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2011 DIGILAW 321 (JK)

Som Nath v. Union of India & Ors.

2011-06-10

MOHAMMAD YAQOOB MIR

body2011
1. Grant of disability pension in favour of the petitioner has been declined vide order No. G 3/95/27/1192/JK Rif, dated 10th of April' 1992 issued by Chief Controller of Defence Accounts (Pen) Allahabad. In terms of the said order it has been decided that the disability viz., BILATERAL SENSORI NEURAL NEITHER ATR TO NOR ACR BY, based on which invalidment of the petitioner has been ordered (i) is not attributable to the military services, (ii) does not fulfill the condition that it existed before and has remained aggravated thereby; (iii) is attributable to/aggravated by service but assessed at less than 20%. Same order is stated to been conveyed to the petitioner on 29th of December' 2011. Aggrieved thereof, instant petition has been filed. 2. Petitioner has been enrolled on 24th of January' 1980 as Sepoy and was allotted No. 13744576-K. After rendering nearly twelve years of service has been invalidated out on medical grounds under Army Regulations on 10th of November' 1991. Petitioner, admittedly at the time of his enrolment, was found medically fit as no disease whatsoever was detected at that time nor has anything as such been recorded against him. According to learned counsel for petitioner, the disease suffered by petitioner was due to stress and strain of the Military service. When he was invalidated out, he was examined by the Medical Board and was recommended for grant of disability pension as the Board has assessed the disability as 40 per cent and has also recorded that the disease is attributable to Military service. Ignoring the recommendation and the opinion of the Medical Board, the disability of the petitioner has been decided not to be attributable to Military service. 3. Respondents in opposition, in their objections, have stated that duly constituted Medical Board assessed the disability of the petitioner to be at 40 per cent for two years, neither attributable nor aggravated by the Military service. It is also stated that the petitioner was placed under Low Medical Category CEE (Permanent) w.e.f 31st of December' 1988 and was retained in service in public interest being low medical category under shelter employment. It is also stated that at the time of enrolment, recruiting medical officer was not specialized Doctor. It is also stated that the petitioner was placed under Low Medical Category CEE (Permanent) w.e.f 31st of December' 1988 and was retained in service in public interest being low medical category under shelter employment. It is also stated that at the time of enrolment, recruiting medical officer was not specialized Doctor. The constitutional disorders may show its symptoms during the period of Military service at any time even due to the reasons not attributable to the Military service as in the case of the petitioner. It is also stated that the petitioner's case does not meet the eligibility conditions for grant of disability pension as envisaged under Rule 173 of the Pension Regulations for the Army, 1961, Part I. 4. Rule 173 reads as under:- “ 173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalidated out of service on account of disability which is attributable to or aggravated by military service in non-battle causality 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.” Plain wording of Rule would provide for grant of disability pension in favour of an individual who is invalidated out of service on account of disability attributable to or aggravated by the military service. Rule further provides that attributability or aggravation by military service has to be determined under the Rule in Appendix II. In terms of Rule 4 Appendix II (entitlement rules), for grant of disability pension, pre-condition is that the individual must have been invalidated out of service. 5. Rule 5 reads as under:- “5. The approach to the question of entitlement to causality pensionary awards and evaluation of disabilities shall be based on the following presumptions:- PRIOR TO AND DURING SERVICE: (a) 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. The approach to the question of entitlement to causality pensionary awards and evaluation of disabilities shall be based on the following presumptions:- PRIOR TO AND DURING SERVICE: (a) 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.” In terms of Rule 5, when a member has been enrolled and no physical disability is noted or recorded at the time of entrance, he is presumed to have been in sound physical and mental condition. In case he is subsequently discharged from service on medical grounds, any deterioration in his health is presumed to have taken place due to service. Present case is covered by the said Rule because admittedly on selection and enrolment, petitioner was medically examined, no note was recorded about any disability, therefore, he is presumed to have been physically sound and his subsequent diseases or deterioration in health is treated to be due to service. 06. The aforesaid rule is controlled by Rule 14 of the said Rules, which reads as under:- “14. In respect of disease, the following rule will be observed. (a) Case in which it is established that conditions of Military Service did not determine or contribute to the onset of the disease but influenced the subsequent courses of all diseases, will fall for acceptance on the basis of aggravation. (b) A disease, which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service, if no note of it was made at the time of the individual's 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. (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.” 07. (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.” 07. Sub-rule (b) would provide that in case medical opinion holds, for reasons to be stated, that the disease could not have been detected prior to acceptance of service, the disease will not be deemed to have arisen during service. While going through the record as made available, there is no such medical opinion to indicate that the disease could not have been detected on medical examination prior to acceptance of service. 08. In the judgment rendered in OWP No. 443/1999 captioned Anil Kumar Vs. Union of India & ors., it is noticed as to what has been held by the Division Bench of this Court in the case captioned Union of India Vs. Rattan Lal, 1999 (2) SCT 39, “i/. That in case mention is not made regarding the disease or disablement at the time of entry in service, then it is to be presumed that the disability occurred during the course of service.” 09. Same view has been taken in the judgment delivered in Appeal (Civil) No.1960 of 2008 captioned Union of India & ors Vs. Surinder Singh Rathore dated 13th of March' 2008 i.e., “the Medical Board's opinion was clearly to the effect that the ailment suffered by the appellant was not attributable to the military service and also not aggravated due to it.” 10. The Medical Board proceedings as placed on record by both the petitioner as well as the respondents clearly shows that the disability suffered by the petitioner is attributable to Military service and it is only on that basis disability pension has been recommended by the Board. How the impugned order rejecting the case for disability pension in opposition to the recommendation of the Medical Board, how it has opined that the disability is not attributable to the Military service, is a question which remained to be answered. How the impugned order rejecting the case for disability pension in opposition to the recommendation of the Medical Board, how it has opined that the disability is not attributable to the Military service, is a question which remained to be answered. After all a Medical Board possesses the requisite expertise and when experts i.e., Medical Board has recorded its opinion that the disability suffered by the petitioner is attributable to the Military service and has also recommended the case for disability pension, same cannot be brushed aside by the authority who has issued the order of rejection when the authority concerned has no such expertise. No cogent ground is forthcoming so as to take a view opposite to what has been taken by the expert body i.e., Medical Board. 11. In the backdrop of the law as has been laid down in the above referred judgments, it has to be stated that every case has to be considered in the background of its own facts and features. In the instant case Medical Board has opined in favour of the petitioner that the disability suffered by the petitioner is attributable to the Military service, the opinion of the Medical Board has a prevailing force. From the records, it is nowhere made mention of that the petitioner at the time of enrolment was suffering from any such disease. In view of the rule position quoted above, even otherwise it has to be held that the disease suffered got aggravated due to Military service. 12. While summing up what emerges is that the order impugned no. G 3/95/27/1192/JK Rif., dated 10th of April' 1992 does not sustain, as such, is quashed. The respondents are directed to accord consideration afresh to the case of the petitioner for grant of disability pension from the date he has been invalidated out of service. Let the exercise of accord of consideration be completed within eight weeks from today and result thereof be communicated to the petitioner. 13. Petition, accordingly succeeds.