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2010 DIGILAW 442 (JK)

Tilak Raj v. Union Of India

2010-08-13

Virender Singh

body2010
1. After rendering service of 11 years and 153 days in the Army, the petitioner was invalided out of service with effect form 01-07-2000 due to disease known as `BILATERAL S.N.HL. SEVERE DEGREE’. The petitioner asked for disability pension, but he was not found entitled for the same. An appeal was also filed by him against rejection of the claim, but to no effect. This constrained him to knock at the door of this Court. The petitioner has attached all the relevant documents with the instant petition for perusal of this Court. 2. The stand of the respondents is that they have adhered to all the Pension Regulations and found that the petitioner was not entitled for disability pension within the framework of Rule 173 and Entitlement Rules. However, he was found entitled to the invalid pension admissible under Rule 197 of the Pension Regulations for the Army 1961 (Part-I) on account of disability assessed at less than 20 percent and is getting the same regularly alongwith other pensionary benefits. Even this entitlement is on account of rendering service for more than ten years. The stand of the respondents further is that it is the medical disorder for which the petitioner has been discharged from service, but not attributable to military service, being a constitutional disorder. It is also not aggravated by military service. Therefore, the petitioner is not justified in claiming the disability pension. 3. Heard learned counsel for both the sides and perused the record. 4. Regulation 173 of Pension Regulation, 1961 (for short to be referred as the Pension Regulation) postulates that unless, otherwise specifically provided, disability pension considering of service element and disability element may be granted to an individual who is invalided out of service on account of disability, which is attributable to or aggravated by military service and is assessed at 20 percent or above. The question as to whether the disability is attributable to or aggravated to by military service shall be determined under rule in Appendix-II. If a person contracts a disease during his military service, under the rule position, his disablement is to be accepted as due to military service if it is certified by appropriate medical authority that it is attributable to or aggravated by military service. If a person contracts a disease during his military service, under the rule position, his disablement is to be accepted as due to military service if it is certified by appropriate medical authority that it is attributable to or aggravated by military service. Where Medical Board in respect of an individual invalided out of service on being placed in requisite medical category, has not certified that the disease causing the disability was due to the conditions of military service, such individual would not be entitled to disability pension, the reason being that an individual while in military service on account of reasons other than the reason of his being in military service can also contract a disease. 5. The Hon’ble Division Bench of this Court in a case LPA (SW) No.212/2006 titled "Union of India v. Ravinder Kumar" decided on 31.12.2007, on account of Solitary Generalized Tonic Colonic Seizure disease with 20 disability, where a Medical Board while discharging the army Sepoy had opined the same to be neither attributable to nor aggravated by military service, while dismissing the appeal filed by Union of India against the judgment of learned writ Court granting the disability pension, dealt with all the relevant provisions/Regulations including Regulation 423 and also referring to the judgments on issue handed down by Hon’ble Supreme Court, ultimately observed that though the aforesaid disease for which the army personnel invalided was constitutional in nature, yet it was to be deemed to have arisen during service on the basis of presumption under clause (c) of Regulation 423, falling in category B of Annexure-III to appendix II being a neurotic disorder having been aggravated by stress and strain. In the said case, the appellant/Union of India, however, had not placed on record to show that the stress and strain could not have been the result of conditions of military service. 6. Mr. Saini besides relying upon the aforesaid judgment, also banks upon the following two judgments rendered by this Court:- "1. Union of India and ors. v. Surjeet Kumar, 2007 (2) JKJ 388 D.B 2. Madan Lal v. Union of India & ors., 2009 (3) JKJ 516 " 7. Mr. Rabstan has been very fair in making a statement at the bar that the disablement in case of the petitioner is 40%. This fact is evident from the record also produced by him for the perusal of the Court. 8. Madan Lal v. Union of India & ors., 2009 (3) JKJ 516 " 7. Mr. Rabstan has been very fair in making a statement at the bar that the disablement in case of the petitioner is 40%. This fact is evident from the record also produced by him for the perusal of the Court. 8. Once the disability is assessed at more than 20%, rule 197 of Pension Regulation, in any case, for invalid pension is not attracted. For reference, rule 197 is reproduced as under: "197. Invalid pension/gratuity shall be admissible in accordance with the Regulations in this chapter, to-- (a) an individual who is invalided out of service on account of a disability which is neither attributable to nor aggravated by service (b) an individual who is though invalided out of service on account of a disability which is attributable to or aggravated by service, but the disability is assessed at less than 20% and (c) a Low Medical Category individual who is retired/discharged from service for lack of alternative employment compatible with his Low Medical Category." 9. According to Mr. Rabstan, the case of the petitioner is considered for invalid pension under rule 197 (b). If it is so, then the disability of the petitioner is taken as attributable or aggravated by service. However, the issue for consideration before this Court is, whether the petitioner is entitled to disability pension or not. 10. In terms of Regulation 173 Appendix-II sub rule-7 makes it incumbent that a note is to be appended regarding the disease or injury of an individual at the time of his initial recruitment by the Medical Board. However, the medical opinion holds for the reasons to be stated that the disease could not have been detected on medical examination prior to the acceptance in the service. At the time of boarding out, it is also required to indicate that the disease could not have been detected at the time of initial recruitment, and at the same time, it could not have been aggravated during the course of military service. 11. Let us examine this case from that angle only. 12. As stated above and also clear from the medical record produced by Mr. Rabstan that it is a case of diminished hearing of both the ears. The medical term is reproduced herein above. 11. Let us examine this case from that angle only. 12. As stated above and also clear from the medical record produced by Mr. Rabstan that it is a case of diminished hearing of both the ears. The medical term is reproduced herein above. Had this disablement been there at the time of the recruitment of the petitioner, the Medical Board would have immediately pointed out the same and he would have not been recruited at all. The matter does not rest here. As per the Medical Board’s opinion, the time of onset of symptoms is shown as 7 = years back and also shown to be progressive in nature. Admittedly the petitioner has put in 11 years and 153 days of service. This indicates that this disablement had appeared during the period he was rendering service to the military. The probability of aggravation as per the medical opinion itself is due to repeated exposure to noise of small arms fire. Therefore, there remains no doubt to hold that the disablement for which the petitioner is invalided is attributable to military service and further aggravated due to the condition of military service. It is not a case of constitutional defect in nature. The record produced speaks volumes of the fact that the disability rendering the petitioner invalid is attributable to military service only entitling him to disability pension and it is not a case of invalid pension. It goes without saying that his legal right has been snatched by the respondents. 13. The case of the petitioner is rather on better footing than the one referred to herein above in Ravinder Kumar’s case (supra) as in that case, the disability was presumed to be attributable to military service and in the case at hand, it is proved. 14. As a sequel to the aforesaid discussion, the present writ petition is allowed as prayed for. The respondents are directed to grant disability pension to the petitioner from the date he has been discharged from service. However, it is made clear that invalid pension already being paid to the petitioner regularly as stated by Mr. Rabstan, shall be adjusted towards disability Pension as admittedly the disability pension has to be more than the invalid pension. The respondents are directed to grant disability pension to the petitioner from the date he has been discharged from service. However, it is made clear that invalid pension already being paid to the petitioner regularly as stated by Mr. Rabstan, shall be adjusted towards disability Pension as admittedly the disability pension has to be more than the invalid pension. Let this exercise be completed by the respondents within a period of three months, from the date, copy of the order is conveyed to them, which shall be the responsibility of the petitioner only. Any delay in not granting relief to the petitioner within the stipulated period shall entitle him to receive interest @ 7% P.A from the date the amount becomes due to him. 15. Record be returned to Mr. Rabstan. Disposed of accordingly.