Devender Kumar Anand vs Union Of India And Others

Having been found medically and physically fit, the applicant was commissioned in the Indian Army on 25.12.1965 and was discharged from service

on 30.04.1998. Before proceeding on discharge, the applicant was subjected to Release Medical Board (RMB). The Release Medical Board found

that the applicant was suffering from two disabilities namely. ID (i) ""Thrombotic Stroke (Rt) Internal Carotid Artery and (ii) Hypertension with LVF ,

and opined disability (i) as neither attributable to nor aggravated by military service but disability (ii ) was aggravated by military service. Assessment

of both the disabilities was 20% each and composite assessment was computed as 40% for two years. However, the applicant was not granted

disability pension. hence present OA was filed by the applicant.

Factual matrix of the case have not been disputed by the respondents in the counter affidavit.

Learned counsel for the applicant contended that the instant matter is squarely covered by a catena of decisions of the Hon'ble Supreme Court

including Dharamvir Singh Vs Union of India and Ors. (2013) 7 SCC 31.6 Union of India and Ors. Vs. Rajvir Singh (2015) 12 SCC 26 4and Union of

India and Ors Vs. Angad Singh Titaria, (2015) 12 SCC 257. Further. the claim of the applicant is also supported by relevant rules. It is further

submitted that although assessment of disability was for two years but since the disability was of permanent nature, hence in view of the Government

of India letter dated 07.02.2001 and latest pronouncement of Hon'ble Supreme Court in Civil Appeal No. 5970 of 2019-Commander Rakesh Pande

versus Union of India and others. decided on 28th November, 2019, applicant is entitled to disability pension for life.

4 Per contra, learned counsel for the respondents contended that the applicant is not entitled to the relief claimed since the Release Medical Board.

being an Expert Body. found the disabilities ""Neither Attributable to Nor Aggravated by Service-. It is further submitted that Govt. of India letter dated

07.02.2001 does not help the applicant and reference is made to para 10 of this letter for submitting that applicant is not entitled to the relief claimed.

We have heard learned counsel for both sides and perused the records.

As per regulation 173 of the Pension Regulation Rules, the primary condition for grant of disability pension is twofold-

(i) The disability should be attributable to or aggravated by military service:

(ii) Assessment of disability should be 20% or more.

As regards disability hypertension with LVF is concerned, perusal of Release Medical Board proceedings goes to show that it was opined to be

aggravated by military service and assessment of disability was 20%. It is not understandable as to why the applicant was not granted disability

element of pension so far as this disability is concerned as both the requisite conditions for grant of disability element were fulfilled.

As regards disability Thrombotic Stroke (Rt) Internal Carotid Artery. the assessment of disability was 20%. However, it was opined to be neither

attributable to nor aggravated by service. In this regard, we are of the view that the case in hand is squarely covered by the decisions referred to

herein above. In Dharamvir Singh's case (supra) the Hontle Supreme Court held that any disability sustained during the course of military service will

be attributed to service conditions unless the disability was such that the disease could not have been detected on medical examination before a person

is selected for Defence Service and furthermore, before arriving at a conclusion, the Release Medical Board should have assigned reasons in writing

that the disability was not due to Military Service. There is no dispute with regard to the fact that when the applicant entered into service, he was not

suffering from any disease and that the disability in question was detected/sustained only during the course of his military service.

In the light of the preceding paragraph and essential parameters aforesaid, we are of the view that even for this disability, the applicant is entitled

for disability element of pension @ 20%. composite assessment of both the disabilities was 40%, as such, the applicant is entitled for the same.

Duration of both the disabilities was opined to be two years. As stated above, counsel for the applicant had placed reliance upon Govt. of India

letter dated 7.2.2001 and the latest pronouncement of Hon'ble Supreme Court in Rakesh Pande's case (supra), counsel for the respondents has

submitted that as per para 10 of the Govt. of India letter dated 7.2.2001. following conditions are pre-requisite:-

(i) The provision of this letter will be applicable to service personnel who were in service on or after 01.01.1996.

(ii) The cases which have been finalised prior to issue of this letter will not be reopened.

(iii) As regards pre 01.01.1996. disability pensioners, the assessment made by the Reassessment Medical Board will be considered as final and for

life.

It was submitted that it is only if the assessment is made by Reassessment Medical Board that the disability, if found to be permanent, will be

treated as final for life. This submission however, is devoid of merit as in Rakesh Pande's case also, the disability was assessed for five years by the

Release Medical Board and since the same was permanent, therefore, it was considered for life.

In the instant case also, the perusal of the Release Medical Board, wherein it is mentioned 'Fit to be released out of service in med. Cat. P2

permanent goes to show that disability has been opined to be permanent, therefore, the applicant is entitled to the benefit of disability element of

pension for life.

In view of the discussion made above, OA is allowed. Applicant is granted disability element of pension @ 40% which be rounded upto 50% for

life.

In view of the fact that there is delay on the part of the applicant in approaching the Tribunal, arrears are restricted to three years prior to the filing

of the OA which was filed on 03 10.2017.

The respondents are directed to release the arrears within a period of four months from the date of receipt of a copy of this order. failing which

the arrears shall carry interest at the rate of six per cent per annum.

The 0.A. stands disposed of in the above terms with no order as to costs

Pronounced in open Court on 29th January, 2020.