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Judgment
D.K. Seth, J.—The petitioner was enrolled in the Indian Army in the corp of Signal on 25th October, 1986 at Agra. He was discharged by an order dated 351988, on medical ground with effect from 31st May, 1983, which is Annexure1 to the writ petition. After discharge the petitioner claimed for disability pension, which was refused by an order dated 1521989 filed as AnnexureCAl to the counteraffidavit. In the writ petition it was alleged that one Narendra Prasad Yadav, Ex. No. 15357193, ExRecruit, discharged from the service, had been granted disability pension, the order where of is Annexure4 to the writ petition. But the petitioner has been denied the grant of disability pension.
Sri G.D. Mukherji, learned counsel appearing on behalf of the petitioner contends that the petitioner having been discharged on medical ground which is attributable to the Military service, the petitioner is entitled to disability pension under Regulation 173 of the Pension Regulations PartI, 1951. According to him in view of para7 Clause (b) of Appendix11 of the said Regulations unless a note is given at the time of acceptance of an individual in the service, all disability shall be deemed to have accrued during service with an exception that in cases where Medical Board opines with reasons that the disease could not be detected at the time of medical examination when he was accepted in service. In the present case there having been no note and there having been no such formation of opinion in view of the said provision the petitioner is entitled to disability pension. He also relies on some decisions to which I shall refer to at the appropriate stages.
Sri AK. Sinha, learned counsel appearing on behalf of the respondents, on the other hand raises three objections to the grant of disability pension to the petitioner. The first ground raised by him is that the petitioner having been discharged on account of some disease which has been opined to be constitutional, there was no scope for attributing the disease to the Military service inas much as the constitutional disease is a disease which had been present right from birth and, therefore, even if there is no note still then it can not be attributed to the Military service. The second contention raised by him is that the petitioner was recruited on 25101986 but before he could be enrolled after completion of his training he was discharged. Therefore in view of clause (b) of Section 2 of the Army Act the petitioner is not subject to the Army Act and, therefore, he is not eligible for pension. His third contention was that the order refusing pension is appealable. Therefore, in view of existence of alternative remedy this writ petition is not maintainable.
For the sake of convenience the second contention raised by Sri Sinha, learned counsel for the respondent is taken up as first. Section 2 or the Army Act prescribes a person who shall be subject to the Act. Clause (b) there of.f mentions that the person enrolled under the said Act are subject to the said Act. Now the enrolment is provided in ChapterIll of the said Act. The procedure is laid down in Section13. While mode and validity of enrolment is laid down in Sections 14 and 15 respectively. Sections 13, 14 and 15 of the said Act are reproduced below:
"13. Procedure before enrolling officers. Upon the appearance before the prescribed enrolling officer of any person desirous of being enrolled, the enrolling officer shall read and explain to him or cause to be read and explained to him in his presence the conditions of the service for which he is to be enrolled; and shall put to him the questions set for th in the prescribed form of enrolment and shall after having cautioned him that if he makes a false answer to any such question he will be liable to punishment under this Act, record or cause to be recorded his answer to each such question.
Mode of enrolmentIf after complying with the provisions of Section 13, the enrolling officer is satisfied that the person desirous of being enrolled fully understands the questions put to him and consents to the conditions of serviceand if such officer perceives no impediment he shall sign and shall also cause such person to sign the enrolment paperand such person shall thereupon be deemed to be enrolled.
Validity of enrolmentEvery person who has for the space of three months been in receipt of pay as a person enrolled under this Act and been borne on the rolls of any corps or department shall be deemed to have been duly enrolled and shall not be entitled to claim his discharge on the ground of any irregularity or illegality in his enrolment or on any other ground whatsoever; and if any person, in receipt of such pay and borne on the rolls as aforesaid, claims his discharge before the expiry of three months from his enrolment no such irregularity or illegality or other ground shall until he is discharged in pursuance of the claim, affect his position as an enrolled person under this Act or invalidate any proceeding Act or thing taken or done prior to his discharge."
A plain reading of Section 13 indicates that before the enrolment as soon as the person appears before the prescribed enrolling officer, the enrolling officer has certain duties to perform. He is to explain to the person desirous of enrolment, the condition of the service and also asks some question which are set for th in the prescribed form of enrolment with the caution that any misstatement made may entail punishment under the Act. In terms of Section 14 only after the procedure under Section 13 is complied with and the enrolling officer is satisfied that the person desirous of enrolment has fully understood the questions put to him and had consented to the conditions of service and if he perceives no impediment then only he will sign the enrolment paper and shall also called person serious of enrolment to sign the same. Only when the papers are signed such persons shall be deemed to be enrolled. Once such enrolment is made the same becomes valid as provided in Section 15 to the extent that with in the period of three months from the date of such enrolment the persons desirous of enrolment can seek discharge without any restraint for discharge as provided in the Act. After the lapse of this period of three months discharge can be sought only with in the restriction provided in the Act and not otherwise. Even if there is any irregularity or illegality in the enrolment, such irregularity or illegality will not invalidate the enrolment after lapse of the said period of three months though it could be invalidate on account of such irregularity or illegality before expiry of the said period of three months.
The Act does not provide any different or separate provision for the recruitment. Sri Smha, ha not been able to point out any such provision, Act, Rules or Regulations which governs ''recruitment'' though Sri Sinha wanted to make a distinction between the ''recruitment'' and ''enrolment''. According to him the recruitment is different and distinguishable from the ''enrolment''. The contends that only after successful completion of training a person recruited in the Army is enrolled. But he has not been able to show anything either from the Act or from the Rules orRegulation that there are any other provision which governs the procedure for recruitment. Neither he has been able to show anything that the enrolment follows successful training after the recruitment. He has also not been able to specify as to how the condition of service or training and discipline of the recruits are governed. On the other hand Sri Mukherji, learned counsel for the petitioner contends that the ''recruitment'' and ''enrolment'' are synonym. There is no distinction as has been sought to be made out by Sri Sinha. He further contends that the recruitment is described as enrolment in the Act. There is no other provision which governs the recruitment. According to him the moment an individual is enrolled, which is ineffect a recruitment, he becomes subject to the Army Act, since only after enrolment the training follows. The conditions of service, discipline, training etc. of a person so enrolled are governed by the provisions of the Army Act.
Relying on the decision in the case of Jamini Kanta v. Union of India and others, Sri Sinha contends that there is distinction between ''recruitment'' and ''enrolment''. He relies on para 13 of the said judgment which is quoted below:
"13. As regards the question as to on which date the plaintiff was really enrolled we do not think that there can be any serious doubt. At one stage a feeble attempt was made to make the date of recruitment to be the date of enrolment. The argument, however, cannot be sustained, as in various places in the Army Regulations to which reference was made by both the parties before us, A clear distinction is maintained as between recruitment and enrolment. There can be no doubt that in certain cases the date of recruitment is also the date of enrolment, but the enrolment is an act which is well defined under the Indian Army Act of 1911. Reference may be made to Sections 8 and 9 of that Act. The 1911 Act was in force at the time when the plaintiff was taken in military service. It is only after the enrolling officer is satisfied about certain particulars and a form is signed by the person desirous of being enrolled, that the enrolling officer also signs the form and under Section 9 Indian Army Act, "the person shall then be deemed to be enrolled." From the papers placed before us it is manifest that though the plaintiff had appeared before Mr. Uddin who was not the enrolment officer on 1331942. Mr. Pandey, the enrolment officer who was away from the station on that date, signed the paper on 1931942, after his return. The enrolment was, therefore, completed in terms of Section 9, Indian Army Act on 1931942. The learned subordinate Judge also came to the same conclusion though we need not refer to or express our agreement with all the reasons which had been given by him in reaching that conclusion."
In the said case the petitioner had appeared for enrolment on 1331942 before one Mr. Uddin who was not enrolment officer. The enrolment officer Mr. Pandey, who was away from the station on 1331942, signed the papers on 1931942 after his return. Therefore, according to Section9 of the Army Act, 1911 the enrolment was completed only when the form was signed by the enrolment officer. It was also a fact that in the said case. Jamini Kanta was recruited originally on 1921942 and was enrolled on 2021942 with a direction to join at Moghalsarai on 131942. But he was discharged from Military Service at his own request on 1231942 on the ground that he had been irregularly enrolled having been promised civilian fates of pay. On the next date, on 1331942 he appeared at Asansol before Mr. Uddin. The enrolment form was filled in and signed by the enrolling officer Mr. Pandey on 1931942. The fact recorded in the said case thus does not help Mr. Sinha on his contention that the enrolment something different from ''recruitment''. Even if filled up form is made one day or appearance is made on one day and the enrolment officer signed on another day, there might be distinction of enrolment and recruitment prescribed on the different dates and normally recruitment and enrolment are made on the same date or on different date. The enrolment is the initial entry into the service after which training follows. From the facts if does not follow that enrolment would effective only after completion of successful training. Unsuccessful completion of training or other disqualification may disentitled an individual from being retained in service or may be discharged, but it does not enoue that he would be treated to be not enrolled.
Then again as rightly pointed out by Sri Mookherji, learned counsel for the petitioner the very order of discharge itself, which is Annexure1 to the petition, records that the petitioner was invalidated out of service." The use of the expression "Service" in the order of discharge itself postulate that the petitioner was in service. The service means service under the Army Act, 1950 and, as such, the petitioner was subject to the Army Act. The discharge was also effected under the Army Act. The provision for discharge are provided in Section 22 of the said Act. The manner of discharge are prescribed in the Rule. Rule 13 prescribes the authority to discharge different kind of category of officers of the Army. Section 16 of the Army Act provides for attestation of a personand Section 17 provides mode of attestation. As provided in Section 17 that a person is attested only after he completes the prescribed period of probation in the manner provided by administering Oath of affirmation. This presupposes that enrolment is the initial entry in service after which the training follows. At the same time the table provided in Rule 13 shows that a person enrolled under the Act but not attested may be discharged by the Officers prescribed in Column3 of the Table. It further shows that "recruits" who are a considered" unlikely to become efficient soldiers may also be dealt with with in the same category. The relevant portion of the table is quoted below:
Category Grounds of discharge Competent authority to authorise discharge Manner of discharge.
1 2 3 4
Persons en Rolled under Act but not attested IVAllClasses of discharge Office or Officer Com m a n d i n g Recruit reception Camp, or a Recruiting Te c h n i c a l Recruiting ornical Recruiting Officer In the case of persons requesting to be Dis Charged before fulfilling the conditions of Theirenrolment, the commanding officers Will exercise this is satisfied as to the desirability of sanctioning the ap Placation that the will not there by he (sic) reduced. Recruits who are con Come efficient sol diers will be dealt with under this item.
It is also apparent from Annexure4 to the writ petition that one Sri Narendra Prakash, who is also a recruit was granted disability pension. Therefore, the contention of Sri Sinha cannot be sustained. The petitioner is, therefore, subject to the Army Act. The said contention of Sri Mookherji is also for tified by the reasons of expression used in Regulation 173 of the Arm y Pension Regulations, 1961, which reproduced below:
"173. Unless otherwise specially provided, a disability pension may be granted to an individual who is invalided from service on account of disability which is attributable to or aggravated Military Service 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 Appendix11."
The use of the expression ''individual'' who is invalided from service clearly expresses that a person enrolled or even a recruit of invalided from service is an individual eligible to disability pension provided he satisfies the conditions therefor.
The expression used in Annexure1 to the writ petition also records "invalided out of service."
The first contention as raised by Sri Sinha also can not be sustained because of the specific provision as contained in the said Rule. As indicated above, Regulation 173 provides that a person would be entitled to disability pension if discharged on disability attributable to or aggravated by Military service. There are therefore two conditions namely, either the disability is attributable to service or that disability was aggravated Military service and it is 20 percent or above. Even if it is admitted that the disability was constitutional and not attributable to Military service even then such disability may entitle an individual, subject to the Act, to disability pension if such constitutional disease is aggravated by Military service. Admittedly, in the present case, the petitioner was enrolled and there was nothing on record to show that the petitioner was suffering from disease at that point of time or that it was so detected then. Since October 1986 the petitioner remained in service till May 1988, the Medical Board was held on 911988. Therefore, till that time he continued in the service by reason of which it can very well be presumed as to have been aggravated by Military service. The rule prescribed in AppendixII of the said Rules are the mode and manner in which question whether disability is attributable or aggravated by Military service is to be determined. For our present purpose reference to para 7(b) of AppendixII a necessary. The mode of determining a disease are provided in para 7. Clause (b) which provides as under:
"7(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 its was made at the time of the individual''s acceptance for Military service. However, if medical opinion holds, for reason to be stated, that the disease could not have been detected on medical examination prior to acceptance for service the disease can not be deemed to have arisen during service."
Therefore, in case of disease whether it is attributable to or aggravated by Military service is to be determined as provided in clause (b), quoted above. Unless a note is not made at the time of individual''s acceptance for Military service, a disease leading to individuals'' discharge shall be deemed to have arisen in service, meaning there by attributable to service. In the present case nothing has been shown to this court or there is nothing on record that there was any note at the time of acceptance of the petitioner in service. No sucn case has also been made out in the counteraffidavit to the extent that any such note was made at the time of acceptance of the petitioner into service. However, there is one exception even if no such note is given at the time of acceptance into service. The exception as mentioned there inn is that if the medical opinion hold, for the reasons to be stated, that the disease could not be detected on Medical examination before acceptance in service, only in such case the disease shall be deemed not to have arisen during service. No such case has been made out in the counter affidavit that there was any medical opinion that the disease could not be detected before acceptance for service. Nothing has been produced before to the court to show that there was any opinion formed by the Board that the disease could not be detected before acceptance in service and that such opinion was backed by reasons.
Ministry of Defence, Government of India, had also published guide to Military Officers, Military Pension, 1980. In para 9, page 18, Chapter 4, dealing with the entitlement the rule prescribes the following guideline:
"(a) Cases in which it is established that conditions of Military service did not determine or contribute to the on set 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.
(c)..........
(d)..........."
Even according to the said guideline the claim of the petitioner can not be negatived. They again the said fact is supported by the decision in the case of Gurdas Singh v. Union of India and others, 1994 Lab 1C 2170, wherein it was held:
"This court in case of Exsepoy Roshanlal v. Union of India, through Secretary, Ministry of Defence, Govt. of India, New Delhi, 1992(2) RSJ 390 while dealing with the case under similar circumstances held as under:
"that the disability pension is admissible to a person who is invalidated out of service of his having suffered a disability of 20% or more and the disability is found to be attributable to or aggravated by the service conditions. The attributability of the liability to the service has to be determined in accordance with the regulations which inter alia provide that disease which had 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.
In view of the above provisions a disease is normally deemed to be attributable to army service if no note of it was made at the time of enrolment of the individual in the Army apparently none was made in the present case. It is also not shown that the disease was such that could not have been noticed at the time of the petitioner''s enrolment. Accordingly under the rules and regulations the petitioner was entitled to the grant of disability pension. The action of the authority in rejecting his claim cannot be sustained."
Similarly in Gumam Singh v. Union ff India, 1991 (1) RSJ 20: (1992) Lab 1C 1594) this Court has held as under (paras 4 and 5):
"The grant of disability pension is covered by the provisions of Regulation 173 of the pension regulations for the Army 1961. This provide as under:
"173Unless otherwise specifically provided a disability pension may be granted to an individual who is invalidated from service on account of a disability which is attributable to or aggravated by military service and in 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 AppendixIP.
The question as to whether or not the disability is attributable to the military service has to be determined in accordance with the provision of AppendixII. The relevant entry in AppendixII is contained in paragraph 7(b) which reads as under:
"Paragraph 7(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."
A perusal of paragraph 7(b) as reproduced above would show that a disease which leads to an individual''s discharge is deemed to have arisen in service, if "no note of it was made at the time of the individual''s acceptance for military service. "This is precisely the position in the present case. No note was made at the time of the petitioner''s entry into service that he was suffering from any disease like epilepsy. Further more there is nothing before me to indicate that the disease could not have been detected on medical examination prior to acceptance for service. Inevitably it must follow that the disability from which the petitioner is suffering and has led to his discharge is attributable to military service."
A Division Bench of this Court while deciding C.W. P. No. 12162 of 1991 entitled Sardara Singh v. Union of India through Secretary to Govt. of India, Ministry of Defence, New Delhi, held as under:
"Since the petitioner had admittedly suffered disability during the service career, the rejection of his claim on the ground that the disability is not attributable to military service or that it did not fulfil the requisite condition that it had remained aggravated by military service cannot be sustained. The disability being attributable to military service the petitioner was entitled to the grant of disability pension as contemplated under the rules. His claim was, therefore, wrongly rejected by the respondent."
Even though no objection was raised in the written statement yet learned counsel for the respondents submit that the plea of the petitioner cannot be accepted at this belated stage as he has not offered any explanation to the prolonged delay. The submission of the learned counsel can not be accepted at this stage particularly in view of the judgments of this court cited to hereinearlier.
As the respondents have not been in a position to show that the disease alleged to have been acquired by the petitioner was not attributable to the army service and the petitioner has proved that he was hale and healthy at the time he joined army service and remained as such during such service when he was periodically checked up, his prayer in the petition being genuine, legal and valid is required to be accepted. Therefore, in the facts and circumstances of the case it can not be said that this case could be excluded out of clause (b) of Paragraph of AppendixII. On the other hand by reason of the procedure prescribed specifically in para 7(b) the disease in absence of any note and in absence of any opinion as contemplated there inn has to be attributable to military service. Alternatively, even if it is presumed or accepted as has been sought to be made out in the counteraffidavit that the disease was constitutional namely the petitioner had acquired the disease along with his birth in that event the same may not be attributable to military service. But still then the same can be brought with in the purview of other clause namely that it was aggravated by military service even if it was constitutional disease which did not prevent the respondents to accept the petitioner in service despite the constitutional disease. Be that as it may though a case has been sought to be made out that the disease was constitutional, nothing has been produced to this Court to show either by production of any record or otherwise, particularly, the opinion of the Medical Board that the disease was constitutional. The order of discharge refers to the opinion of a Medical Board. Even if it is so recorded there inn the same would have been the best evidence in favour of the respondents. But the respondents had never produced the same and there by have with held the best evidence leading to a presumption adverse to the case of the respondents. Therefore, I am unable to accept the contention of Sri Sinha on this question as well.
The last contention of Mr. Sinha that the appeal is provided is also not disputed by Sri Mooknerji, learned counsel for the petitioner. The existence of alternative remedy by way of appeal is not an absolute bar. In the present case preliminary objection as to the maintainability was not taken in the counteraffidavit also and no such contention has been raised. Admittedly, very long time has lapsed since 1988 and the writ petition also remained pending for a very long time over seven years and in the facts and circumstances of the case, at this stage, it would be doing injustice to the petitioner if the matter is referred to appeal. In the interest of justice and particularly in view of the fact and circumstances of the case, in my opinion it is a fit case since fundamental principles of law has been violated where discretion to intervene should be exercised under Article 226 of the Constitution. Therefore, the contention of Mr. Sinha stands overrule in view of the particular facts and circumstances of the present case.
In the result the writ petition succeeds and is allowed. Accordingly a writ of mandamus do issue commanding the respondents to consider and decide and grant disability pension to the petitioner, as is admissible to him, in accordance with law with in a period of six months from the date a certified copy of this order is produced before the concerned respondents.
There will, however, be no order as to costs.
Let a copy of this order be given to the learned counsel for the petitioner on payment of usual charges with in a week.