Kanwar Singh, (Ex. Hav. No. 14550669) of EME vs Union of India (UOI) and Others

Amar Dutt, J.—Kanwar Singh petitioner was enrolled in the Indian Army on 4th of January, 1983, he reported sick and had to be admitted in the military hospital where the malady was diagnosed as Diabetes Mellitus (DHA Failure)-25. Thereupon, an enquiry was conducted and the petitioner was recommended for being placed in medical category EEE for being invalided out of service. At the time of his discharge on 28th of July, 1998, the disability of the petitioner was assessed at 20 per cent and consequently after discharge the petitioner required the respondents for grant of disability pension. This request was turned down on the ground that, according to respondent No. 3, the Diabetes Melltus (DHA Failure) 250 was constitutional disorder totally unrelated to the service.Against this order, copy whereof is Annexure P-2, the petitioner filed an appeal, which too had been turned down vide order dated 7.11.2000 (Annexure P-4) which order has necessitated the filing of the present petition.

According to the petitioner, at the time of enrolment, he had been found to be medically fit and, therefore, in view of the Pension Regulations, for the Army 1961, Part-1, (hereinafter referred to as "the 1961 Regulations") governing the pension, the disease, which was detected for the first time in November, 1996 was clearly attributable to military service and, therefore, the orders Annexures P-2 and P-4 are liable to be set aside and the petitioner is entitled for issuance of a direction that he be grated disability pension, according to the rules.

The stand of the respondents as incorporated in a joint written statement filed on their behalf by the Staff Office, Station Headquarter, Chandi Mandir, is that the primary condition for grant of disability pension is that the individual should be invalided out of service on account of disability, which is attributable to or aggravated by military service and that disability should be assessed at 20% or above. It is admitted that the Board has assessed the disability of the petitioner at 20% and that the Medical Adviser (P) attached to the Chief Controller of Defence Accounts (Pensions) Allahabad, had rejected the claim on the ground that the Diabetes Mellitus (DHA Failure) -250 is not attributable to military service. In view of this, it was submitted that there was no occasion for interferable by this Court with the view taken by respondent No. 4 and the appellate authority.

I have heard Shri Sudhir Aggarwal, on behalf of the petitioner and Shri S.K. Sharma, Additional Central Government Standing Counsel, on behalf of the respondents and with their assistance have carefully gone through the record of the case.

For determining whether an individual is entitled to disability pension, it would be necessary to advert to Regulation 173 of 1961 Regulations and Rule 14 of Entitlement Rules 1982. While the former states that;-

"Pension Regulation 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% or over."

the latter clarifies that:-

"(a) For acceptance of a disease as attributable to military service, the following two conditions must be satisfied simultaneously;-

(i) That the disease has arisen during by the period of Military service, and

(ii) That the disease has been caused by the conditions of employment in Military service.

(b) If medical authority holds, for reasons to be stated that the disease although present at the time of enrollment could not have been detected on medical examination prior to acceptance for service, the disease, will not be deemed to have arisen during service. The case where it is established that the conditions of military service did not contribute to the onset or adversely affect the courses of disease entitlement for casualty pensionary award will not be conceded, even if the disease has arisen during service.

(c) Cases 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.

(d) In case of congenital, hereditary, degenerative and constitutional disease which are detected after the individual has joined service, entitlement to disability pension shall not be conceded unless it is clearly established that the course of such disease was adversely affected due to factors related to conditions of military service."

From a combined reading of both these provisions it becomes clear that disability pension can be granted to an individual invalided out of service on account of a disability attributable to or aggravated by military service and Rule 14 of the Entitlement Rules, 1982 clarifies that a disease has to be treated as attributable to military service if the same has arisen during the period of military service and has been caused by the conditions of employment in military service. Sub-clause (b) of Rule 14 ibid enables the Medical Authority to hold, for reasons to be stated, that although the disease was present at the time of enrollment, the same could not have been detected on medical examination and thereupon the diseases would not be deemed to have arisen in military service. It is also open to the authorities to opine that the conditions of military service did not contribute to the onset or adversely affect the course of disease and upon these two opinions being expressed the claim for grant of pension would not be considered.

In the present case, the averment made by the petitioner that at the time of his enrollment, he was not found suffering from Diabetees Mellitus (DHA Failure) -250, has not been controverted. Since the Medical Board does not indicate in the report that the disease could not have been detected at the time of enrollment or that military service had not contributed to its onset nor had at this stage affected the course of the disease, the only inference which can be drawn in the case of the petitioner is that Diabetees Mellitus (DHA Failure)-250 was attributable to military service and, therefore, the petitioner would be entitled to disability pension claimed for by him, it will also have to be held thai the opinion of the Medical Adviser (Pension) declining disability pension to the petitioner cannot, in law, be sustained. 8. In Jai Bhagwan Rahilla v. Chief of the Air Staff 1999(6) S.L.R. 442 and Deepak Kumar Singh Vs. Union of India, a similar view was taken by this Court and the Delhi High Court.

For the reasons recorded above, this petition has to be accepted. The impugned or ders Annexures P-2 and P-4 are set aside and a direction is given to the respondents to release disability pension to the petitioner with effect from the date he was invalided out of service within four months from the date of receipt of a copy of this order failing which he petitioner be entitled to interest at the rate of 12 per cent per annum. It is also made clear that the petitioner shall be obliged to appear before a re-survey Medical Board as and when the respondents decide to convene such a Board for re-assessment of the disability found by the Board at the time when he was invalided out of service.