IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1358 of 2009 1. THE UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF DEFENCE (D-PEN-A), NEW DELHI- 110011. 2. THE C.D. (P) G-3 SECTION, ALLAHABAD (UP). 3. THE RECORD OFFICER TOPKHANA ABILEKH, ARTILLERY RECORDS NASIK ROAD CAMP, MAHARASHTRA. 4. THE UNDER SECRETARY TO THE GOVT. OF INDIA MINISTRY OF DEFENCE D.PEN-A, NEW DELHI- 110011. --------- Respondents/Appellants Versus 1. RABINDRA KUMAR SINGH S/O BADAN SINGH R/O VILL.- SANDALPUR, P.O.- KATSA, P.S.- BHELDI, DISTT.- SARAN. ---------- Petitioner/Respondent ----------- For the Appellants :- Dr. Pankaj, C.G.C. For the Respondent :- Mr. Sanjay Kumar Singh, Adv. ----------- 6 15.03.2011 I.A. No. 6839 of 2009 Having heard learned counsel for the parties as also taking into account the facts and circumstances mentioned herein, the delay of 190 days in preferring this appeal is condoned. I.A. No. 6839 of 2009 is accordingly allowed. L.P.A. No. 1358 of 2009 As we have condoned the delay and have also heard the parties on merits, we are disposing this appeal finally. The respondent Union of India and its officials are in appeal against the order of the learned single Judge dated 2 21.1.2009 in CWJC No. 8148 of 2004, whereby and whereunder, the prayer made by the respondent writ petitioner as with regard to considering his case for grant of disability pension from the date he was invalidated has been allowed. Learned counsel for the appellant has contended that as per the relevant rules governing the grant of disability pension, the respondent writ petitioner did not qualify, inasmuch as, the Medical Board had found that the writ petitioner was suffering from Neurosis and such disease was not attributable to the military service. He has further tried to assail the impugned order on the ground of delay in moving this Court by taking a plea that the invalidation of the respondent writ petitioner was made way back in the year 1991 but the writ application was filed in the year 2004. Per contra, learned counsel for the respondent writ petitioner has supported the view taken by the learned single Judge and has in this regard contended that it is a matter of record 3 that till the year 1990, the respondent writ petitioner was absolutely medically fit and had contacted this disease of Neurosis only in the month of September, 1990. In this context, he has also placed reliance on certain documents appended with the Memo of Appeal which we will refer to while dealing the case on merits. He has also relied on the judgment of the Apex Court in the case of Ex-Sergeant Amrit Singh Vs. Union of India & Ors. reported in 2000(5) SLR 559 on which the learned single Judge has placed reliance while allowing the prayer made in the writ application. In the considered opinion of this Court, this appeal has to be dismissed, first of all the question of delay in moving this Court cannot be now gone into, inasmuch as, earlier the same writ application of the respondent writ petitioner was dismissed on the ground of delay by an order of learned Single Judge dated 18.12.2005 but, the said order was set aside by a Division Bench in an order dated 15.3.2007 in L.P.A. No. 108 of 2006. The appellants having not assailed against 4 the aforesaid order of the division bench had acquiesced their right now to raise the question of delay in filing of the writ petition. So far the merits of the case of the respondent writ petitioner for grant of disability pension is concerned, it is born out from Annexure-1 the report of Medical Board proceeding that the disease of Neurosis of the petitioner was first detected on 20th of September, 1990 and treatment given to him thereafter did not yield any satisfactory result. The petitioner was also subjected to exhaustive medical test as would appear from the report contained in Annexure-2 to the Memo of Appeal. Annexure-2 itself goes to show that the petitioner had exemplary service record and there was no order punishment against him. The Medical Board infact had itself recommended for grant of 20% disability pension with gratuity. Such opinion of the Major of the Army dated 19.2.1991, however, was not accepted by the Commanding Officer who, by his order passed in the month of November, 1991, had given 5 only two reasons for not allowing the disability pension to the respondent writ petitioner, namely, (i)Such invalidment/discharge was not attributable to military service and (ii) the respondent writ petitioner did not fulfil the following conditions, namely that the disease of the petitioner after his entry in service or had been aggravated during continuance of his service. It has to be also noted here that the third reason in the stereo type format has been struck down and, therefore, only the aforementioned two reasons were taken into account for denial of disability pension to the respondent writ petitioner. This Court would find from the service record that the respondent writ petitioner had entered in service in the year 1983 and had served the Army for seven years. Records further shows that he had been detected with the disease of Neurosis only from 20.9.1990 and, therefore, it cannot be said that such disease of Neurosis had existed before his entry in Army service. As a matter of fact, the very 6 fact that the respondent writ petitioner was recruited in the Army at the age of 17 years and 10 months with full medical check up would itself be sufficient to show that he was fully physically fit at the time of his appointment in Army. If thereafter the respondent writ petitioner during continuance of the service in Army had contacted this disease of Neurosis with 20% disability, it cannot be said that it was not attributable to Military Service. The beneficial provision as with regard to the grant of disability pension has to be construed in favour of an employee/soldier liberally so as to give him the benefit of disability pension. The further submission of the learned counsel for the appellant that from the history-sheet, it would appear that it was personal differences with his wife after his marriage in the year 1989 and that the wife had committed suicide were the actual reason for the disease of Neurosis, and they would disentitle him from grant of disability pension can also not be accepted. In this context, this 7 Court would find that the Army Instructions itself clarifies the position of predisposition and aggravation in the following terms:- “18. Predisposition: “Predisposition” of “inherent constitutional tendency” in itself is not a disease. And if there is a precipitating or causative factor in service which produces the disease, then it is attributable to service, notwithstanding the inherent disposition. 19. AGGRAVATION: If it is established that the disability was not caused by service, attributability shall not be conceded. However, aggravation by service is to be accepted unless any worsening in his condition was not due to his service or worsening did not persist on the date of discharge/claim.” The aforesaid provisions, in the Army Instruction once made applicable in the case of respondent writ petitioner will itself qualify him for grant of disability pension inasmuch as he had entered in service free from any disease in the year 1983 and was absolutely all right till his marriage in the year 1989. Thus even if had he had developed the disease of Neurosis in 8 September 1990 due to personal family problem, it would still be a case of both 'predisposition' and 'aggravation' in terms of the Army Instruction and his detoriating condition during his service period will make him entitled to earn his disability pension. Thus, we find no reason to take a different view and accordingly, we dismiss this appeal with a direction to the competent authority to comply the direction given by the learned single Judge within a period of four months from the date of receipt/production of a copy of this order. The earlier interim order passed in this case would accordingly stand vacated. With the aforementioned observations and direction, this appeal is dismissed. Rishi/Kanchan (T. Meena Kumari, J.) (Mihir Kumar Jha, J.)