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2013 DIGILAW 270 (JK)

Puran Chand v. Union of India & Ors.

2013-05-02

TASHI RABSTAN

body2013
1. The petitioner was enrolled in the Indian Army on 07.06.1976. At the time of his enrolment the petitioner was subjected to physical test as well as Medical Examination by the Recruitment Medical Board. After the Medical examination of the petitioner, he was placed in Medical Category (AYE) and as such found physically fit for enrolment in the Indian Army. Thereafter, the petitioner came to be enrolled and remained posted in various regiments of the Punjab. In the year 1986, when the petitioner was posted in 3rd Punjab Regiment of Indian Army, he was deputed to Fire Rocket Launcher course. During that course his both ears was defected on account of High Firing Bang of the Rocket Launcher. The petitioner was treated by various Medical authorities of the Army and was diagnosed that he suffering from Sensory Neural Hearing Loss. The petitioner was, accordingly, subject to Medical Board at 170 Military Hospital. After examination of the petitioner by the Medical Board, the Medical Board was of the opinion that disability of the petitioner was attributable on account of service factors and he was downgraded to Medical Category CEE (Temporary) for six months. 2. It is contended that the petitioner was again subjected to Medical Board in the year 1993, as the condition of his ears did not improve. At that point of time, the disability of the petitioner was assessed to be 40% and he was, accordingly, discharged from service on medical ground in the lowest Medical Category i.e. EEE on 31.07.1993. 3. The petitioner served the Indian Army for twenty years. At the time of discharge he was assured by the Commanding Officer of the Unit that he will grant the disability pension in addition to his service pension and the Commanding Officer of the Unit forwarded the documents for granting disability pension to respondent no. 3 through proper channel. The respondent no. 3 vide letters dated 15.03.2004 & 27.05.2004, rejected the petitioner's disability pension case on the ground that the disease attributable to him is neither attributable nor aggravated due to Military service. The letter dated 07.03.2006, whereby claim of the petitioner for disability pension has been rejected was never received by the petitioner. The petitioner being aggrieved of the said order, whereby the claim of the petitioner stands rejected, has filed the present writ petition. 4. The letter dated 07.03.2006, whereby claim of the petitioner for disability pension has been rejected was never received by the petitioner. The petitioner being aggrieved of the said order, whereby the claim of the petitioner stands rejected, has filed the present writ petition. 4. The Union of India has filed the objections to the writ petition and resisted the claim of the petitioner on the ground that the petitioner is not entitled to disability pension because the disease for which the petitioner was suffering is not attributable or aggravated due to the Military Service. 5. With the consent of learned counsel for the parties, the instant petition is admitted to hearing and taken up for final disposal at the admission stage. 6. On the examination of the documents annexed to the writ petition as well as the reply filed by the respondents, it is specifically averred and admitted that the petitioner came to be discharged on Medical grounds. The precise ground for rejecting the claim of the petitioner is that the disease/disability incurred by him was not attributable with the military service and the case of the petitioner for grant of disability pension was rejected. 7. The short question involved in the writ petition is whether the impugned rejection order came to be passed rightly or not and whether the petitioner is entitled to disability pension or not? It is beaten law of land that Army personnel is entitled to disability pension if the disease(s) is/are incurred during active service. The opinion of the Medical Board has great importance in this regard. Thus, I perused Part III, opinion of the Medical Board. At S. no. 1, it is contended that "Did the disability/ies exist before entering service ?.....No. Annexure R-3 of the reply i.e. Medical Board Proceedings AFMSF-15. At Part 1, again stated that "Was the disability contracted in service?........Yes. At part- 2 "was it contracted in circumstances over which he had no control?.... Yes. It is clear evident from the proceedings recorded by the Medical Board it is not the case of the respondent that the petitioner was having such disease before his entering into service. It is also not the case of the respondent that it was not possible for the Medical Board to detect such disease at the time when the petitioner entered into service. 8. It is also not the case of the respondent that it was not possible for the Medical Board to detect such disease at the time when the petitioner entered into service. 8. Another ground for rejection of the case of the petitioner by the respondent 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, 1971, Part I. 9. 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." 10. Plain reading 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. One of the conditions for grant of disability pension as per above mentioned Rule is that if the individual is assessed at 20% or above disability whereas in the instant case the Medical Board has assessed 40% disability. Rule further provides that attributability or aggravation by military service has to be determined under Rule in Appendix II. 11. 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. (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." 12. In terms of Rule 5, refer hereinabove, when the 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 terms of Rule 5, refer hereinabove, when the 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. Thus the instant case of the petitioner 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. 13. While going through the record as made available by learned counsel for the parties, there is no such medical opinion to indicate that the disease could not have been detected on medical examination prior to acceptance of service. This issue has already been settled by Hon'ble the Division Bench of this Court in case titled Union of India v. Rattan Lal, 1992 (2) SCT 39. 14. In the above circumstances, the impugned order is illegal and came to be passed in violation of the Pension Regulations for the Army, 1961. Accordingly, it is quashed and the respondents are directed to consider the case of the petitioner for grant of disability pension within a period of three months from the date a copy of this order is served upon the respondents by the petitioner. 15. The petition is, accordingly, disposed of.