Singh, reported in 2069 (1) AISLJ 371 with regard to law of limitation, the applicant is entitled for the arrears of disability element

only upto three years before the date of filing this Original Application. The date of filing of this Original Application is 07.02.2018. The respondents

are directed to give effect to this order within four months from the date of receipt of copy of this order failing which it shall attract interest © 6%

p.a. till the date of payment.

No order as to costs.

Pending applications, if any, are disposed of accordingly.

Pronounced in the open court on 6th March, 2020.