IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 765 of 2011 (O&M) Date of Decision: May 3, 2011 Union of India and others ...Appellants Versus Sardool Singh ……Respondent CORAM: CORAM: CORAM: CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE HON’BLE MR. JUSTICE HON’BLE MR. JUSTICE HON’BLE MR. JUSTICE GURDEV SI GURDEV SI GURDEV SI GURDEV SINGH NGH NGH NGH Present: Ms (Dr.) Amarpreet Sandhu, Advocate, for the appellants. 1. To be referred to the Reporter or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. M.M. KUMAR, J. M.M. KUMAR, J. M.M. KUMAR, J. 1. The instant appeal filed under Clause X of the Letters Patent is directed against the judgment dated 7.10.2009 rendered by the learned Single Judge holding that the writ petitioner- respondent is entitled to disability pension because at the time of boarding him out from service he was downgraded to medical category 'EEE' with 20% disability and was accordingly recommended for invalidation. 2. The learned Single Judge after placing reliance on three judgments of this Court or Hon'ble the Supreme Court rendered in the cases of Birbal Birbal Birbal Birbal v. v. v. v. Union of India Union of India Union of India Union of India, 2006 (3) SCT 3 , 2006 (3) SCT 3 , 2006 (3) SCT 3 , 2006 (3) SCT 319; 19; 19; 19; A.J.S. A.J.S. A.J.S. A.J.S. Chaudhary Chaudhary Chaudhary Chaudhary v. v. v. v. Union of India Union of India Union of India Union of India, 1999 (1) RSJ 778; , 1999 (1) RSJ 778; , 1999 (1) RSJ 778; , 1999 (1) RSJ 778; and Surjit Singh Surjit Singh Surjit Singh Surjit Singh v. v. v. v. The Secretary to the Government of India, Ministry of Defence The Secretary to the Government of India, Ministry of Defence The Secretary to the Government of India, Ministry of Defence The Secretary to the Government of India, Ministry of Defence, 1999 , 1999 , 1999 , 1999 (4) RSJ (4) RSJ (4) RSJ (4) RSJ, has come to the conclusion that if the disease, which might be constitutional, has not been detected at the time of entry into service nor any such note has been given in that report then it is not possible for the appellants to deny that the disease is imputable to military service. On the aforesaid rationale, the learned Single L.P.A. No. 765 of 2011 (O&M) 2 Judge has granted the benefit of disability pension to the writ petitioner-respondent. 3. Dr. Amarpreet Sandhu, learned counsel for the appellants has made an attempt to persuade us to accept her contention that the opinion of the Medical Board that the disease was constitutional in nature and would, thus, not qualify for disability pension. However, we are unable to accept the same in view of the overwhelming authority laid down in the aforesaid judgments. The rationale of the aforesaid judgments as culled out by the learned Single Judge is that if a person enters service and was healthy at the time without suffering from any disease then any disease which is suffered by him during service would be imputable to military service. Moreover, there was no note given by the authorities when he was medically examined before entering into service showing that he was suffering from any disease. Therefore, presumption is inferable in favour of the writ petitioner- respondent. 4. The appeal does not merit admission for the aforementioned reasons. Accordingly, the appeal fails and the same is dismissed. 5. In view of the fact that the appeal has been dismissed on merit, we do not wish to pass any order on the application filed under Section 5 of the Limitation Act seeking condonation of 236 days delay. However, the delay of 187 days in re-filing the appeal is condoned. (M.M. KUMAR) (M.M. KUMAR) (M.M. KUMAR) (M.M. KUMAR) JUDGE JUDGE JUDGE JUDGE (GURDEV SINGH GURDEV SINGH GURDEV SINGH GURDEV SINGH) L.P.A. No. 765 of 2011 (O&M) 3 May 3 May 3 May 3 May 3, 2011 , 2011 , 2011 , 2011 JUDGE JUDGE JUDGE JUDGE Pkapoor