Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 486 (JK)

Iqbal Mohd. v. Union Of India

2009-10-12

MANSOOR AHMAD MIR

body2009
1. Petitioner has invoked the jurisdiction of this Court for commanding the respondents to grant disability pension in his favour and to quash communication no. PAN/DP-2/907 93741103 dated 7/15th September 1998 on the grounds taken in the writ petition. 2. Respondents have filed the reply and resisted the petition. Precisely, the case of the petitioner is that he came to be appointed as Sepoy by the respondents and was posted at Baroda (Gujrat) in 886 DSC Palatoon in 1993-94, came to discharged. He applied for disability pension, came to be rejected vide impugned communication. 3. It is specifically averred that the petitioner came to be discharged on medical grounds. It is further averred that while performing duties at Baroda, difficult weather conditions, long and uninterrupted period, has adversely affected his eye sight. He was operated upon at Ahmadabad by Dr.D.S.Malik-Doctor of the Department. That operation was not successful one thereby his condition deteriorated. The petitioner has incurred disability while in active service. 4. The respondents have stated that the Medical Board opined that disease incurred by the petitioner was not connected with the service and the case of the petitioner for grant of disability pension was rejected. 5. The short question involved in the writ petition is whether the impugned order came to be passed rightly and whether the petitioner is entitled to disability pension? 6. It is beaten law of the land that Army Personal is entitled to disability pension if the disease (s) is/are incurred during active service, opinion of the Medical Board assumes great importance. The respondents were directed to produce the record, came to be produced today in the open Court. 7. Part III, compilation-opinion of the Medical Board contained so many clauses. It is opined that the disability/disabilities did not exist before entering into service. The Medical Board has not mentioned in the opinion that disease (s) could not be deducted by it prior to acceptance of the petitioners for service. But what is recorded in the opinion is that disease (s) are not connected with service. 8. It is not the case of the respondents that the petitioner was having such disease before his entry into service. It is also not the case of the respondents that it was not possible for the Medical Board to deduct such disease at the time when the petitioner entered into service. 8. It is not the case of the respondents that the petitioner was having such disease before his entry into service. It is also not the case of the respondents that it was not possible for the Medical Board to deduct such disease at the time when the petitioner entered into service. Thus, it can be said that the petitioner has incurred the disease (s) during the active service. My this view is fortified by the Apex Court judgment in case titled Union of India and ors. v. Keshar Singh. reported as 2007 AIRSCW 2760. It is apt to reproduce paras 3 and 5 herein:- "In support of the appeal learned Additional Solicitor General submitted that both learned Single Judge and the Division Bench have lost sight of para 7 (c). Both 7(b) and 7 (c) have to be read together. They are as follows:- "7(b) A disease which has 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. 7 (c) if a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service." 5. A bare reading of the aforesaid provision makes it clear that ordinarily if a disease has led to the discharge of individual it shall ordinarily be deemed to have arisen in service if no note of it was made at the time of individuals acceptance for military service. An exception, however, is carved out, i.e. if medical opinion holds for reasons to be stated that the disease could not have been detected by Medical Examination Board prior to acceptance for service, the disease would not be deemed to have arisen service. An exception, however, is carved out, i.e. if medical opinion holds for reasons to be stated that the disease could not have been detected by Medical Examination Board prior to acceptance for service, the disease would not be deemed to have arisen service. Similarly, clause (c) of Rule 7 makes the position clear that if a disease is accepted as having arisen in service it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions are due to the circumstances of duty in military service. There is no material placed by the respondents in this regard." 9. In the given circumstances, the impugned order is illegal and came to be passed in violation of the Army Pension Regulations, 1961. Accordingly, it is quashed and the respondents are directed to consider the case of the petitioner for granting disability pension within a period of three months from the date copy of this order is served on the respondents by the petitioner. The petition is accordingly, disposed of.