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2009 DIGILAW 42 (JK)

Manjeet Singh v. Union Of India

2009-02-06

SUNIL HALI

body2009
1. The petitioner was boarded out of the Army on account of low medical category, which was determined by the Medical Board. The Medical Board had found that the petitioner was suffering from Generalised Tonic Clonic Seizure and Neurotic Depression diseases which were both found invalidating disabilities. He was found not to be entitled to the disability pension as per para 173 of pension Regulations for the Army, 1961 (Part-1). Both these disabilities were neither attributable to nor aggravated by the military service. He was accordingly discharged from the Army service on the medical grounds under the Army Rule 13(3) item III (v) read with Sub Rule 2 A of 1954 w.e.f. 31.12.2001 (AN) and his order of discharge was finally approved on 01.01.2002. It is this order which has been questioned by the petitioner in this writ petition. 2. The brief facts of the case are that the petitioner came to be appointed on 6.4.1999 after having been declared fit by the Medical Board and was categorized as AYE. During the tenure of his service in the army, he was referred to Command Hospital, Chandimandir on 29.5.2000, where on scrutiny by the Medical Board his medical category was lowered down from AYE to CEE. The Release Medical Board of the petitioner was held at Military Hospital, Jabalpur on 8.10.2001, who assessed his disability Generalised Tonic Clonic Seizure at 20% for two years, disability Neurotic Depression at 11-14% for two years and composite assessment of both the disabilities were assessed above 20% for two years. The Board in its opinion found that both the disabilities are constitutional in nature, hence unconnected with the military service. 3. Learned counsel for the petitioner states that disabilities of the petitioner found by the Medical Board were attributable to his military service. He had incurred this disability on account of stress and strain involved in the army service. The petitioner claims that he is entitled to disability pension in terms of pension Regulation 173 of the Army Rules. The other contention of the petitioner is that he is also entitled to shelter appointment in the Army. 4. On the other hand, leaned counsel for the respondents states that the disabilities found by the Medical Board are constitutional in nature and unconnected with the military service. The other contention of the petitioner is that he is also entitled to shelter appointment in the Army. 4. On the other hand, leaned counsel for the respondents states that the disabilities found by the Medical Board are constitutional in nature and unconnected with the military service. It is further submitted that on account of his low medical category, he can not be adjusted in the Regiment for shelter appointment. 5. I have heard learned counsel for the parties and perused the record. 6. The facts in the writ petition are not in dispute. The only question required to be determined is, as to whether the petitioner is entitle to disability pension under the Army Rules or not. The Regulation 173 is reproduced as under:- Unless otherwise specifically provided, a disability pension may be 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 % or over. Plain reading of the above regulation reveals that a person is become entitled to disability pension, if he is invalidated out of service on account of disability, which is attributable to or aggravated by military service and assessed at 20 % or over. 7. The question whether a disability is attributable to or aggravated by military service shall be determined under the rules appended with Appendix-II. 8. The relevant entry in Appendix-II is contained in paragraph 2, 3 and 4 which reads as under:- 2. Disablement or death shall be accepted as due to military service, provided it is certified that:- (a) the disablement is due to 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 (b) the death was due to or hastened by:- (i) a wound, injury or disease which was attributed to military service, or (ii) the aggravation by military service of a wound, injury or disease which existed before or arose during military service. Note: The rule also covers cases of death after discharge/invaliding from service. 3. There must be a casual connection between disablement and military service or attributability or aggravation to be conceded. 4. Note: The rule also covers cases of death after discharge/invaliding from service. 3. There must be a casual connection between disablement and military service or attributability or aggravation to be conceded. 4. In deciding on the issue of entitlement all the evidence, both direct or circumstantial, will be taken into account and the benefit or reasonable doubt will be given to the claimant. This benefit will be given more liberally to the claimant in the field service cases. 9. Aforementioned relevant entries indicate that injury or disablement or both shall be attributable to the military service, if conditions set out hereinabove above are satisfied. The aforementioned paragraphs clearly reveal that if the disease or injury exists prior to joining the military service and gets aggravated during the service in the army, it shall also be attributed to the military service. Any disease, which cannot be detected at the entry level, in that eventuality, the medical opinion must record the reasons indicating that the disease could not have been detected on medical examination prior to acceptance of the service. The Regularization 7-(b) of the Army Rule is quoted herein below:- 7-(b). A disease which had led to an individuals discharge or death will ordinarily be deemed to have arisen in service, if no note of it was made at the time of the individuals 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. Conjoint reading of the aforementioned regulations would reveal the following things:- A). No disability pension is payable, if injury is not attributable or arisen during the military service. B) That if the injury exists prior to the acceptance of the service, but aggravated during the military service, it shall be deemed to have arisen during service. C) That medical board must give reasons that disease could not have been detected on medical examination prior to acceptance of the service, in case injury or disease could not be detected at the time of acceptance of service. D) That if the injury exists prior to the acceptance of the service, same cannot get aggravated during the military service. 11. D) That if the injury exists prior to the acceptance of the service, same cannot get aggravated during the military service. 11. The disability recorded by the Medical Board i.e. Generalised Tonic Clonic Seizure and Neurotic Depression are clearly connected with the functioning of the nervous system. It can be stated that such type of diseases which are congenital and cannot be detected at the time of acceptances of the service. It cannot be ruled out that more stress can lead to the aggravation of these injuries or diseases. It is in this backdrop that the reason is to be recorded by the Medical Board that the disease could not have been detected on medical examination prior to acceptance of the service and would not get aggravated during the tenure a person remains in service. The Medical Board has to rule out that this type of disease cannot be related to any stress which a person undergoes. Underlining idea is that a person who is afflicted with such type of diseases cannot be permitted to continue in the Army service. The reasons which are required to be given by the Medical Board has to be clearly stated that such disease would not get aggravated during the course of employment of a person in the army. While examining the report of the Medical Board, it only states that the disease is constitutional in nature without explaining the expression constitutional disorder. 13. This, in my opinion is not sufficient compliance of Regulation 7-(b) of the Army Regulations. The Medical Board had to give reasons, but the same have not been given in the present case. In the absence of any reason by the Board, it can also be said that such disease or injuries can be aggravated during the military service. 14. I, therefore, hold that there is no compliance of regulation 7 (b) of the Army Regulation, as such, the order disentitling the petitioner from disability pension cannot be sustained. 15. Coming to the second contention of the petitioner that he is entitled to shelter appointment, is not sustainable. It is averred by the respondents in their reply that on account of low medical category of the petitioner, he can not be given shelter appointment, as such shelter appointment was not commensurate with his medical category. 16. 15. Coming to the second contention of the petitioner that he is entitled to shelter appointment, is not sustainable. It is averred by the respondents in their reply that on account of low medical category of the petitioner, he can not be given shelter appointment, as such shelter appointment was not commensurate with his medical category. 16. The disability of the petitioner is 20% and above, as such, he is entitled to disability pension. I, therefore quash order dated 5.5.2004 passed by the respondent no. 3 and order dated 23.11.2003 and accordingly, direct the respondents to grant disability pension in favour of the petitioner from the date he was discharged from service. Let this exercise be completed by the respondents within a period of four months from the date a copy of this order is served upon them. In case the disability pension is not released in favour of the petitioner, with in the above said period, petitioner shall be entitled to interest @ 7.5 %. Disposed of alongwith connected CMP.