Jammu & Kashmir High Court
Union Of India (Uoi) And Ors. vs Surjeet Kumar on 7 February, 2007
Equivalent citations: 2007(2)JKJ388
Author: J.P. Singh
Bench: J.P. Singh
JUDGMENT J.P. Singh, J.
1. Union of India and its functionaries have preferred this Original Side Appeal under Clause 12 of Letters Patent against the judgment of a Learned Single Judge of this Court in SWP No. 2022/2000 allowing respondent-Surjeet Kumar's writ petition No. 2022/2000, And while quashing Ministry of Defence's Communication No. 7 (1723)97/D/Pen A & AC dated 17-05-2000, directing the appellants to assess and pay disability pension to the respondent along with its arrears from the date he was invalided back home from Army service, as admissible under rules.
2. Facts leading to the filing of this appeal may be stated thus:
Respondent-Surjeet Kumar filed SWP No. 2022/2000 saying that appointed as a Rifleman in the Indian Army on 4th of October, 1993, he performed his duties satisfactorily and was awarded a Sainya Seva Medal too. Though found fit by the Board of Doctors at the time to his enrolment, he was boarded out on medical category on 8th of November, 1992. The Chief Controller of Defence Accounts, rejected his case for disability pension, aggrieved whereby, he preferred an appeal which was rejected vide Ministry of Defence's communication No. 7 (1723)97/D/Pen A & AC dated 17-05-2000. He was medically fit at the time of entry into Army service and the disability which he suffered during the course of his Army service because of the stress and strain while in service, was attributable wholly to the Army service.
Appellants contested respondent's claim saying that he was examined by a Medical Officer at the time of his entry into Army service and not by the Medical Board, who had found him fit for his enrolment in the Army. The respondent had concealed real facts at the time of his entry into service which came to light subsequently when on his admission at 92 Base Hospital, he was found to be a case of Impotency (Psychosexual dysfunction). He was discharged from Hospital in medical category CEE (temporary) with effect from 6th of October 1986. His medical category was later upgraded to BEE and on revision at Army Hospital Delhi Cantt, his diagnosis was changed to Neurosis resulting in change in his medical category AYE with effect from 31st of January, 1990.
3. A Learned Single Judge of this Court, rejected appellants contention and allowed respondent's writ petition relying on Army Regulations and a Single Bench judgment of this Court reported as Manjeet Singh v. Union of India 1977 KLJ 179, on the following finding:
In the circumstances it is not difficult to gather that petitioner's disease, whatever name was given to it, was not noticed at the time of his enrolment in the service nor was the disease such as was incapable of being noticed by the medical experts. On the contrary his ailment was not noticed till 1990 for 5 years for which period he was continued in service and admittedly discharged the duties. Therefore, considering that his disorder or disease was noticed 5 years after his enrolment and that his medical category underwent a change during various medical examinations, only shows that his ailment was attributable to the military service after it had gone unnoticed at the time of his enrolment. In any case it is the admitted position that the petitioner was boarded out of service on account of his permanent disability bringing his case within the amended Army Regulation 173. As such his case is covered on both counts.
4. Mr. Manik Gupta, learned Counsel appearing for Union of India urged that Neurosis ICD-300 from which the respondent had been suffering since his entry into service is a Constitutional disorder which disentitled the respondent to disability pension. Reliance is placed by the counsel on Controller of Defence Accounts pension v. S. Balachanderan Nair reported as .
5. Mr. Rajiv Gorka, learned Counsel appearing for the respondent, relying upon the Entitlement Rules and Pension Regulations for the Army, justified the directions issued by the writ court relying additionally on a Division Bench judgment of this Court delivered in LPASW No. 168/2005, Ex-Sepoy No. 3385756 Devinder Singh v. Union of India and Ors.
6. We have considered the submissions and perused the judgments, Regulations and Entitlement Rules relied upon by the learned Counsel for the parties.
7. In view of the admission of the appellants that the respondent, at the time of entry into Army service, had been found to be medically fit, by their Medical Officer, who had examined him, the only question which needs to be resolved in this appeal is whether the subsequent opinion of the Board of Doctors of the appellants holding the respondent suffering from a Constitutional disorder, but without recording any reasons in support thereof, would disentitle the respondent from disability pension under the pension Regulations for the Army.
8. Before concluding the issue which arises for resolution in this appeal, regard needs to be had to the provisions of Regulation 48 of the pension Regulations for the Army-1961 which for facility of reference reads thus:
48. (a) Unless otherwise specifically provided a disability pension constituting of service elements and disability elements may be granted to an officer who is invalidated out of service on account of a disability which is attributable to or aggravated by military service in non battle casualty cases and is assessed at 20% or more.
(b) The question whether a disability is attributable to or aggravated by military service shall be determined under the Rules in Appendix-II.
Appendix-II referred to in Regulation 48 too needs to be noticed. This reads thus:
Entitlement Rules for Casualty pensionery Awards, 1982.
1...
2. _________ 3______
4. Invalidating from service is a necessary condition for grant of disability pension. An individual who, at the time of his release under the Release Regulations, is in a lower medical category than that in which he was recruited will be treated as invalidated from service. JCO/OR and equivalents in other service who are placed permanently in a medical category other than 'A" and are discharged because no alternative employment suitable to their low medical category can be provided, as well as those who having been retained in alternative employment but are discharged before the completion of their engagement will be deemed to have been invalidated out of service.
5. The approach to the question of entitlement to casualty pensionery awards and evaluation of disabilities shall be based on the following presumptions:
(a) A member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance.
(b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due to service.
6...
7...
8...
9. The claimant shall not be called upon to prove the conditions of entitlement. He/she will receive the benefit of any reasonable doubt. This benefit will be given more liberally to the claimants in field/afloat service cases.
10...
11...
12...
13...
14. (a)...
(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.
9. Perusal of various rules of the Entitlement Rules demonstrates that an Army personnel invalided out from service enjoys a presumption in his favour of his entitlement to disability pension because the disease or disability, suffered by him, is presumed to be attributable to, or aggravated by military service, and such claimant is not required to be called upon to prove the conditions of his entitlement. Rule 9 of the Army Regulations, supports this presumption. Rule 14 (b) of the Entitlement Rules further demonstrates that in case no note of the disease from which the respondent had been suffering, was made at the time of his acceptance for military service, the disease would be deemed to have arisen in service unless however, the medical opinion, for reasons to be stated, notices that the disease was such which could not have been detected on medical examination prior to individual's acceptance for service.
10. In view of the position demonstrated by the above quoted two rules of the Entitlement Rules, the position becomes quite clear that in case the subsequent medical opinion of the Board of Doctors, holds the disease to be a Constitutional disease, the individual would be disentitled to claim disability pension. The medical opinion of the Board of Doctors would, however, prevail only if the Board had recorded that the disease was such which could not have been detected on individual's medical examination at the time of his acceptance in the Army service.
11. The appellants have not placed any thing on records nor is it their case that the medical opinion had given reasons in its opinion report that the disease suffered by the respondent was such which could not have been detected on respondent's medical examination at the time of his acceptance in Army service.
12. Such being the case, the presumption available to the respondent to seek disability pension because of his having been accepted in Army service as a person medically fit to be enrolled in service, and subsequently been invalided out from service, could not be ignored by the Ministry of Defence in rejecting his appeal, because the presumption continued to hold good, as nothing, in terms of the rules, had been brought on records suggesting that the disease from which the respondent had been found to be suffering was such which could not have been detected at the time of his acceptance into Army service and was a Constitutional disease. Appendix-II to Annexure-III gives classification of various diseases. Diseases which are not normally affected by service have been mentioned under Letter ']'. Neurosis ICD-300 is not shown to be one of those diseases which fall under this heading. Diseases which are affected by stress and strain are mentioned under Letter 'B'. Psychosis and Psychoneurosis are mentioned under this Heading as diseases affected by stress and strain.
13. What we find from the service record of the respondent, as reflected in the objections of the appellants, is that the respondent had served the appellants from October 1983 to 1986 as a good soldier and no disease of any kind whatsoever had been detected by the appellants in respect of the respondent. It was only in the year 1986 that he was for the first time, detected to be a case of Impotency (Psychosexual dysfunction) at 92 Base Hospital where he was treated with drugs and psychotherapy and ultimately boarded out on being diagnosed as a case of Neurosis ICD-300.
14. We, therefore, find that the respondent's case for disability pension had been erroneously rejected by the Chief Controller of Defence Accounts (Pension) and the Ministry of Defence ignoring the provisions of the Entitlement Rules and the presumption which was available to the respondent under the rules to justify his claim to the Disability Pension.
15. We had examined the judgment delivered by the Hon'ble Supreme Court of India in S. Balachanderan Nair's case in yet another case, in LPASW No. 168/2005, Ex-Sepoy Devinder Singh v. Union of India and Ors. and found that Hon'ble Supreme Court of India, in the case (supra) had referred only to Rules 2, 3 and 4 of the Entitlement Rules besides Regulations for the medical service of Armed Forces (1983). Rules relied upon by us dealing with recording of reasons that the disease was such which could not have been detected at the time of individual's acceptance into Army service, had not fallen for consideration before the Hon'ble Supreme Court of India and in that view of the matter, S. Balachanderan Nair's case would not apply to a case where the medical opinion had not given any reasons that the disease was such which could not have been detected at the time of one's entry into Army service.
Yet another reason, which makes S. Balachanderan Nair's case inapplicable to the present case, is the presumption which is available to a claimant to disability pension which unless rebutted, would continue to operate entitling the claimant to disability pension under the Entitlement Rules.
16. We, therefore, conclude to resolve the issue raised in this appeal by holding that in the absence of a reasoned finding by the subsequent Medical Board that the disease suffered by an army personnel on the basis whereof he was invalided back home was such which could not have been detected at the time of his entry into army service, the person invalided out from service shall be presumed to have suffered the disease or got it aggravated while in army service, And would accordingly be entitled to the Disability Pension.
17. There being no such subsequent finding in case of respondent, he was entitled to the grant of disability pension and its arrears as held by the Learned Single Judge. We, accordingly, do not find any merit in this appeal which is covered by the view which we had earlier taken in Devinder Singh's case.
18. This appeal, is accordingly, found to be without merit. It is, accordingly, dismissed but without any order as to costs.