JUDGMENT 1. - The petitioner was recruited in the Indian Army as Sepoy on 1.2.1976 and after serving with the Kumaon Regiment, he was invalided out of service on 19.1.1993 on the recommendations of the Medical Board dated 31.12.1992, which categorised him in medical category EEE on account of his suffering from Cranio Pharyngioma (Operated). The percentage of his disability was assessed more than 20%. In his pension payment order Annexure 1, . the invaliding disability was shown as Cranio Phargioma (Operated), which was neither attributable to or aggravated by military service. His disability pension claim was rejected by the Records Officer, Records Office, Kumaon Regiment Ranikhct (respondent No. 3) vide his letter dated 9.7.1993. Annexure 2 on the ground that his disability was not attributable to or aggravated by military service. The appeal filed by the petitioner against decision taken by the respondent No. 3 was also dismissed by the Ministry of Defence, Union of India vide letter dated 11.5.1994 Annexure 5. 2. The petitioner averred that he was medically fit at the time of his enrolment in the Indian Army and that he did not suffer from any such disease at that time nor any Note was made by the Army Recruiting Authority that he suffered from Cranio Pharyngioma nor there is any material available with the respondents to show that the said disease could not have been detected on medical examination prior to this acceptance for service. The petitioner further averred that as per Rules the disease, which has led to an individual discharge or death will ordinarily be deemed to have arisen in service, if no Note of which was made at the time of individual's acceptance for military service, however, if medical opinion holds for reasons to be stated that such disease could not have been detected on medical examination prior to acceptance for service then the disease will not be deemed to have arisen during service. The petitioner has, therefore, prayed for issuance of writ of mandamus to the respondents to pay him the disability pension with effect from 19.1(1.93 in accordance with Rules along with interest @ 15% per annum and that Annexure 2 & 5 be also quashed. 3. The petitioner has, therefore, prayed for issuance of writ of mandamus to the respondents to pay him the disability pension with effect from 19.1(1.93 in accordance with Rules along with interest @ 15% per annum and that Annexure 2 & 5 be also quashed. 3. This writ petition has been opposed on the ground that the petitioner is not entitled to claim disability pension because his disability was a constitutional disorder and not connected with the services, that such disability was neither attributable to nor was aggravated by military service. The respondents have pleaded that at the time of the recruitment of an individual in the Army, only external medical examination is conducted and as such the ailment of the petitioner namely Cranio Pharyngioma could not be detected at that time and asserted that his claim for grant of disability pension has been rightly rejected. 4. The entire medical record of the petitioner was sent for, which was submitted by the respondents for the perusal of this Court. An affidavit of Lt. Col. (Dr.) K.K. Panicker, who was one of the members of the Medical Board has also been filed by the respondents. 5. I have heard the learned counsel for the parties at length and very carefully perused the record of this case and also closely scrutinised the medical record of the petitioner. 6. Shri Pyarelal, the learned counsel for the petitioner has strenuously canvassed that in view of the provisions contained in Regulation 173, Section IV, Disability Pension Award, it was incumbent for the respondents to have made a Note about the constitutional disability of the petitioner on his initial appointment in the Army and since no such Note was recorded at that time, the alleged disability suffered by him must be deemed to have arisen during service and the same must be treated as attributable to and aggravated during military service. In support of his contention he has placed reliance on the decisions in, Union of India v. Bodanlal Yadav [1994 (1) S.L.R. 390] Mohanlal v. Union and other [1995 (5) S.L.R. 183] and Union of India v. Shyamlal Malhotra [1995(6) S.L.R. 405] , wherein the Division Bench of Punjab & Haryana High Court has consistently held that the cause of disability which has led to the discharge of the person concerned from Army service will be deemed to have arisen in service if no Note of such disability was made at the time of entry in the Armed Force that he was suffering from such disability or unless such a Note is recorded at a subsequent date that the disease in question was such which could not have been detected by medical examination before he had joined the service. The Punjab & Haryana High Court in absence of such a Note allowed the disability pension for the petitioners, who were discharged from the Army for their disability. 7. Another case relied by Shri Pyarelal is that of Anil Kumar Misra v. Union of India [1996(5) S.L.R. 534] , wherein the learned S.B. of the Allahahad High Court has held that the disease, which leads to discharge of an individual from the Army is ordinarily deemed to have arisen in service if no Note of it is made at the time of acceptance of individual for service in Armed Forces and observed that the concept of pension has now been changed as it is not merely a bounty but it is a right to property and that under Art. 41 of the Constitution of India the State is under duty to provide public assistance to a disabled person. In that case the respondents were directed to pay the petitioner disability pension. 8. On the other hand, the contention of Shri Bagri is that at the time of initial recruitment only external medical examination is conducted and as such the petitioner's disease namely Cranio Pharyngioma could not he detected and, therefore, o such Note was recorded. The petitioner was operated on 24.3.92, which was followed by post operative radio therapy, which was concluded in June, 1993. According to Shri Bagri, the Cranio Pharyngioma is a constitutional one and that the same cannot he attributed to or aggravated by military service. The petitioner was operated on 24.3.92, which was followed by post operative radio therapy, which was concluded in June, 1993. According to Shri Bagri, the Cranio Pharyngioma is a constitutional one and that the same cannot he attributed to or aggravated by military service. He asserted that the Medical Board examined the petitioner thoroughly and gave its finding that his ailment ways not attributable to nor aggravated by military service, and his disability was assess d as 30%. He has, therefore, maintained that the petitioner is not entitled for disability pension. 9. 11 have given my most anxious and careful consideration to the rival submissions. The entitlement of disability pension is governed by the provisions of Pension Regulation 173, Section IV, which read ad infra : "173. Unless otherwise specifically provided, a disability pension may he 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 for the purpose of disability pension award, it is worthwhile to extract Rule 7(a) & (b) of Appendix 11 (Entitlement Rules): "7. In respect of disease, 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." 10. 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." 10. A combined reading of the afore quoted provisions indicates that the cause of disability, which has led to an individual's discharge shall ordinarily be deemed to have arisen in service (i) if no Note of it was made at the time of individual's acceptance for military service and (ii) if subsequently the medical evidence holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service then the disease will not be deemed to have arisen during service. In deciding on the issue of disability pension entitlement all the evidence, both direct & circumstantial should be considered and benefit of reasonable doubt will be given to the claimant and this benefit should be given more liberally to the claimant in field service cases. 11. In the instant case, Lt. Col. (Dr.) K.K. Panicker, who was one of the members of the Medical Board, which put the petitioner in the low medical category EEE, has deposed that the petitioner was diagnosed as a case of Cranio Pharyngioma (Operated) that on 24.3.92 his surgery was done at Army Hospital (Intra Luminal decompression), which was followed by post operative radio therapy at MTDS hospital Poona till June, 1992. He has further deposed that this disease Cranio Pharyngioma (Operated) is tumours usually cystic, developing in cell-rests to Rathikes pouch and may be located within sellaturcica or supracellar space, where they calcify, and that they are constitutional in origin. The symptoms of the said disease are one or the more of the followings : (i) head-ache; (ii) visual impairment; (iii) sleep disturbance; (iv) mental deterioration and personality change; (v) weight gain; and (vi) diabetes insipidus. Dr. Panicker has further deposed that the petitioner developed symptoms of abnormal behaviour due to sleep disturbance and diminution of vision i.e. vision impairment in February, 1992. The petitioner had significant impairment of vision in both eyes. He remained depressed and was unable to carry out his duties. His general condition was otherwise fair and his vital parameters were normal. Dr. Panicker has further deposed that the petitioner developed symptoms of abnormal behaviour due to sleep disturbance and diminution of vision i.e. vision impairment in February, 1992. The petitioner had significant impairment of vision in both eyes. He remained depressed and was unable to carry out his duties. His general condition was otherwise fair and his vital parameters were normal. On account of impairment in vision the petitioner was not keen to serve any more and, therefore, he was invalided from service mainly because of his vision impairment. He has further deposed that classification of Cranio Pharyngioma are tumours and such a disease could not be detected at the time of enrollment unless they are symptomatic by routine medical examination. He has also deposed that the petitioner developed afore mentioned symptoms during enrolment period (in service) and then he was found on medical examination to be a case of vision impairment, which he had aided and abated abnormal behaviour, and as such he was declared invalid for service. Dr. Panicker has further deposed that the said ailment was not on account of his performance of duties and that his vision impairment had developed in the course of time and in routine manner of the disease. 12. On the other hand, a perusal of the Primary Medical Examination Report, which was prepared by the Recruiting Medical Officer on 28.1.1976 at the time of recruitment of the petitioner clearly indicates that no Note was made therein that the petitioner was suffering from Cranio Pharyngioma in the year 1991, the petitioner was deputed for operational duties in "Operation Rakshak" having location in district Kapurthala, Punjab, where his efficiency and response to training was erratic and indifferent. As per report dated 23.2.92 of the Commanding Officer 20 Kumaon Regiment, he remained immersed in some thoughts, he was quiet, uncommunicative and aloof. He was diagnosed Cranio Pharyngioma and was operated at AHDC on 24.3.92, which was followed by radio therapy till July, 1992. He was examined by the Medical Board on 21.12.92, and its findings are quoted below : "A 34 years old serving soldier, a case of Craniopharyngioma (operated) in AHDC on 24 March, 1992 had full of radio therapy at Pune. Significant impairment of vision of right eye. Mentally depressed, unable to carry out normal duties. Diag.: CRANIOPHARYNGIOMAFindings : - Not attributable - Not aggravated by military service. - Disability 30%. Significant impairment of vision of right eye. Mentally depressed, unable to carry out normal duties. Diag.: CRANIOPHARYNGIOMAFindings : - Not attributable - Not aggravated by military service. - Disability 30%. It is worthwhile to mention that in the entire medical record of the petitioner, which has been submitted by the respondents for perusal of this Court, there is neither any medical opinion nor any report nor any reason has been stated that the disease Cranio Pharyngioma could not have been detected on medical examination prior to petitioner's acceptance of the service on 28.1.76 or till 21.12.92, when he was examined by Medical Board, In such circumstances, the deposition of Dr. K.K. Panicker in his affidavit dated 9.4.97 to the effect that the disease Cranio Pharyngioma could not be detected at the time of petitioner's enrolment in the Armed Force, cannot be accepted at this stage, because the Medical Board in its findings dated 21.12.1992, whereby it recommended for the invalidation of the petitioner did not mention along with reasons that such a disease could not have been detected on medical examination prior to petitioner's acceptance for service. The Medical Board also did not give any reason whatsoever as to why the disease Cranio Pharyngioma was not attributable to or aggravated by military service. Merely by writing that such a disease was not attributable to or aggravated by military service without giving any reasons, is not at all sufficient, because Rule 7(b) of the Appendix 11 (Entitlement Rules) specifically mandates that a disease, which has led to individuals' discharge or death will 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 unless subsequently medical opinion holds, for `reasons to be stated, that such a disease could not have been detected on medical examination prior to the acceptance of the individual concerned for service and only then such a disease will not be deemed to have arisen during military service. Therefore, in my considered opinion, in view of the unambiguous, express arid clear provisions of Pension Regulation 173 read with Rule 7(b) of the Appendix (Entitlement Rules), it will be deemed that the ailment Cranio Pharyngioma by with the petitioner was found to be suffering, had arisen in service, and hence the contention of Shri Bagri that such a disease was not attributable to or aggravated by the military service, cannot be accepted. I respectfully agree with the interpretation of relevant Rules given by the Punjab & Haryana High Court and Allahabad High Court in the cases cited supra on behalf of the petitioner. The petitioner is, therefore, entitled to disability pension as the cause of disability that led to his discharge from service had arisen while in service and there is no evidence to the effect that the petitioner had been suffering from such a disease prior to his joining the Army Service or that such a disease was constitutional and was not detectable on medical examination prior to his acceptance of service. 13. Consequently, this writ petition is allowed, the orders Annexure 2 and 5 rejecting petitioner's claim for the disability pension and his appeal respectively are hereby set aside and the respondents are directed to grant the benefit of disability pension to the petitioner. Necessary exercise for making the payment of the disability pension to him w.e.f. date of his discharge from military service. i.e. 19.1.1993 should be undertaken forthwith and finalised within a period of three months of submission of certified copy of this order and the payment of arrears be made to him within next one month thereto, failing which the respondents shall pay interest to the petitioner on the arrears of his disability pension amount (it 121, per annum w.c.f. 19.1.93. The medical record of the petitioner be returned to the respondents through Shri Bagri against the receipt thereof on the file. No order as to costs.Writ Petition Allowed - Orders Rejecting Disability Pension Set Aside - Respondents directed to Grant Benefit of Disability Pension to Petitioner. *******