Union Of India vs Col Nc Isaac (Retd) No Ic-45788P on 27 June, 2024

[Cites 13, Cited by 0]

Kerala High Court

Union Of India vs Col Nc Isaac (Retd) No Ic-45788P on 27 June, 2024

1. This order shall dispose of six writ petitions ie., WP(C) No.818 of 2024, WP(C) No.16857 of 2024, WP(C) No.16862 of 2024, WP(C) No.23112 of 2024, WP(C) No.2458 of 2024 filed by the Union of India and WP(C) No.43207 of 2023 filed by Havildar Anil Kumar NS against the order of the Armed Forces Tribunal.

2. The question involved in all the cases is whether the ex-service men who have been discharged or superannuated from service for having disability more than 20% would be entitled for disability pension or not.

3. Government of India initially came out with a regulation called 'Pension Regulations for the Army 1961'. The Primary conditions for the grant of disability pension is enumerated in regulation 173 which provides that unless otherwise specifically provided, a disability pension consisting of service element and disability can be granted to an individual invalidated out of service on account of a disability attributable to or aggravated by military service in non-battle casualty and assessed as 20%, what is deduced from regulation 173 is, for entitlement of disability pension, an individual/armed force personal must have 20% disability. Whereas WP(C) NO. 43207 OF 2023 and conctd. Case 9 Regulation 179 envisages the situation with regard to entitlement or otherwise disability at the time of retirement or discharge. It is pertinent to mention here retirement would be on the date of superannuation/discharge before attaining the age of superannuation. Regulation 173 and 179 reads as under:

'173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military service in_non-battle casualty and is assessed 20 percent or over The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II' '179. An individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or attaining the age of 50 years irrespective of their period of engagement), if found suffering from a disability attributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalided out of service and shall be granted disability pension from the date of retirement. if the accepted degree of disability is less than 20 per cent or more and service element if the degree of disability is less than 20 per cent. The service pension/service gratuity. if already sanctioned and paid, shall be adjusted against the disability pension/service element. as the case may be.

(2) The disability element referred to in clause (1) above shall be assessed on the accepted degree of disablement at the time of retirement/ discharge on the basis of the rank held on the date on which the wound/injury was sustained or in the case of disease on the date of first removal from duty on account of that disease, Note: In the case of an individual discharged on fulfilling the terms of his retirement, his unwillingness to continue in service beyond the period of his engagement should not effect his title to the disability element under the provision of the above regulation.'

4. On co-joint reading of the aforementioned WP(C) NO. 43207 OF 2023 and conctd. Case 10 regulations, it is evident that an individual is entitled to disability pension, if have suffered 20% of disability before attaining the age of 50 years and subsequent thereto.

5. Hon'ble President of India vide notification dated 22.11.1983 in supersession of all previous orders on the subject, came out with rules named as 'Entitlement Rules for Casualty Pensionary Awards, 1982' to be effective from 1.1.1982. Clause 4, 5, 6, 7, 8, 9, 10 are relevant for adjudication of the lis, the same reads thus:

4. Invaliding from service is a necessary condition for grant of a 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 services 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 pensionary awards and evaluation of disabilities shall be based on the following presumptions:-

Prior to and during service

(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. Disablement or death shall be accepted as due to military WP(C) NO. 43207 OF 2023 and conctd. Case 11 service provided it is certified by appropriate medical authority that:-

(a) the disablement is due to a wound, injury or disease which:

(i)is attributable to military service, or

(ii) existed before or arose during military service and has been and remains aggravated thereby. This will also include the precipitating/ hastening of the onset of a disability.

(b) The death was due to or hastened by -

(1) a wound, injury or disease which was attributable to military service;or

(ii) the aggravation by military service of a wound injury or disease which existed before or arose during military service.

7. Where there is no note in contemporary official records of a material fact on which the claim is based, other reliable corroborative evidence of that fact may be accepted.

8. Attributability/aggravation shall be conceded if causal connection between death/disablement and military service is certified by appropriate medical authority. Onus of proof

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.

Post Discharge Claims

10. Gases in which a disease did not actually lead to the member's discharge from service but arose within 10 years thereafter, may be recognized as attributable to service if it can be established medically that the disability is a delayed manifestation of a pathological process set in motion by service conditions obtaining prior to discharge and that if the disability had been manifest at the time of discharge the individual would have been invalided out of service on this account.

6. The genesis of the aforementioned clauses in brief is that an individual at the time of the release under the Release WP(C) NO. 43207 OF 2023 and conctd. Case 12 Regulations, in a lower medical category than that in which he was recruited would be treated as invalidated from service. 'A member is presumed to have been in sound physical and mental condition upon entering the service except as to physical disabilities noted or recorded at the time of entrance'. In the event of having been subsequently discharged from service on medical grounds owing to deterioration of his health, has to take place is due to service.

7. The aforementioned clauses would be applicable if the individual is certified by forming opinion by the appropriate medical authority whether the disability is/was on account of wound, injury or disease attributable to military service, existed before or have arisen during the military service or aggravated.

8. In case when there is no note in contemporary official records of a material facts on the basis of which the claim is based, other reliable corroborative evidence of that fact, i.e of the medical board and record is required to be taken in to consideration/ to be accepted. The onus of proof will not lie upon a claimant for the purpose of entitlement but on the basis of a reasonable doubt and of the report of the medical board, the benefit has to be liberally construed in the field/active service cases.

9. Rule 14 also envisages certain situations like the cases in WP(C) NO. 43207 OF 2023 and conctd. Case 13 which it had been established that the conditions of Military Service did not determine or contribute to the onset of the disease but influenced on account of subsequent courses of the disease would fall for acceptance on the basis of aggravation. A disease which has led to an individual's discharge would ordinarily be deemed to have arisen in service, in case in the absence of any note made at the time of the individual's acceptance for military service but if the medical opinion holds, for the reasons to be stated, the disease could not have been detected on medical examination prior to acceptance for service, the disease would not be deemed to have arisen during the service. If the disease is accepted to have arisen in service, also requires to be established that the conditions of military service determined or contributed to the onset of the disease. In order to prevent improper application of the aforementioned Rules, Regulations governing the Medical Board also have been published as 'Guide To Medical Officers (Military Pension) Rules-2002' which was revised as 'Regulations for the Medical Services of The Armed Forces - 2010'.

10. Paragraph 1, 6, 7, 8 and 9 of the aforementioned Rules (Chapter 1) are relevant for adjudication. The same reads thus:

1. The Medical Services of the Armed Forces consist of the Medical Services of the Army, Navy and Air Force and a Director General Armed Forces Medical Services.

Each Medical Service is under a Director General Medical WP(C) NO. 43207 OF 2023 and conctd. Case 14 Services (DGMS), who is the Medical Advisor to the Chief of Staff of their respective Service and are responsible to them for the day to day administration and proper functioning of the Service under them. The Director General, Armed Forces Medical Services is the medical adviser to the Ministry of Defence and is also the Chairman of the Medical Services Advisory Committee, which is constituted as follows:-

Chairman-Director General Armed Forces Medical Services(DGAFMS) Member-Director General Medical Services (Army) [DGMS(Army)] Director General Medical Services (Navy) [DGMS (Navy)] Director General Medical Services (Air) [DGMS (Air)] Director General Hospital Services (Armed Forces) [DGHS(AF)] Secretary- Addl Director General Armed Forces Medical Services(AddI.DGAFMS) The Medical Services Advisory Committee (MSAC) will be responsible to the Chiefs of Staff Committee. It may make any recommendations on matters of medical organisation or policy to the Government, through the Chiefs of Staff Committee. The MSAC will be responsible for the co-ordination of the overall medical policy of the Government, the implementation of which will be the responsibility of the Director Generals Medical Services (DGsMS) concerned.

6. Officers of the AMC will be allotted to either the administrative or specialist cadre in accordance with terms and conditions sanctioned by the Government from time to time.

7. Female nurses with registerable qualifications in general nursing and midwifery are appointed to the Military Nursing Service as Nursing Officers. Selected Nursing Officers are given specialist training in specified subjects at selected hospitals and institutions. Probationer nurses will be trained in selected Armed Forces Hospitals.

8. The main objective of the Armed Forces Medical ically Services is to provide comprehensive health care cover to the entitled and authorized clientele both during war as well as in peace. The Medical Services of the Armed Forces are maintained for the purpose of the will preservation of the health of the members of WP(C) NO. 43207 OF 2023 and conctd. Case 15 Armed y be Forces and their families, the prevention of diseases be and for the care and treatment of the sick and wounded. s to In addition, they form the necessary peace-time nucleus for the Medical Organization in war.

9. GENERAL DUTIES OF MEDICAL OFFICERS

(a) To recommend to their respective Commanders verbally or in writing, such preventive and remedial measures relating to stations. garrisons, barracks, hospitals, encampments. billets and similar establishments of the Army. Navy and the Air Force, regarding food. movement, transport, dress, physical training.

drill, duties, working conditions and environment, and all other matters which may, in their opinion, be conducive to the preservation of the health and the prevention or mitigation of disease.

(b) To treat professionally and care for all entitled sick and wounded.

(d) To provision, maintain and replenish medical stores and equipment.

(e) To prepare health and vital statistics.

(f) To train all ranks of the AFMS, entrusted to their care.

(g) To assess the physical fitness of candidates for commissions in the Armed Forces, of recruits, and of others, prior to entering the Armed Forces.

2. (h) To examine and report upon the health of all ranks of the Armed Forces periodically and as and when necessary.

(j)To carry out research on selected topics, as required.

(k) To examine and treat civilians when required by the Administrative authority.

(l) To take or recommend all other measures with a view for prevention of diseases and development of positive health among Armed Forces personnel and their families.

11. On co-joint reading of the aforementioned Rules, it is evident that the Medical Board consisting of Doctors should examine WP(C) NO. 43207 OF 2023 and conctd. Case 16 the cases in light of etiology of a particular disease after considering all relevant particulars of the case and record their conclusions with reasons in clear and unambiguous terms with the 'pension sanction authority', which would enable to appreciate fully in determining the question of entitlement or otherwise, according to the Rules aforementioned. The aforementioned Rules also empowers the Medical Board to comment on the evidence, both for and against the concession of entitlement. Thus a complete guideline has been given to the Doctors.

12. Paragraph 423 deals with the attributability to service. Para 423(a), (c) and (d) reads thus:

423. (a) For the purpose of determining whether the cause of a disability or death resulting from disease is or is not attributable to Service, it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a Field Service/Active Service area or under normal peace conditions. It is, however, essential to establish whether the disability or death bore a causal connection with the service conditions. All evidence both direct and circumstantial will be taken into account and benefit of reasonable doubt, if any, will be given to the individual. The evidence to be accepted as reasonable doubt for the purpose of these instructions should be of a degree of cogency, which though not reaching certainty,carries a high degree of nevertheless probability. In this connection, it will be remembered that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. If the evidence is so strong against an individual as to leave only a remote possibility in his/her favour, which can be dismissed with the sentence "of course it is possible but not in the least probable"

the case is proved beyond reasonable doubt. If on the other hand, the evidence be so evenly balanced as to render impracticable a determinate conclusion one way or the other, then the case would be one in which the benefit of the doubt WP(C) NO. 43207 OF 2023 and conctd. Case 17 could be given more liberally to the individual, in cases occurring in Field Service/Active Service areas.

(c) The cause of a disability or death resulting from a disease will be regarded as attributable to Service when it is established that the disease arose during Service and the conditions and circumstances of duty in the Armed Forces determined and contributed to the onset of the disease. Cases, in which it is established that Service conditions did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will be regarded as aggravated by the service. 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 Service in the Armed Forces.

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.

(d) The question, whether a disability or death resulting from disease is attributable to or aggravated by service or not, will be decided as regards its medical aspects by a Medical Board or by the medical officer who signs the Death Certificate. The Medical Board/Medical Officer will specify reasons for their/his opinion. The opinion of the medical Board/Medical Officer, in so far as it relates to the actual cause of the disability or death and the circumstances in which it originated will be regarded as final. The question whether the cause and the attendant circumstances can be accepted as attributable to/aggravated by service for the purpose of pensionary benefits will, however, be decided by the pension sanctioning authority.

13. Precise meaning of the aforementioned Rules conveys that the proof beyond reasonable doubt would not mean a proof beyond a shadow of doubt. But on the other hand, if the evidence be so evenly balanced so as impracticable to render a determinative conclusion in one way or the other, the case would be one which would fall in according the benefit of the doubt more liberally to the individual, in cases occurring in Field Service/Active WP(C) NO. 43207 OF 2023 and conctd. Case 18 Service areas. The Medical Board/Medical Officer will specify reasons for their/his opinion. Opinion of the Medical Board/Medical Officer, in so far as it relates to the actual cause of the disability or death and the circumstances in which it originated will be regarded as final. But the question whether the cause and attending circumstances can be attributable to or aggravated by service for the grant of pensionary benefits will, however be decided by the pension sanctioning authority.

14. The facts of each and every case, in brief, are required to be narrated for answering the question raised above.

WP(C) No.43207 of 2023 (Havildar Anil Kumar NS v. Union of India and Others)

15. Petitioner, Anilkumar N.S was a havildar, who was recruited in the Indian Army on 26.12.1992 and superannuated from service on 31.12.2018 on completion of his service. According to him, was physically and mentally found fit at the time of enrollment, in the absence of any note of abnormality on record by the medical experts. During the service, was posted in various locations including adverse climatic conditions, field stations and operational areas. In the month of May 2018, while serving at Sukna in West Bengal, suffered severe chest pain and was admitted in the Hospital and thereafter was shifted to Command Hospital, Calcutta WP(C) NO. 43207 OF 2023 and conctd. Case 19 and further to RR hospital, Delhi. He was found to be suffering from 'Hypertrophic Cardiomyopathy' (non obstructive) and was implanted with AICD (Automatic Implantable Cadrioverter- Defibrillator), a permanent device called pace maker. Release Medical Board assessed the disabilities (i) Hypertrophic Cardiomyopathy (non obstructive) and (ii) AICD implantation done at 20% and further opined the disabilities were neither attributable to nor aggravated by military service.

16. Vide Annexure A1/4, pertaining to the opinion of Medical Board, it was written under the Head 'Attributable to Service - Yes' but later, vide Annexure A1/7, it was referred to be 'No', though his percentage of disability with duration was assessed as 20%. The relevant clauses of the opinion of the medical report with different version are extracted herein below:

OPINION OF THE MEDICAL BOARD

1. Cause/Relationship of the Disability with Service Conditions or otherwise:-

Disability-

1. HYPERTROPHIC CARDIOMYOPATHY(Non obstructive)

2. AICD IMPLANTATION DONE Attributable to service (Y/N)- YES Aggravated by service (Y/N)- NO Not connectd with service (Y/N)- NO Reason/Cause/Specific Conditions and period in service(Y/N)- _ OPINION OF THE MEDICAL BOARD

1. Cause/Relationship of the Disability with Service Conditions or otherwise:-

Disability-

i). HYPERTROPHIC CARDIOMYOPATHY(Non obstructive) WP(C) NO. 43207 OF 2023 and conctd. Case 20

ii). AICD IMPLANTATION DONE Attributable to service (Y/N)- NO Aggravated by service (Y/N)- NO Not connectd with service (Y/N)- YES Reason/Cause/Specific Conditions and period in service(Y/N)-

Idiopathic Disease not related to mil service as per para 8 of chapter VI of GMO 2008

2. xxxx

3. xxxx

4. xxxx

5. xxxx

6. What is present degree of disablement as compared with a healthy person of the same age and sex?( Percentage will be expressed as Nil or as follows ): 1-5%, 6-10%, 11-14%, 15-19% and thereafter in multiples of ten from 20% to 100% Disability-

i). HYPERTROPHIC CARDIOMYOPATHY(Non obstructive)

ii). AICD IMPLANTATION DONE Percentage of disablement with duration- 20% for life Composite assessment for all disabilities with duration( Max 100% with duration) - 20% for life Disability qualifying for disability pension with duration- Nil% for life Net assessment qualifying for Disability Pension ( Max 100% with duration)- Nil% for life

17. On the basis of the aforementioned medical opinion, the pension sanctioning authority vide communication A2 dated 7.1.2019 rejected the case for disability pension. The same reads as under:

REJECTION OF DISABILITY PENSION IN RESPECT OF NO 15311877M EX HAV ANIL KUMAR NS

1. After due examination of your case in accordance with relevant rules, it has been decided by the competent authority that you are not entitled for Disability Pension in terms of Regulation 81 of Pension Regulations for the Army 2008, Part-1, since your disabilities viz(a) "HYPERTROPHIC CARDIOMYOPATHY (NON OBSTRUCTIVE)" and (b) "AICD IMPLANTATION DONE" as recorded in Release Medical Board proceedings, have been found to be Neither Attributable to Nor WP(C) NO. 43207 OF 2023 and conctd. Case 21 Aggravated by Military Service 2 In case you are not satisfied with the above decision you may prefer an appeal to the Appellate Committee on first Appeal (ACFA) within six month from the date of receipt of this letter by you. The appeal may be addressed to Director, PS-4 (Imp-

11). AG's Branch, Integrated HQ of MoD (Army), DHQ-PO, New Delhi-110 011 and submitted to this Record Office in duplicate for further necessary action.

19. The First appeal was dismissed vide A3 in the following manner:

FIRST APPEAL AGAINST REJECTION OF DISABILITY PENSION SUBMITTED APHY NO 18311877M EX HAV ANILKUMAR NS REJECTION

1. Reference your letter No.15311877M/1st Appeal/ Pen(D) dated 13 May 2019 2 The Appellate Committee on First Appeals (ACFA) has carefully considered the appeal dated 21 Jan 2019 submitted by above named individual in the light of relevant rules and administrative/medical provisions and the appeal has not been approved to the extent indicated below.

HYPERTROPHICCARDIOMYOPATHY(NONOBSTRUCTIVE) Hypertrophoc cardiomyopathy is a disease of the heart muscles which is idiopathic in origin with convincing role of heredity, Hence per se disability is not attributable to service Aggravation is conceded when the individual does not get the benefit of sheltered appointment and serves in Field/HAA/CI ops area/Afloat service following onset of the disability or in case of delayed and oma[[rp[roate treatment]. In the instant case, the indl was asymptomatic and was detected to have the disability incidentally in peace AICD IMPLANTATION DONE In the instant case, the indl was asymptomatic and was detected to have the disability incidentally in peace station. He continued to serve in peace area after onset. Diagnosis and treatment were prompt and adequate with AICD implantation and he was asymptomatic at the time of release. Hence ID is conceded as neither attributable to nor aggravated by service WP(C) NO. 43207 OF 2023 and conctd. Case 22 (Para 8 Chap VI, GMO2002, amendment 2008)

3. If the individual is not satisfied with the decision of the Committee, he may prefer second appeal to Second Appellate Committee on Pension (SACP) through Record Office within six months from the date of receipt of this letter. The appeal may be addressed to the Chairman, SACP and forward to concerned Record Office. He may also approach Kendirya Sainik Board, Min of Defence RK Puram, New Delhi for Financial Assistance, if admissible under the rules, out of Raksha Mantri's Discretionary Fund. Therefore, all service/medical documents received vide your letter under reference are returned herewith.

18. The second appeal preferred has also been dismissed vide Ext. R3 dated 20.2.2020 in the following manner:

SECOND APPEAL AGAINST REJECTION OF DISABILITY ELEMENT IN RIO NO 15311877M EX HAV ANILKUMAR NS:

REJECTION Ref your letter No 15311377M/2nd Appeal/Pen. (D) dt 22 Aug 2019, Second Appeal submitted by No. 15311877M Ex Hav Anil Kumar NS for grant of Disability Element has been examined by the members of Second Appellate Committee on Pension (SACP) based on his service/ medical documents and in the light of relevant rules/ instructions on the subject and considered his disabilities as neither attributable to nor aggravated by military service on the following grounds Hypertrophic Cardiomyopathy (Non Obstructive) In the instant case, the individual was asymptomatic and was detected to have the disability Incidentally in Peace. He continued to serve in peace after onset. Diagnosis and treatment were prompt and adequate with AICD Implantation and he was asymptomatic at the time of release. Hence disability is conceded as neither attributable to nor aggravated by service In terms of Para 8, Chap VI, GMO 2002, amendment 2008.

AICD Implantation Done WP(C) NO. 43207 OF 2023 and conctd. Case 23 Disability is the treatment for disability (i) and has no causal connection with service. Hence, disability is also conceded as neither attributable to nor aggravated by military service.

3. In view of the above, the appeal has not been accepted and the said individual is not entitled for Disability Element for the disabilities under appeal. One Ink signed copy may be forwarded to the appellant accordingly. The service/medical/documents received vide your letter under ref are returned herewith

19. The Tribunal rejected the case on the ground that it was not attributable to service by relying upon the second part of medical opinion.

WP(C) No.818 of 2024 (Union of India and Others v. EX No.14597697Y NAIK (TS) HARI KUMAR AR)

20. After having undergone medical examination at the time of recruitment, was found physically and medically fit to join the Army. There was no note of abnormality. He had undergone rigorous military training including parade, PT and training on arms and ammunitions. Was recruited in the Indian Army on 18.7.1986 and superannuated on 31.7.2006. Before superannuation, during 2003 while serving at Delhi, had developed Type II Diabetes Mellitus and the medical category was downgraded to category BEE permanent. At the time of superannuation, his disability was assessed as 11-14% with an opinion that disability was neither attributable to nor aggravated by military service vide Annexure A1. Respondent/ Applicant preferred OA No.335 of 2016 which was WP(C) NO. 43207 OF 2023 and conctd. Case 24 disposed off by the learned Tribunal on 1.3.2017, directing the applicant to prefer an appeal against the denial of disability pension. Aggrieved by the rejection of the second appeal, the respondent filed OA No.441 OF 2018 and the same was allowed vide order dated 19.7.2022.

WP(C) NO.2458 of 2024 (Union of India and Others v. Naib Subedar Dharman)

21. Applicant before the Armed Force Tribunal joined the Army on 4.1.1984 and was discharged on 31.3.2009. There was no note of medical disability or abnormality at the time of recruitment. However during 2007, had developed medical problems while serving in Patiala. Thereafter, posted in Bangalore and was admitted in Command Hospital, Air Force, Bangalore. Due to medical problems, was unable to cope up with the military duties and requested for discharge on compassionate grounds after having served 25 years 2 months and 28 days. The Release Medical Board conducted his medical examination at Command Hospital, Bangalore and assessed the disabilities (a) Complex Partial Seizure, (b) Obesity and (c) Dyslipidemia and opined that the aforementioned disabilities were neither attributable to nor aggravated by military service. The Medical Board found that he had 40% disability for life due to Complex Partial Seizure. The first appeal preferred on 1.9.2016 WP(C) NO. 43207 OF 2023 and conctd. Case 25 was rejected on 19.4.2017 and second appeal on 13.2.2018. He preferred a claim before the Tribunal vide OA No.244 of 2018. Vide order dated 6.6.2022, Tribunal allowed the application by directing to issue corrigendum PPO granting disability element of pension at the rate of 40% which would stand rounded off to 50% from his date of discharge.

WP(C) No.16857 of 2024 (Union of India and Others v. Captain Paul Thomas)

22. Applicant before the Armed Force Tribunal was commissioned in the Indian Navy on 23.7.1967 and developed Coronary Artery Disease during 1997 owing to stress and strain of Naval Service. He was denied disability pension though Released Medical Board assessed the disability at 30%. He approached the Tribunal vide OA No.62 of 2020 and vide order dated 6.2.2023, allowed the application by directing to issue corrigendum PPO granting disability pension to the applicant at 50% for a period of two years from the date of discharge and pay the arrears within a period of four months from the date of receipt of a copy of the order. WP(C) No.16862 of 2024 (Union of India and Others v. Lt. Col.Flowerlet Joseph (Retd).

23. Respondent/Applicant joined as a Probationary Nurse in Army Hospital, Delhi Cantt on 30.12.1985 and was commissioned in WP(C) NO. 43207 OF 2023 and conctd. Case 26 the Military Nursing Service on 1.1.1989. Thereafter, she served in various military hospitals under high work pressure. During the course of service, developed following diseases: (i) Degenerative Disc Disease, (ii) Primary Hypertension,(iii) Seizure Disorder and (iv) Osteoarthritis Bilateral Knee, all of which were attributable to and aggravated by service. She was subjected to examination by Medical Examination Board on 27.10.2015 and found that the diseases, 'Seizure Disorder' and 'Primary hyper tension' were not aggravated by military service but other two ie., Degenerative Disc Disease and Osteoarthritis Bilateral Knee were attributable to the service and thus, was granted partial disability pension on two aforementioned accounts. OA No.85 of 2022 was preferred which has been allowed in toto. Aggreived of the same, Union of India filed the writ petition.

WP(C) No.23112 of 2024 (Union of India and Others v. Col. NC Isaac (Retd)

24. Applicant before the Tribunal, respondent herein, was commissioned in the Army on 23.8.1986 and superannuated on 31.8.2017 in low medical category after rendering 31 years of service. At the time of superannuation, the Release Medical Board diagnosed him with the following disabilities: (i) 'Diabetes Mellitus Type - II and (ii) CAD ST Elevation Anterolateral Wall MI, WP(C) NO. 43207 OF 2023 and conctd. Case 27 P/Thrombolysis, SVD-P/PTCA to LAD, Hypertrophic Obstructive Cardiomyopathy at 20% and 30% respectively with a composite assessment at 40% for life with a condition that these disabilities were neither attributable to nor aggravated by the Army Service. Remedy of statutory appeals were though preferred, but of no avail and preferred OA bearing No.204 of 2019 which has been allowed.

25. The consistent stand of the Union of India was that there have been certain cases where the petitioners failed to challenge the report of the Release Medical Board or the appellate authority. In the absence of the same, applications were not maintainable. Even otherwise, judicial review is impermissible as the sanctioning authority, after consideration of the medical report, was justified in refusing the application for the disability pension. Whatever disability pension according to the Rules was permissible, had been granted to few of the applicants and all have superannuated. There was delay in making the claim. OA should have been dismissed on the ground of delay and latches.

26. The Tribunal noticing all the contentions allowed all the OAs except OA No.110 of 2020 by relying upon the report of the Release Medical Board.

27. Learned counsel representing the applicant in the OA and the writ petitioner in WP(C) No.43207 have buttressed their WP(C) NO. 43207 OF 2023 and conctd. Case 28 submissions by relying upon the provisions of Rules referred to above, particularly, Rules 2002 amended in 2010 advising the Medical Officers to comply with the military pension rules which cannot be considered to be final, as it had to be subjected to the satisfaction of sanctioning authority. Orders passed in the first and second appeals are stereotype/mechanical manner and there is no application of mind. As far as the W.P(C) No.43207 is concerned, at the time of examination, the medical disability was found to be 'attributable to service' but without giving any opportunity of hearing or re-examination it was changed to be 'not attributable to service'. Such dichotomous approach is not permissible in the eyes of law. In support of the contentions, relied upon the judgment of Dharamvir Singh v. Union of India and Others (2013) 7 SCC 316 and Union of India v. Angad Singh Titaria (AIR 2015 SC 1898). The aforementioned judgments are based on Rule 14 of the entitlement Rules as well as Para 423 (a), (c) and (d) of the Medical Officers Military Pension Rules, 2002. The 1982 Rules, in such circumstances, cannot be taken into consideration for effectual and proper adjudication of the controversy. Even in the 1982 Rules also, there is a presumption of sufferance of a disability, attributable to or aggravated to the service. Union of India had not taken consistent stand, much less the Central Administrative Tribunal, whereas in the WP(C) NO. 43207 OF 2023 and conctd. Case 29 connected matters, all the applications of similar nature have been allowed except the case of the petitioner in WP(C) No.43207 of 2023.

28. On the other hand learned ASG, Sri. A.R.L Sundaresan submitted that for entitlement of disability pension, there has to be minimum of 20% of disability whereas in the case of Hari Kumar AR in WP(C) No.818 of 2024, disability is only to the extent of 6-11% and the writ petition is liable to be allowed on this ground. In support of the contentions, he also relied upon the judgment of Supreme Court in Union of India and Others v. Dhir Singh China, Colonel (Retd.) (2003) 2 SCC 382 to contend that the decision of the Medical Board is sacrosanct and judicial review is impermissible. In other words, whatever be the opinion expressed by the Medical Board, can only be subjected to consideration by the pensionary board and cannot be substituted by a judicial verdict in the absence of the technical and medical acumen. In all the cases, except in one matter, the disability has been found to be not attributable to service or aggravated during the service. Wherever it was connected with the service, the disability pension had been granted. Various other decisions have also been relied upon; Union of India v. Surinder Singh Rathore (2008) 5 SCC 747, Secretary, Ministry of Defence and Others v. A.V Damodaran (Dead) through LRS and others (2009) 9 SCC 140, Union of India and Others v. Ram Prakash WP(C) NO. 43207 OF 2023 and conctd. Case 30 (2010) 11 SCC 220, Union of India and Another v. Talwinder Singh (2012) 5 SCC 480, Dharamvir Singh v. Union of India and Others (2013) 7 SCC 316, EX CFN Narsingh Yadav v. Union of India and Others (2019) 9 SCC 667. In most of the cases, the incumbents were serving in a peace area and therefore, the said disabilities cannot be said to be attributable to service. At the best, could be genetic or constitutional.

29. On the other hand, learned counsel appearing on behalf of the applicants who have been successful before the Central Administrative Tribunal countered the argument of learned ASG and submitted that the citations relied upon by the other side depends upon the facts and circumstances occurred therein and therefore each and every case has to be decided on the touchstone of the facts as well as the nature of the jobs. There is always a presumption of suffering a disability which is attributable to or aggravated to service in view of the land mark judgment rendered by the Supreme Court in Union of India (UOI) and Ors. vs. Rajbir Singh (Civil Appeal No.2904 of 2011) decided on 13.2.2015. In most of the judgments, there is no reference to clauses (a), (c) and (d) of Rule 423 of the Medical Officers (Military Pension Rules) 2002. The judgment in Union of India v. Angad Singh Titaria (AIR 2015 SC 1898) was also on the basis of interpretation of Rule 9 of Entitlement Rules whereby it WP(C) NO. 43207 OF 2023 and conctd. Case 31 does not cause an onus upon the claimant to claim the disability pension.

30. We have heard the learned counsel for the parties and appraised the paper book and the judgments cited at bar. On examination of the clauses 4,5,6,7,8 and 9 of 1982 Entitlement Rules for Casualty Pensionary Awards to the Armed Forces Personnel, Supra, it is evident that the burden of proof is not imposed upon the incumbent or individual to claim the disability pension but has to be on the basis of the examination. A presumption is also liable to be drawn in favor of the individual to determine whether there was any entry or recordings of any ailment or otherwise at the time of admission in the military service. In all the cases, there was no such adverse entry with regard to disability. No doubt, before promulgation of 2002 Rules, ibid, the department had been applying the 1961 Rules and 1982 Regulations for the purpose of entertaining the claim of disability pension. Even on examination of the Rules, it is clearly deciphered that the member is presumed to have been in sound physical and mental condition on appending the service. But the strong burden of proof is imposed upon the department ie., the Release Medical Board as well as the competent authority sanctioning the pension. In all the aforementioned cases, heavy reliance has been laid upon the reports of the Release Medical Board WP(C) NO. 43207 OF 2023 and conctd. Case 32 but except in one case, we have been prevented or deprived of the decisions either in endorsing or disputing the views expressed by the said board. The working of the said Board has not been up to the mark, particularly, in view of the 2000 Rules, as evident from WP(C) No.43207 of 2023; there has been a dichotomous approach with regard to the opinion of disabilities suffered by Havildar Anil Kumar N.S. In the first call, at time of issuance of the report, the disability was found to be attributable to service but at the back and without giving any opportunity or re-examination, has been changed. This reflects the callous and tardy approach of the Medical Board. Therefore it cannot be treated as a sermon to determine the disability. In such circumstances, the competent authority is required to be more pragmatic and liberal in examining the report of the Release Medical Board. In all the other judgments except in Dharamvir Singh v. Union of India and Others (2013) 7 SCC 316, the reliance has been laid to 1961 and 1982 Rules. The Hon'ble Supreme Court was not apprised of the 2002 Medical Officers Pension Rules. On perusal of clauses (a), (c) and (d) of Rule 423 supra, it is evident that the presumption has to be drawn in favor of the individual, as having suffered the disability attributable to or aggravated by service. It is not easy or comfortable for the Army personal to work either in a peaceful or non peaceful area, for, they WP(C) NO. 43207 OF 2023 and conctd. Case 33 are required to maintain strict discipline. We would be failing in our duty in not extracting the findings rendered in Dharamvir Singh v. Union of India and Others (2013) 7 SCC 316. Paragraph 33 of the same reads thus:

33. As per Rule 423(a) of General Rules for the purpose of determining a question whether the cause of a disability or death resulting from disease is or is not attributable to service, it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a field service/active service area or under normal peace conditions.

"Classification of diseases" have been prescribed at Chapter IV of Annexure I; under paragraph 4 post traumatic epilepsy and other mental changes resulting from head injuries have been shown as one of the diseases affected by training, marching, prolonged standing etc. Therefore, the presumption would be that the disability of the appellant bore a casual connection with the service conditions.

31. Judgments in Veerpal Singh Vs. Union of India (2013 (8) SCC

83), Sukhvinder Singh Vs. Union of India (2014) 14 SCC 364), Union of india vs. Rajbir Singh (2015(1)KLT(SN)121) led to an irresistible conclusion that the benefit of disability pension have been granted to the armed Forces personals. In our considered view, Union of India should not be adopting a pick and choose policy in fighting the cases wherever such relief has been granted, tooth and nail.

32. WP(C) No.43207 of 2023 is therefore allowed. Respondents are directed to release the pension as it has already been assessed as 20%. WP(C) No.818 of 2024 filed by the Union of India is allowed as the disability is not confirming to the provisions of Regulation 173 as it is only WP(C) NO. 43207 OF 2023 and conctd. Case 34 between 10 to 11%. The order of the Tribunal is set aside. Writ petition is allowed. All other writ petitions preferred by the Union of India WP(C) No.16857 of 2024, WP(C) No.16862 of 2024, WP(C) No.23112 of 2024 and WP(C) No.2458 of 2024 are dismissed.

SD/-

AMIT RAWAL JUDGE SD/-

sab                                          EASWARAN S.
                                                  JUDGE
 WP(C) NO. 43207 OF 2023 and conctd. Case
                                   35

                  APPENDIX OF WP(C) 818/2024

PETITIONER EXHIBITS

Exhibit P1            TRUE COPY OF REPLY STATEMENT FILED BY THE
                      PETITIONERS/ RESPONDENTS

Exhibit P2            TRUE COPY OF ORDER DATED 19.07.2022 IN
                      O.A. NO. 441 OF 2018 OF ARMED FORCES
                      TRIBUNAL, REGIONAL BENCH, KOCHI
 WP(C) NO. 43207 OF 2023 and conctd. Case
                                   36

                  APPENDIX OF WP(C) 2458/2024

PETITIONER EXHIBITS

Exhibit P1            TRUE COPY OF THE REPLY STATEMENT DATED
                      26.9.2018 FILED BY THE PETITIONERS IN O.A.
                      NO.244 OF 2018 BEFORE THE HON'BLE ARMED
                      FORCES TRIBUNAL, REGIONAL BENCH, KOCHI

Exhibit P2            TRUE COPY OF ORDER DATED 6.6.2022 IN O.A.
                      NO.244 OF 2018 OF THE HON'BLE ARMED FORCES
                      TRIBUNAL, REGIONAL BENCH, KOCHI
 WP(C) NO. 43207 OF 2023 and conctd. Case
                                   37

                 APPENDIX OF WP(C) 16857/2024

PETITIONER EXHIBITS

Exhibit P1            TRUE COPY OF REPLY STATEMENT FILED BY THE
                      PETITIONERS IN O.A. NO. 62/2020

Exhibit P2            TRUE COPY OF ORDER DATED 6/2/2023 IN OA
                      62/2020 OF THE ARMED FORCES TRIBUNAL,
                      REGIONAL BENCH KOCHI
 WP(C) NO. 43207 OF 2023 and conctd. Case
                                   38

                 APPENDIX OF WP(C) 16862/2024

PETITIONER EXHIBITS

Exhibit P1            TRUE COPY OF REPLY STATEMENT FILED BY THE
                      PETITIONERS IN O.A. 85/2022

Exhibit P2            TRUE COPY OF ORDER DATED 03/10/2023 IN OA
                      85/2022 OF THE ARMED FORCES TRIBUNAL,
                      REGIONAL BENCH KOCHI
 WP(C) NO. 43207 OF 2023 and conctd. Case
                                     39

                 APPENDIX OF WP(C) 43207/2023

PETITIONER ANNEXURES

Annexure A-1           TRUE COPY OF RMB PROCEEDINGS

Annexure A-2           TRUE COPY OF LETTER NO. 15311877M/ PEN(D)
                       DATED 07.01.2019

Annexure A-3           TRUE COPY OF LETTER NO.B/40502/168/ 2019/
                       AG/PS-4(IMP-II) DATED 22.07.2019

Annexure A-4           TRUE   COPY   OF    SECOND     APPEAL    DATED
                       14.08.2019

Annexure A-5           TRUE COPY OF RELEVANT PAGES OF DISCHARGE
                       CERTIFICATE

Annexure R-1           TRUE COPY OF RELEASE MEDICAL BOARD (AFMSF-
                       16)

Annexure R-2           TRUE COPY OF REJECTION OF FIRST APPEAL

VIDE LETTER B/40502/168/2019/AG/PS-4(IMP-

                       II) DATED 22.07.2019

Annexure R-3           TRUE COPY OF REJECTION LETTER OF SECOND
                       APPEAL             VIDE          LETTER
                       B/38046A/537/2019/AG/PS-4(2ND   APPEAL)
                       DATED 20.02.2020

Annexure R-4           TRUE COPY OF ADJUDICATION      OF   DISABILITY
                       PENSION DATED 05.01.2019

Annexure R-5           TRUE COPY OF RELEVANT EXTRACT OF PARAGRAPH
                       4(A) OF ENTITLEMENT RULES 2008

Annexure R-6           TRUE COPY OF RELEVANT EXTRACT OF PARAGRAPH
                       5 OF ENTITLEMENT RULES 2008

Exhibit P-1            TRUE COPY OF O.A. 110 OF 2020 ALONG WITH
                       ANNEXURES

Exhibit P-2            TRUE COPY OF THE    REPLY    STATEMENT   ALONG
                       WITH ANNEXURES
 WP(C) NO. 43207 OF 2023 and conctd. Case
                                  40

Exhibit P-3         TRUE COPY OF THE ORDER IN OA NO.110 OF
                    2020 PASSED BY THE ARMED FORCES TRIBUNAL,
                    REGIONAL BENCH KOCHI ON 15.02.2023

Exhibit P-4         TRUE COPY OF JUDGMENT DATED 24.02.2015 IN
                    UOI & ORS V ANGAD SINGH TITARIA (2015) 12
                    SCC 257

Exhibit P-5         TRUE COPY OF HON'BLE ARMED FORCES TRIBUNAL
                    PRINCIPAL BENCH NEW DELHI ORDER DATED
                    01.08.2018 IN OA NO. 254 OF 2016 IN EX SGT
                    KAMLESH KUMAR JHA V UOI & ORS

Exhibit P-6         TRUE COPY OF HON'BLE ARMED FORCES TRIBUNAL
                    REGIONAL    BENCH   KOCHI    ORDER   DATED
                    17.01.2023 IN OA NO. 204 OF 2019 IN COL NC
                    ISAAC (RETD) V. UNION OF INDIA & ORS
 WP(C) NO. 43207 OF 2023 and conctd. Case
                                      41

                       APPENDIX IN 23112 OF 2024

PETITIONER ANNEXURES

Annexure A-2           TRUE COPY OF THE RMP PROCEEDINGS (AFMS-
                       16)PERTAINING TO THE APPLICANT

Annexure A-3           TRUE   COPY   COPY   OF  THE   LETTER   NO

13416/1C45788/EME/MP6(F) DATED 18-09-2017 ALONG WITH LETTER NO 13416/1CP45788 EME/MP 6(F) 551/2017/AG/PSP4(LMP-1)DATED 12-09-

                       2017

Annexure A-5           TRUE COPY OF THE LETTER NO 13416/1C
                       45788/EME/MP                          -6(F)

35/2018/APPEAL/AG/PSP4(LMP DATED 2-7-2018 Annexure A-7 TRUE COPY OF THE LETTER NO B/38046/418/2018/AG/PS-4(2ND APPEAL) DATED 13-03-2019 Annexure A-1 TRUE COPY OF THE RELEVANT PAGES OF THE SERVICE PARTICULARS BOOK OF THE APPLICANT Annexure A-4 TRUE COPY OF THE APPEAL DATED 14-11-2017 Annexure A-6 TRUE COPY OF THE APPEAL DATED 20-08-2018 Exhibit P1 THE TRUE COPY OF THE O.A.204/2019 FILED BY THE APPLICANT, BEFORE THE AFT KOCHI Exhibit P2 THE TRUE COPY OF THAT REPLY FILED BY THE RESPONDENTS Exhibit P3 THE TRUE COPY OF THAT ORDER IN O.A.204/2019 DATED 17.01.2023,

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