Suraj Mal Sura Ex-Sep. vs Union of India (UOI) and Others

Jawahar Lal Gupta, J.—The petitioner was enrolled in the Indian Army on January 21, 1976. On July 16, 1982, the petitioner was invalided out of service as he was suffering from Grandmal Seizures. His disability was assessed at 20%. The petitioner prays for the issuance of writ in the nature of Mandamus directing the respondents to release the pension with effect from the date of discharge.

The respondents contest the petitioner''s claim on the grounds that the disease was not attributable to or aggravated by military service. As such, the respondents claim that the petitioner is not entitled to the grant of disability pension.

Admittedly the petitioner was physically fit at the time of his enrollment in the India Army. It was later on that he was invalided out of service on account of the disease which was diagnosed as Grandmal Seizures. In view of the provisions contained in Regulation 173 of the Pension Regulation 1961 and Rule 7(b), a disease is deemed to be attributable to army service unless it is found that it could not have been detected on medical examination prior to acceptance for service. It has been so held by different Benches of this Court. Reference to the decision in Union of India v. Sham Lal Malhotra 1995(2) R.S.J. 493 shows that in a somewhat similar situation, the claim for the grant of disability pension was sustained.

However, there is one matter which deserves to be specifically noticed. The pension is admissible only when the disability is found to be 20% or more. Even though the disability in the case of the petitioner was assessed at 20% at the time when he was invalided out of service, there is nothing on record to show that it continues to be so. Mr. Sehgal, however, submits that the petitioner''s condition has infact deteriorated. This is the claim which has to be ascertained.

Accordingly, the writ petition is allowed. It is held that the petitioner having been invalided out of service on account of the disease (Grandmal Seizures) was entitled to the grant of disability pension. This would, however, be subject to the lactum of the disability having continued at 20% or more being established.

Accordingly, the respondents are directed to examine the petitioner medically. If on examination, it is found that he is still suffering from the disease and the extent of disability is 20% or more, necessary relief shall be granted to him in accordance with the Regulations. Needful shall be done within four months from the date of receipt of the copy of this order. In the circumstances of the case, there will be no orders as to costs.