IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 11 of 2006 The Union of India .……… Appellant Versus Madan Singh Rawat ……… Respondent JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Tarun Agarwala, J. J.S. KHEHAR, C. J. (Oral) The respondent was denied disability pension by the appellant. It is, therefore, the respondent approached this Court by filing Writ Petition No. 1178 of 2002 (S/S). A learned Single Judge of this Court allowed the aforesaid writ petition on 23/11/2004. Through the instant special appeal, the appellant has impugned the order passed by the learned Single Judge on 23/11/2004. During the course of the hearing, the learned counsel for the appellant invited out attention to Rule 7 in Appendix-II of the Pension Regulation for the Army 1961. Rule 7 is extracted hereunder:- “7. In respect of deceases, the following rules will be observed:- (a) Cases, in which it is established that conditions of military service did determine or contribute to the onset of disease but influenced the subsequent course of the disease, will fall for acceptance, on the basis of aggravation. (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 holds, for reasons to be stated, that the disease 2 could not have been detected on medical examination prior to acceptance for service the disease will not be deemed to have arisen during service. (c) If a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the and that the conditions were due to the circumstances of duty in military service.” In addition to the aforesaid Rule, learned counsel for the appellant also invited our attention to Regulation 173 of the Pension Regulation of Army, 1961 (Part-I). Regulation 173 which pertains to disability pension reads as under:- “(a) Individual must have been invalided out from service on medical grounds and, (b) The disability must be accepted by the Pension sanctioning authority as attributable to or aggravated by Military Service and, (c) The percentage of disability must not be accepted at less than 20% by the medical authority as well as by the Pension Sanctioning Authority.” The question as to whether the respondent is eligible for disability pension would have to be determined, as the case set up by the learned counsel for the appellant, on the basis of Rule 7 and Regulation 173 extracted hereinabove. The first contention advanced by the learned counsel for the appellant was that it was imperative for the respondent to have impugned the proceedings of the Medical Board. It is submitted that in the absence of any challenge to the opinion of the Medical Board, copy whereof was placed on the record of the counter affidavit, reveals that the respondent was suffering from “Psychiatric Disorder” which is not connected to his service. It is, therefore, the submission of the learned counsel for the appellant that no cause could have been made out, so as to accept the prayer 3 made by the respondent, till the opinion of the Medical Board was assailed. We have considered the first contention advanced by the learned counsel for the appellant. In the opinion of the Medical Board to which our attention was invited, at serial No.21, the response of the Medical Board to the query whether the respondent was entitled to disability pension, was in the affirmative. The Medical Board recorded, “disability pension”. Since, the Medical Board had expressly recommended the payment of disability pension to the respondent, we are satisfied that it was not necessary to respondent to assail the same. Thus viewed we find no merit in the first contention advanced by the learned counsel for the appellant. The second contention advanced by the learned counsel for the appellant was based on Regulation 173. In this behalf, the contention of the learned counsel for the appellant was, that the disability suffered by the respondent namely “paranoid personality disorder” was a constitutional disorder which is neither attributable to, nor aggravable by military service, and as such the respondent could not have been allowed disability pension. In our view, the instant submissions of the learned counsel for the appellant is misconceived for two reasons. Firstly, Regulation 173 does not debar any individual who suffers from a “constitutional disorder” from the benefit of the disability pension. Secondly, reference may be made to Rule 7 (b) wherein it has expressly been provided that a disease which had led to an individual’s discharge, would be deemed to have arisen in service, unless a note to this fact was made at the time of the individual’s acceptance into military service. Admittedly, no such note was 4 recorded at the time of enrolment of the respondent in the military service. Additionally, Rule 7(b) also mandates, that if the Medical Board opines that the disease under reference could not have been detected at the time when the individual in question enrolled into military service, he would not automatically be entitled to disability pension. On the instant issue also the report of the Medical Board available on the record of the counter affidavit reveals that no such opinion was expressed by the Medical Board in other words. The Medical Board did not opine that the disease suffered by the respondent could not have been detected at the time of enrolment into the military service. In the aforesaid view of the matter, and in the light of the inference derivable under Rule 7 extracted above, it was imperative to conclude that the respondent’s disease had arisen during his service. In view of the above, we do not find any merit even in the second contention raised by the learned counsel for the appellant. The third submission advanced by the learned counsel for the appellant was, that the learned Single Judge erred while recording in the impugned order that the respondent had sustained the injury leading to the disability under reference while training for boxing. In this behalf, it is the vehement contention of the learned counsel for the appellant that the respondent did not suffer any such disability during training, and as such, the conclusion recorded by the learned Single Judge needs to be upset. We have considered the third and last submission raised by the learned counsel for the appellant. In our view, the instant submission is self defeating in as much as, even if it is the case of the appellant itself, that the disability was not caused during boxing training, then the only other possibility is that it was caused 5 during the course of his employment. We accordingly find no merit in the last contention advanced on behalf of the appellant. No other submission was advanced by the learned counsel for the appellant. For the reasons recorded hereinabove, we found no merit in the appeal. The same is accordingly dismissed. (Tarun Agarwala, J.) (J.S. Khehar, C.J.) 01.12.2009 Shiv