Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 235 (JK)

Jagtar Singh (Ex. Hav. ) v. Union Of India

2009-05-15

SUNIL HALI

body2009
1. The medical category of the petitioner was down graded and as a result whereof, he was invalidated from service on account of disability. Disability pension has been denied to petitioner on account of the fact that the disease was not incurred by him during the course of service rendered in the Army. Petitioner has questioned this order in this writ petition. 2. The petitioner came to be enrolled in the year 1984 as Sepoy and was promoted as Havaldar in the year 1999. Petitioner developed headache and pain all over body and after examination by the doctor in the Military Hospital, it was found that he was suffering from Hypertension. As a result whereof, petitioner was put in low medical category by the Medical Board 5-12-1997. On re-examination conducted on 6-12-1998, it was found that petitioner was still suffering from disability of primary hypertension and was referred to medical specialist. A show cause notice was served on the petitioner on 22-10-2000, why he should not be discharged from service on account of his low medical category by invoking rule 13 (3) of the Army Rules. The petitioner finally came to be discharged on 31-3-2001. His claim for disability pension was rejected on 31-8-2001. Petitioner states that he was discharged from service and also denied disability pension, despite the fact that the disease was incurred by him on account of military service. Since nothing was detected at the time of entry in the service, presumption is that the disease was incurred by the petitioner during military service. 3. On the other hand, respondents state that petitioners invalidating disability was considered neither attributable to nor aggravated by military service, as it is constitutional disease which exists in the body. As such, his claim for disability pension has rightly been rejected. 4. I have heard the learned counsel for the parties and perused the record. To appreciate the controversy, it is necessary to refer the provision relating to the grant of disability pension. Army Regulation 173 deals with this eventuality. For facility of reference, Regulation 173 is quoted hereinbelow: "Army Rule 173 provides as under: Unless otherwise specifically provided, disability pension may be granted to an individual who is invalidated from service on account of disability which is attributable to or aggravated by the military service and is assessed at 20 percent or over." 5. For facility of reference, Regulation 173 is quoted hereinbelow: "Army Rule 173 provides as under: Unless otherwise specifically provided, disability pension may be granted to an individual who is invalidated from service on account of disability which is attributable to or aggravated by the military service and is assessed at 20 percent or over." 5. The import of the aforementioned Rule reveals that a person becomes entitled to disability pension, if he is invalidated from service on account of disability attributable to or aggravated by the military service and the same is assessed at 20% or over. Entitlement to receive disability pension is permissible only in cases where the disability is attributable to or aggravated by the military service. It is to be noted that the Medical Board which gives the opinion, has to record reasons at the time boarding out the person that the disease could not have been detected at the entry stage and could not be aggravated during the course of military service. This is only exception provided under the regulation, which would disentitle the person from receiving disability pension, if the disease was not detected at the time the petitioner was employed in the Army. Applying this principle to the present case, it is revealed that petitioner was stated to have suffered from hypertension. It cannot be said that this disease could not be detected at the time of his entry in the service. It is also to be noted that the proceeding of the Medical Board conducted on 5-12-1997 states that petitioner was suffering from primary hypertension. The certificate does not record that the disease was constitutional disorder. This finding is not recorded in the certificate but finds its expression only in order dated 31-8-2001. The stand of the respondent is that claim of petitioner for disability pension was rejected on the ground that the disability was attributable to or aggravated by the military service. It was not the case of respondents that petitioners disability was less than 20%. The order of rejection of disability pension dated 31-8-2001 states that the disease was constitutional in nature and not related to service. Faced with this situation, it can be safely stated that disability to petitioner has arisen because of military service. I fortify my view by a Division Bench Judgement of this court in case titled Union of India and Ors Vs. Faced with this situation, it can be safely stated that disability to petitioner has arisen because of military service. I fortify my view by a Division Bench Judgement of this court in case titled Union of India and Ors Vs. Surjeet Kumar, reported as 2007(2) JKJ 388, in which it is held : "In view of the position demonstrated by the above quoted two rules of the Entitlement Rules, the position becomes quite clear that in case the subsequent medical opinion of the Board of Doctors , holds the disease to be a Constitutional disease, the individual would be disentitled to claim disability pension. The medical opinion of the Board of Doctors would, however, prevail only if the Board had recorded that the disease was such which could not have been detected on individuals medical examination at the time of his acceptance in the Army Service. The appellants have not placed anything on records nor is it their case that the medical opinion had given reasons in its opinion report that the disease suffered by the respondent was such which could have been detected on respondents medical examination at the time of his acceptance in Army service." 6. In another judgment of the co-ordinate bench of this court entitled Karnail Singh Vs. Union of India and Others, reported as 1998 KLJ 4, it is observed as under : "Held that an individual serving in the army becomes entitled to disability pension if he was invalidated from service on account of disability which was attributable to or aggravated by the military service and was assessed 20% or over for being placed permanently in low medical category. If the individual is to be invalidated on account of a disability which was noticed at the time he entered military service, the only inference which can be drawn is that disability has arisen because of military service." 7. From the discussion made hereinabove, it is manifestly clear that disability to the petitioner was incurred during military service and was not constitutional disorder. I, therefore, set aside Order No. SR/13749686/12/DP dated 31-8-2001 and direct that disability pension shall be paid to the petitioner w.e.f. the date he was discharged from service. Petitioner is also entitled to receive interest at the rate of 6% per annum Petition allowed.