Roopesh Neramballi vs Union Of India And Others

Order. disposing off the OA pronounced signed and dated

OA 491/2017

Having been found medically and physically fit, the applicant, who joined the Flying Branch of the Indian Air Force on 18.12.1993 was released pre-

maturely from service on 14.12.2007 on his own request in low medical category ""Spondylolisthesis L5 over S1 and Spondylolysis LV 5"" a disability

which was assessed composite © 30% for life with NIL disability but treating it neither attributable to nor aggravated by military service, by Release

Medical Board. now seeks disability pension.

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 6Union 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.

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 disability Neither Attributable to Nor Aggravated (NANA) by Military Service-.

Having heard learned counsel on both sides. we are of the view that the case on hand is squarely covered by the decisions referred to herein

above. In Dharamvir Singh (supra) the Hontble 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 during 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.

The applicant's disease has to be held as aggravated/attributable to military service in accordance with Para 51 of Amendment to Chapter VI &

VII of Guide to Medical Officers issued by Ministry of Defence.

The issue of implementation of orders of the Hon'ble Supreme Court in the matter of Dharamvir Singh (supra) in respect of Armed Forces

Personnel in NANA cases was taken up with the Department of Expenditure, Ministry of Finance for consideration. Accordingly, Ministry of

Defence vide their letter dated 29' June, 2017 sent to the Chief of Staff of Army, Navy and Air Force for implementation of the orders of Honlble

Supreme Court, has laid down the following essential parameters for allowing disability pension:

I. The question whether a disability is attributable or aggravated by military service is to be determined under ""Entitlement Rules for Casualty

Pensionary Awards 1982.

II. A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In

the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be presumed due to service.

III. If no note of any disability or disease was made at the time of individual's acceptance for military service, a disease which has laid to an

individual's discharge or death will be deemed to have arisen in the service.

IV. If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and that disease

will not be deemed to have arisen during service, the medical board is required to state the reasons.

In the light of the preceding paragraphs and essential parameters given aforesaid, we hereby set aside the impugned order rejecting the claim of the

applicant for disability element of disability pension and hold that he is entitled to the same from the date of his pre-mature release at the rate of 30%

for life, which is to be broad banded to 50% for life in the light of the judgment of the Hon'ble Supreme Court in Union of India and Ors. Vs. Ram

Avtar decided on 10' December, 2014.

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

arrears shall carry interest at the rate of eight per cent per annum till the actual date of payment.

9 Since the applicant has come to this Tribunal after considerable delay, hence the arrears are restricted to three years prior to the date of filing of the

application.

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

Pronounced in open court on 1st August, 2019