JUDGMENT Arun Mishra, J. :- The writ appeal has been preferred assailing the order dated 4-1-2006 passed in M.P. No.1114/1993 allowing the writ appeal preferred by the respondent quashing the orders (D and E), the respondent has been given the benefit of disability pension w.e.f. 3-3-1986. 2. The facts lie in narrow compass i.e. the respondent Hemant Kumar was enrolled in the Army Medical Corps on 30th January, 1979. After obtaining the basic Military training he was posted in the high altitude area of the Himalayas in the year 1979. Later he served in the western sector and after completing the trade training he developed some tonsil problem which was operated upon. It was caused due to his being affected at the high altitude area and the coolness at his place of posting. He could not remain in the area, thereafter he was posted in the western sector which has caused bleeding in the throat and he was on continued medication. He was admitted in hospital at Jabalpur and was declared a case of "Effective Disorder". Later, he was invalidated out of service as per order (A.1) dated 12-3-1986 after serving the army for 8 years. 3. The employee claimed disability pension. His claim was rejected as per order to 1 1-11-1986. Appeal preferred was also dismissed as per order (D) dated 31-8-1987. He preferred representations without any avil. 4. The case of the employer is that the employee was in Medical category 'A' when he was posted to high altitude which reveals that the surgery treatment did not make any impact on his physique. Disability was not contracted in the Army service. Decision has been taken in accordance with the entitlement and rules contained in Pension Regulations for the Army 1961 (Part-I) (hereinafter referred to as "Entitlement Rules"). "Effective Disorder" is not the disease mentioned in the Schedule, thus, the employee cannot claim disability pension being invalidated because of the disease, the claim has been rightly rejected. 5. Shri Shekhar Sharma, learned counsel for the appellant, has submitted that illness was not aggravated due to the military service, consequently, considering Rule 6 of the Entitlement Rules employee cannot claim permission as the Disability Medical Board has clearly certified that disease/disorder was not attributable to the service, thus, the impugned order passed by the learned single Judge be set aside. 6. 6. Captain Mahan Singh, learned counsel appearing on behalf of respondent-employee, has supported the impugned order. He has referred the recommendations made to the Medical invaliding Board. The recommendations so made indicate that aggravation was due to the service condition and stress, otherwise employee was fit to render the services, he could have been offered alternative employment as provided in para-4 of the Entitlement Rules. He has also referred to the Pension Regulations 173 of the Entitlement Rules which is quoted below :- "173. 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 a disability which is attributable to or aggravated by military service in non-battle casualty 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 rule in Appendix II". Rules 4, 5 and 6 of the entitlement. Rules are quoted below : "4. Invaliding from service is a necessary condition for grant of disability pension. An individual who, at the time of his release under the Release Regulations, is in a lower medical category than that in which he was recruited will be treated as invalidated from service JCO/OR and equivalents in other services who are placed permanently in a medical category other than 'A' and are discharged because no Alternative or Shelter Appointment can be provided, as well as those who having been retained in alternative employment but are discharged before the completion of their engagement "will be deemed to have been invalidated out of service. 5. The approach to the question of entitlement to casualty pensionary awards and evaluation of disabilities shall be based on the following presumptions :- PRIOR TO AND DURING SERVICE (a) member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance. (b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due to service. 6. (b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due to service. 6. Disablement of death shall be accepted as due to military service provided it is certified by appropriate medical authority that :- (a) the disablement is due to a wound, injury or disease which (i) is attributable to military service, or (ii) existed before or arose during military service and has been and remains aggravated thereby. This will also include the precipitating/ hastening of the onset of a disability. (b) the death was due to or hastened by - (i) a wound, injury or disease which was attributable to military service; or (ii) the aggravation by military service of a wound, injury or disease which existed before or arose during military service". 7. Learned counsel has also referred the summary of case placed before the invaliding Board which is quoted below : "DIAGNOSIS :- AFFECTIVE DISORDER (DEPRESSED TYPE) (ICD 296.b) ADMISSIONS 30-5-1985 TO 4-6-1985 M.H. KOTA 5-6-1985 TO 11-6-1985 M.H. JODHPUR 12-6-1985 TO 10-8-1985 M.H. AHEMADABAD 11-8-1985 TO 14-9-1985 M.H. JODHPUR 22-10-1985 TO DATE M.H. JABALPUR Complaints :- Heaviness in the head, feeling of apprehension sad feeling and poor appetite since March, 1985. HISTORY OF PRESENT ILLNESS : Started while serving with 418 FD AMS (KOTA) HISTORY OF PAST ILLNESS NIL relevant. FAMILY and PERSONAL HISTORY Parents alive and healthy. No history of mental illness in family. No history of drug abuse/ STD. CONDITION ON ADMISSION Psychotic individual, preoccupied with multiple complaints. Hospitalised in a state of extra pyramidal disturbances. TREATMENT and INVESTIGATION : Treated with ECT (6) at MH Ahemdabad and anti antidepressant drugs at MH Jabalpur. Investigation Blood T.LC 71W, DLC P-61,-L-34, M-O1, E-04, Hb 15.2 gm% ESR 07 mm fall in 1st hour Blood sugar Fasting 60 mg% PP-70 mg% x Ray skull, NAD VDRL - Non Reactor. OPINION OF LT COL T.VARGHESE GRADED SPECIALIST (PSYCHIATRY) MH JABALPUR Dt. 19-2-1986 A case of Affective Disorder (Depressed Type) (ICD 295.b) diagnosed and treated at MH Ahemdabad w.e.f. 12-6-1985 to 10-8-1985 with ECr (6) and drugs. He was then sent on 6 weeks s/L through MH Jodhpur. He relapsed during the sick Leave and was under the treatment of the local psychiatrist and the psychiatrist Medical college Jabalpur, until re-hospitalised on 22-10-1985 at MH Jabalpur. He was then sent on 6 weeks s/L through MH Jodhpur. He relapsed during the sick Leave and was under the treatment of the local psychiatrist and the psychiatrist Medical college Jabalpur, until re-hospitalised on 22-10-1985 at MH Jabalpur. He steadily improved over the period and is asymptomatic now. AFMSF-10 Dt 3 May, 1985 reports of personality characterized by despondency and lethargy. The illness was of insidious, on set around 85 with hypochondriacal delusions non-specific multi system complains like sinking brain, headache apprehensions depression restlessness etc. No precipitating factors. No past family history of mental illness. No history of drug abuse. He was under multiple systems of medical treatment and magical therapy. When re-hospitalised on 22-10-1985 in a state of extra pyramidal disturbances. In this hospital he submitted himself for nasal surgery. Barium swallow oesophargoscopy etc. to convince himself that he is suffering from cancer etc. Current mental status examination does not reveal active features of psychosis or of depression. However the hypochondrical bend of mind and tendency to despair at slightestness stress is still evident. He easily becomes tense frightened and anxious and looses his capacity for good directed behaviour. He is capable of working only in an absolutely stress free protected environment in total dependency. Recommended to be invalided out of service in cat. EEF (psy) sd/- (T.VARGHESE) Lt. Col. AMC GRADED SPL (PSY) In view of the above individual is brought before (MB) invaliding Medical Board". 8. It is apparent from Regulation 173 of the Entitlement Rules that person is entitled for disability pension in case he has been invalided out of service on account of a disability which is attributable to or aggravated by military service. Rule 4 of the Entitlement Rules provides that it is not in dispute that the employee was invalidated out of service and no alternative employment suitable to his low medical category could be provided therein. Rule 5 (a) contains the presumption that member is presumed to have been in sound physical and mental condition upon entering service exeept as to physical disabilities noted or recorded at the time of entrance Rule 5(b) provides presumption in the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due to service. As per Rule 6(a) aggravation should not be by Military service. 9. As per Rule 6(a) aggravation should not be by Military service. 9. In the instant case, the summary of the case placed before the invaliding Medical Board indicates that employee could still improved when his case was placed before the invaliding Medical Board. It was also mentioned in the recommendations quoted above that no past of family history of mental illness, no history of drug abuse was there. There was no such past history of employee. The current mental status examination did not reveal active features of psychosis or of depression. However, the hypochondrical bend of mind-and tendency to dispair at slightest stress was still evident. He easily became tense frightened and anxious and looses his capacity for good directed behaviour. He was capable of working only in an absolutely stress free protected environment in total dependency. Thus, it is apparent from the recommendations that it was due to stress, the aforesaid behaviour was generated. There was no past history. The employee had served by that time for 7 years. Thus, it is clear that there was aggravation caused by Army sendee and symptoms were generated due to stress. If it existed from earlier point of time, there would have been recurrence during 7 years he had served the army, all of a sudden the occurrence of disorder is indicative on facts, that the disorder arose due to the stress of service. In any case even if it is assumed that he was suffering with disorder before entering service, it was clearly aggravated due to stress of Military service, he was clearly entitled for disability pension, thus, the findings recorded by the learned single Bench in para-10 are found to be correct. 10. Learned counsel for the appellants has referred to the decision of the Apex Court in Union of India and others vs. Keshar Singh, Mil LJ 2007 SC 133 to contend that it is not for the Court to sit over the decision taken by the invaliding Medical Board. Counsel is right but the facts and circumstances of each of the case has to be considered considering the recommendations made background and history to the which aggravated the stress such as stress. In our opinion, the decision rendered by the learned single Bench is proper and legal. We also note the submission of Captain Mahan Singh appearing for respondent. Counsel is right but the facts and circumstances of each of the case has to be considered considering the recommendations made background and history to the which aggravated the stress such as stress. In our opinion, the decision rendered by the learned single Bench is proper and legal. We also note the submission of Captain Mahan Singh appearing for respondent. He has referred the decision in Sub-Lieutenant Chaman Azhar vs. Union of India and others, 2003(4) SLR 183, in which this Court considered the Rules 5, 6 and 9 of the Entitlement Rules of Casualty Pensionary Awards to the Armed Forces Personnel, 1982; and held that no such Disorder was detected when employee entered into service when he was medically examined and it was only after two years, such an Disorder was detected. The presumption available under Rule 5 was applied that the disability was due to the Military service. In the instant case, service was rendered for seven years, thereafter the disease of "Disorder" was found. This presumption enacted under Rule 5 is clearly attracted to the factual scenario obtainable in the instant case. 11. Learned counsel for appellant has also referred the decision of the Supreme Court in Civil Appeal No. 13272/96, Union of India and another vs. Shri Baljit Singh decided on 11th October, 1996, in which it has been opined by the Apex Court that when disability pensions sought for and a claim is made, it must be affirmatively established, as a fact, as to whether the injury sustained was due to military service or was aggravated which contributed to invalidation for the military service. In the instant case, aggravation was apparently due to Military sendee, thus, the decision relied comes to the rescue of employee. 12. Resultantly, we hold the employee is entitled to disability pension. Writ appeal being devoid of merit, is hereby dismissed. However, we leave the parties to bear their own costs as incurred in the appeal. Appeal dismissed.