Sanjaya Kumar vs Union Of India And Others

Arguments heard.

Vide separate order, OA is dismissed.

Having been found medically and physically fit, the applicant joined the Army service as a permanent Commissioned Officer in the Bombay Engineers

Group of Army after successful completion of training and in Medical Category SHAPE-1 on 13 Jun 1987. In August 2006. he was downgraded to

Medical Category P2 temporarily and subsequently in May 2013 he was downgraded to P2 Medical Category (Permanent).

The applicant took remature retirement after 22 years of service on 02 May 2012. Prior to his retirement, his Release Medical Board was

conducted which found him to be suffering from Obesity and Dislipidemia both of which were opined to be neither attributable to nor aggravated by

military service and assessment of both the disabilities was 1-5%.

An appeal was preferred on 24.08_2015 However, the same was not responded to by the respondents. As such. present OA has been filed.

The factual matrix of the case has not been disputed by the respondents. However, it is submitted that vide Regulation 53 of the Pension

Regulations 1961 Part I. since the applicant does not satisfy the twin conditions contemplated therein therefore. he is not entitled to disability element

of pension. It is further submitted that Medical Board is a body of Experts and the opinion of the Board is sacro scent and cannot be changed, the

same can be over ruled only by a higher competent/admn. approving authority. Therefore. the applicant is not entitled to the relief claimed.

We have heard counsel for the parties and have perused the record_

6 As per Regulation 53 of Pension Regulations 1961 Part in order to get benefit of disability element of pension. it is incumbent upon the applicant to

satisfy the twin conditions :

(i) Disability is either attributable to or aggravated by military service

(ii) The assessment of disability is 20% or more.

The question for consideration is whether the case of the applicant falls within the four corners of this Regulation. As stated above, the Release

Medical Board found the applicant to be suffering from two disabilities le Obesity and Dislipidemia. While opining that the disabilities are neither

attributable to nor aggravated by military service as regards obesity it was opined that the same is due to individuals own dietary indiscretion.

Dislipidemia is a metabolic disorder which has an inherent genetic basis and therefore, is neither attributable to nor aggravated by military service

Counsel for the applicant submits that when the applicant was enrolled in service he was subjected to medical examination and was not found to be

suffering from any disability and therefore, since the disability has been incurred by the applicant during the service tenure. therefore. it has to be

presumed that the same is attributable to military service However, this submission is devoid of merit. In Civil Appeal 7672 of 2019-Ex. Cfn Narsingh

Yadav versus Union of India and others decided on 03,102019. Hont Supreme Court observed that it is not mechanical application of the principle that

any disorder not mentioned at the time of enrolment is presumed to be attributable to or aggravated by military service. Each case has to be examined

on its own facts. It was further observed that though the opinion of the Medical Board is subject to judicial review but the courts are not possessed of

the expertise to dispute such report unless there is strong medical evidence on record to dispute the opinion of the Medical Board which may warrant

constitution of Review Medical Board

It is common knowledge that Obesity is due to individuals own dietary indiscretion and habits. Dislipidemia is a metabolic disorder and has an

inherent genetic basis, that being so, there is no warrant for interference with the findings of the Medical Board that the disabilities were neither

attributable to nor aggravated by military service.

Furthermore, the assessment of both the disabilities is only 1-5 % whereas as per the regulation. the disability should be at least 20% or more, In

CA 10870 of 2018- Union of India and others versus Wg Cdr S.P.Rathore decided on 11 12 2019 while dealing with the issue, whether the applicant

who is having disability less than 20% is entitled to benefit of disability pension, after referring to para 7.2 and 8.2 of circular dated 31.01.2001 issued

by the Ministry of Defence, Hon ble Supreme Court observed that no disability element shall be payable for disabilities less than 20%. Since the case

of the applicant does not fall in either of the two categories of the Pension Regulations referred above, as such. he is not entitled to the relief as

claimed. That being so, OA lacks merit and is accordingly dismissed.

Pending application, if any, also stand dispose of.