IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.:645 /2004 Reserved on: 2.5.2008 Decided on. :6.6. 2008 Suresh Kumar. …Petitioner Versus Union of India and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No For the petitioner : Mr. Subhash Sharma, Advocate. For the respondents : Mr. Sandeep Sharma, Assistant Solicitor General of India. Rajiv Sharma, J. The brief facts necessary for the disposal of the writ petition are that the petitioner was enrolled in the Regiment of Artillery on 28th August, 1997. He was found suffering from “ACNE VULGARIS 706” while undergoing training at Artillery Centre. He was referred to Military Hospital Devlali on 17th September, 1997. He was found unfit for military service due to “ACNE VULGARIS 706”. He was referred to another Specialty Hospital INHS Ashvini, Mumbai for second specialist’s opinion. He was examined on 29th September, 1997. The specialist opined that it was a case of severe Acne Vulgaris (Modulocystic and Pustula-r) with scattered 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 lesion on the trunk. The Invaliding Medical Board was arranged and consequently he was invalided out of service on 9th December, 1997 under clause IV of the table annexed to Army Rule 13 (3) due to disease “ACNE VULGARIS 706”. He was invalided out of army service within a period of four months after his enrolment. The Invaliding Medical Board has held that the petitioner’s disability was neither attributable nor aggravated by military service as the same was existing before his enrolment. The disability pension claim of the petitioner was forwarded to the PCDA (P), Allahabad and the same stood rejected on 17th September, 1998. He preferred an appeal against the decision dated 17th September, 1998. The appeal was rejected by the Government of India, Ministry of Defence on 10th April, 2000. Mr. Subhash Sharma, Advocate had strenuously argued that when his client was enrolled in the Army, he was not suffering from any disease and he suffered “ACNE VULGARIS 706” during the army training and the same is attributed to and aggravated by military service. Mr. Sandeep Sharma, Assistant solicitor General of India had supported the decision of the respondents whereby the petitioner was not held entitled to disability pension. I have heard the learned counsel for the parties and perused the record carefully. The petitioner was enrolled in the Regiment of Artillery on 28th August, 1997. He was bound to be medically examined at the time of his enrollment. It will be apt at this stage to reproduce Rule 7 (b) of Appendix-II of the Government of India, Ministry of Defence (Pension Branch) letter No. 138999/1/Pen-C dated the 18th April 1950, which reads thus: “7. (b): A disease which has led to an individual’s discharge or death will ordinarily be deemed to have 3 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.” If the petitioner had been suffering from any disease, a note was required to be made at the time of his acceptance for military service. He was examined while undergoing training at Artillery Centre and was referred to Military Hospital Devlali on 17th September, 1997 for medical specialist’s opinion. The opinion of the Medical Board was that the disability was existing prior to his enrolment and the same was neither disclosed by the petitioner himself nor detected by the Branch Recruiting Medical Officer. The fact remains that the petitioner was examined by the Branch Recruiting Medical Officer and if he was suffering from any disease, a note was bound to be made. Since there is no note made by the Branch Recruiting Medical Officer, the Court can safely presume and conclude that the petitioner was not suffering from any disease at the time of his enrolment. It appears from the pleadings that he has suffered this disease during the course of training. He was sent to Military Hospital, Devlali and thereafter he was also sent to INHS Ashvini, Mumbai for second specialist’s opinion. He was examined on 29th September, 1997. The Senior Advisor has opined that it was a case of severe Acne Vulgaris (Modulocystic and Pustular) with scattered lesion on the trunk. He was invalided by the Medical Board on 9th December, 1997. It is evident from Rule 7 (b) of Appendix-II of the Government of India, Ministry of Defence (Pension Branch) letter No. 138999/1/Pen-C dated the 18th April 1950 to the Pension Regulations for 4 the Army, 1961 that if the disease which has led to an individual’s discharge 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. Admittedly, the respondents have not placed on record any note prepared at the time of enrolment of the petitioner. The plea raised by Mr. Sandeep Sharma that neither the petitioner had disclosed at the time of his enrollment nor the doctor who examined him made a note and for that reason the disease of the petitioner could not be detected, cannot be accepted. At least what was expected from the respondents was to place on record the copy of the medical report when the petitioner was enrolled in the Army. The respondents have failed to produce or place on record the copy of the note of the Branch Recruiting Medical Officer and the Court is bound to draw adverse inference against the respondents under section 114 of the Evidence Act. It is necessary for the respondents to place every fact on record to prove its case. In view of the above discussion it is held that the petitioner had contacted the disease during the course of his training which as per sub- clause (b) of clause 7 Pension Regulations for the Army, 1961 will be deemed to be attributed to and aggravated by military service since no note of the pre-existing disease has been appended or placed by respondents before the Court. The Medical Board was bound to assess the disability of the petitioner as per clause 173 of Pension Regulations for the Army, 1961. It was incumbent upon the authorities while forwarding the case of the petitioner to the PCDA (P), Allahabad to ensure that his disability was properly assessed. In the absence of disability of the petitioner being assessed it was difficult for the PCDA (P), Allahabad also to consider the case of the petitioner. The appellate authority while 5 dismissing the appeal of the petitioner on 10th April, 2000 has not taken into consideration the instructions/rules mentioned hereinabove. This Court in CWP No.1742 of 1996, titled Jiwa Nand versus Union of India and another has held that in case no note is made with regard to the disease on account of which a particular person has been invalided out of service at the time of his initial recruitment, such disease would be deemed to be attributable to or aggravated by Army Service. The learned Single Judge has held as under: “In so far as the second contention of the respondents that the disease was neither attributable to or aggravated by Army Service, is concerned, the same has no merit. Admittedly, the petitioner is not shown to have been suffering from the disease on account of which he was invalided out of service at the time of initial recruitment in the Indian Army. It is by now well settled that in case no note is made with regard to the disease on account of which a particular person has been invalided out of service at the time of his initial recruitment, such disease would be deemed to be attributable to or aggravated by Army Service. In the present case there is nothing on the record to show that a note was made in the record of enrollment of the petitioner in the Indian Army that he was suffering from any kind of disease. Therefore, the disease on account of which he was invalided out of service will be deemed to be attributable to or aggravated by army service.” Consequently, the writ petition is allowed. The appellate order dated 10th April, 2000 is quashed and set aside. The respondents are directed to constitute a Re-survey Medical Board to assess the percentage of the disability of the petitioner. If the disability of the petitioner is assessed 20% or more, then the petitioner will be granted the disability pension in accordance with law. The Re-survey Medical Board 6 will be constituted within a period of 8 weeks from the date of receipt of the certified copy of the judgment and the petitioner will be duly informed about the constitution of the Re-survey Medical Board and the date of his examination. There shall be no order as to costs. June 6, 2008 (Rajiv Sharma ), J. *awasthi*