JUDGMENT Mr. Ranjan Gogoi, C.J. (Oral) - This Letters Patent Appeal is directed against the judgment and order dated 24.4.2002 passed by a learned Single Judge of this Court in Civil Writ Petition No.10293 of 2000. By the said order, the writ petition filed by the appellant seeking disability pension has been dismissed by the learned Single Judge. 2. The facts that will be required to be noticed for the purpose of the present adjudication may now be stated. 3. The appellant/writ petitioner joined the Indian Army as a Sapper on 31.12.1982. According to the appellant, at the time of his entry into military service, he had to go through a rigorous medical examination in the course of which he was found to be free from any disease/disability. However, according to the appellant, in May/June, 1984 he took part in the boxing competition in the course of which he was hit on the head. Thereafter, he retired to his barracks and at night he had vomited and became unconscious. His medical evaluation revealed that his left kidney was not functioning and he was put in medical category ‘EEE’ on account of Renovascular Hypertension. Thereafter, he was invalidated from service. The claim of the appellant for disability pension was rejected by the respondents on 10.5.1985 on the ground that the disease he was suffering from was neither attributable to military service nor had become aggravated due to such service. According to the appellant, he had run from pillar to post to have his grievances settled, failing which, he was left with no option but to file the writ petition in the year 2000. 4. The writ petition was contested by the respondents by filing a written statement/reply wherein it was stated that the disease that the appellant was suffering from was not attributable to military service nor was it aggravated due to such service. According to the respondents, merely because at the time of the entry into military service the disease in question was not detected, it cannot be said that the same had developed while the appellant was in service and the same was on account of the military service rendered by him. 5. According to the respondents, merely because at the time of the entry into military service the disease in question was not detected, it cannot be said that the same had developed while the appellant was in service and the same was on account of the military service rendered by him. 5. The learned Single Judge hearing the writ petition took the view that the writ petition was inordinately delayed and no explanation was forthcoming as to why the appellant had approached the Court 15 years after the rejection of his claim for disability pension. The learned Single Judge also took the view that there was nothing on record to enable the Court to come to the conclusion that the disease in question was on account of military service. Therefore, on both the aforesaid counts the learned Single Judge found the writ petition to be without any merit and substance. It was, accordingly, dismissed giving rise to the present appeal. 6. We have heard Shri Arun Singla, learned counsel for the appellant and Shri Gurpreet Singh, learned Senior Central Government Standing Counsel. 7. Arguing on the question of delay, the learned counsel for the appellant has submitted that when a benefit which has been denied is recurring in nature a writ petition claiming such benefit should not be dismissed on grounds of delay. Rather, the relief sought should be granted though the extent thereof can be scaled down by the Court restricting the operation of the benefit to a fixed period of time prior to the institution of the writ petition. In this regard, reliance has been placed on two judgments of the Apex Court i.e. : (i) Shiv Dass v. Union of India and others, AIR 2007 Supreme Court 1330; and (ii) Union of India and others v. Tarsem Singh, (2008) 8 Supreme Court Cases 648. 8. Arguing further, the learned counsel has submitted that even if the writ petition filed by the appellant is considered to be delayed, as denial of pension amounts to denial of a recurring benefit, relief should not be denied though the same can be suitably scaled down. 9. 8. Arguing further, the learned counsel has submitted that even if the writ petition filed by the appellant is considered to be delayed, as denial of pension amounts to denial of a recurring benefit, relief should not be denied though the same can be suitably scaled down. 9. On merits, the learned counsel has submitted that the appellant being free from the disease in question at the time of his entry into service, it must be understood and accepted that he had developed the same while in service and the reasons therefor have to be understood to be the nature of service rendered by the appellant as a member of the armed forces. Therefore, according to the learned counsel for the appellant, the disease in question is wholly attributable to military service rendered by the appellant which makes him entitled to the disability pension under the relevant Rules. 10. Controverting the submissions advanced on behalf of the appellant, the learned counsel for the respondents has vehemently contended that no inference, as suggested on behalf of the appellant, can reasonably be drawn in the present case even if it is to be assumed that the appellant was free from any such disease at the time of his entry into military service. The learned counsel has submitted that under the relevant Rules, Regulations and the norms in force, it has to be established that there is some relationship between the disease contracted/developed and the service rendered; like service in high altitude; service under stress and strain, etc. etc. In fact, referring to the Annexure III to Appendix II to the Pension Regulations (details of which will be noticed later), the learned counsel has submitted that the said enclosure contains a list of several diseases which are attributable to service in the military under different conditions. The case of the appellant, it is pointed out, is not attributable to any of the situations contemplated by the aforesaid list. 11. Having noticed the submissions advanced on behalf of the rival parties, it will be necessary for this Court to take note of the relevant provisions of the Pension Regulations and the Entitlement Rules framed by the Ministry and included in Appendix II to the Pension Regulations :- Regulation 173: “173. 11. Having noticed the submissions advanced on behalf of the rival parties, it will be necessary for this Court to take note of the relevant provisions of the Pension Regulations and the Entitlement Rules framed by the Ministry and included in Appendix II to the Pension Regulations :- Regulation 173: “173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 percent or over. The question whether a disability is attributable to or aggravated by military service shall be determined under the rules in Appendix-II.” Rule 5: (Entitlement Rules) “Rule 5. The approach to the question of entitlement to casualty pensionary awards and evaluation of disabilities shall be based on the following:- Prior to and During Service (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.” Rule 9 : “Rule 9. Onus of Proof. The claimant shall not be called upon to prove the conditions of entitlement. He/she will receive the benefit of any reasonable doubt. This benefit will be given more liberally to the claimant in field/afloat service cases.” Rule 14: “Rule 14. In respect of diseases, the following rule will be observed:- (a) 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 course of the disease 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. 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.” Rule 15 : “Rule 15. The onset and progress of some diseases are affected by environmental factors related to service conditions, dietary compulsions, exposure to noise, physical and mental stress and strain. Diseases due to infection arising in service will merit entitlement of attributability. Nevertheless, attention must be given to the possibility of pre-service history of such condition which, if proved, could rule out entitlement of attributability but would require consideration regarding aggravation. For clinical discretion of common diseases reference shall be made to the Guide to Medical Officers (Military Pension) 1980, as amended from time to time. The classification of diseases affected by environmental factors in service is given in Annexure III to these rules.” Regulation 423 : “423. Attributability to service.--(a) For the purpose of determining whether the cause of a disability or death is or is not attributable to service, it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a field service/active service area or under normal peace conditions. It is, however, essential to establish whether the disability or death bore a causal connection with the service conditions. All evidence, both direct and circumstantial, will be taken into account and benefit of reasonable doubt, if any, will be given to the individual. The evidence to be accepted as reasonable doubt, for the purpose of these instructions, should be of a degree of cogency, which though not reaching certainty, nevertheless carry the high degree of probability. In this connection, it will be remembered that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. If the evidence is so strong against an individual as to leave only a remote possibility in his favour, which can be dismissed with the sentence ‘of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt. If the evidence is so strong against an individual as to leave only a remote possibility in his favour, which can be dismissed with the sentence ‘of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt. If on the other hand, the evidence be so evenly balanced as to render impracticable a determinate conclusion one way or the other, then the case would be one in which the benefit of doubt could be given more liberally to the individual, in cases occurring in field service/active service areas. (b) The cause of a disability or death resulting from wound or injury, will be regarded as attributable to service if the wound/injury was sustained during the actual performance of ‘duty’ in armed forces. In case of injuries which were selfinflicted or due to an individual’s own serious negligence or misconduct, the Board will also comment how far the disability resulted from selfinfliction, negligence or misconduct. (c) The cause of a disability or death resulting from a disease will be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the armed forces determined and contributed to the onset of the disease. Cases, in which it is established that service conditions did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will be regarded as aggravated by the service. 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 service in the armed forces. 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. (d) The question, whether a disability or death is attributable to or aggravated by service or not, will be decided as regards its medical aspects by a Medical Board or by the medical officer who signs the death certificate. The Medical Board/Medical Officer will specify reasons for their/his opinion. (d) The question, whether a disability or death is attributable to or aggravated by service or not, will be decided as regards its medical aspects by a Medical Board or by the medical officer who signs the death certificate. The Medical Board/Medical Officer will specify reasons for their/his opinion. The opinion of the Medical Board/Medical Officer, insofar as it relates to the actual cause of the disability or death and the circumstances in which it originated will be regarded as final. The question whether the cause and the attendant circumstances can be attributed to service will, however, be decided by the pension sanctioning authority. (e) To assist the medical officer who signs the death certificate or the Medical Board in the case of an invalid, the CO Unit will furnish a report on: (i)AFMSF 81 in all cases other than those due to injuries. (ii)IAFY-2006 in all cases of injuries other than battle injuries. (f) In cases where award of disability pension or reassessment of disabilities is concerned, a Medical Board is always necessary and the certificate of a single medical officer will not be accepted except in case of stations where it is not possible or feasible to assemble a regular Medical Board for such purposes. The certificate of a single medical officer in the latter case will be furnished on a Medical Board form and countersigned by the ADMS (Army)/DMS (Navy)/DMS (Air).” 12. A reading of the provisions contained in Regulation 173 and those contained in the Entitlement Rules, as extracted above, makes it amply clear that though under Rule 14 of the Entitlement Rules a presumption is to be drawn with regard to a disease being attributable to military service, in order to attract the aforesaid deeming provision it has to be established that the conditions of military service had contributed to the onset of the disease and that the same were on account of circumstances of duty in military service. 13. In the present case, it is not known as to whether the disease i.e. Renovascular Hypertension, was carried by the appellant at the time of his entry into military service. Either way i.e. whether the said disease was present or absent at that time, it has to be established that the same got aggravated (if it existed) or had developed due to the exigencies of military service. Either way i.e. whether the said disease was present or absent at that time, it has to be established that the same got aggravated (if it existed) or had developed due to the exigencies of military service. No material is available to enable the Court to come to either of the conclusions in the present case. 14. To resolve the issue, the Court must take note of the report of the medical examination of the appellant, a copy of which has been enclosed as Annexure R-2 to the reply of the respondents. The following extract from the said report will throw sufficient light on the controversy between the parties :- “2. (a) In respect of each disability the Medical Board on the evidence before it will express it views as to whether :- (i)It is attributable to service during peace or under field service conditions, or (ii)It has been aggravated thereby and remains so, or (iii)It is not connected with service. The Board should state fully the reasons in regard to each disability. Disability A B C RENOVASCULAR NO NO YES HYPERTENSION (403) (c) In respect of each disability shown as aggravated under ‘B’ the board should state fully :- NA (i)The specific conditions and period in service which aggravated the disability. ---- NA (ii)Whether the effects of such aggravation still persist. ---- NA (iii)If the answer to (ii) is in the affirmative, whether effect of aggravation will persist for a material period. ---- NA (d) In the case of disability under ‘C’ the board should state what exactly in their opinion is the cause thereof. ---- The disability is one of constitutional in nature and hence related to service.” 15. According to us a proper reading of the aforesaid Clauses of the Medical Report would indicate that the response recorded against column 2(d) of the Report is somewhat inaccurate and the word ‘not’ seems to have been omitted from the words “hence related to service”. In other words, the said sentence should be read as follows:- “The disability is one of constitutional in nature and hence not related to service.” 16. In other words, the said sentence should be read as follows:- “The disability is one of constitutional in nature and hence not related to service.” 16. If the medical opinion which is the expert opinion and, therefore, has to be acknowledged by the Court, is to be understood in the above manner, it is crystal clear that the claim of the appellant that the disease was occasioned by military service would have no legs to stand. According to us, to read and understand the relevant entries in the Medical Report in any other manner will not be correct. Furthermore, as observed by the Apex Court in Om Parkash Singh v. Union of India and others, [2010(4) Law Herald (SC) 2821] : (2010) 12 Supreme Court Cases 667 (dealing with an identical issue of the disability pension), the report of medical examination should be accepted by the Court in the absence of any contrary material. 17. In the present case the report of medical examination clearly indicates that the disease suffered by the appellant is not attributable to military service and there is no other material to enable us to take any other view in the matter. We are, therefore, of the opinion that the rejection of the claim of the appellant to disability pension, as made by the learned Single Judge, is correct and the same would not require our interference. 18. The Letters Patent Appeal is, accordingly, dismissed. However, in the facts and circumstances of the case, we make no order as to costs. ---------0.B.S.0------------