IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No.122 of 1999 Date of decision: 01.7.2009 Union of India and another -----Appellant Vs. No.727213 Ex Airman, B.S.Rana Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. Anil Rathee, Central Govt.Standing Counsel for the appellant. None for the respondent. Adarsh Kumar Goel,J. 1. This appeal has been filed under Clause X of the Letters Patent against judgment of the learned Single Judge dated 18.11.1998, directing payment of disability pension to the extent of 40%. 2. The contesting respondent was enrolled as an Airman in Indian Air Force on 1.2.1988. After completing his training, he was subjected to medical examination and was found fit. He remained serving the Air Force for more than three years. Thereafter, while posted in Assam, he was sent for treatment of “non-organic psychosis”. The disease was found to be incurable. He was discharged from service after total service of six years, in the year 1994. He made a claim for LPA No.122 of 1999 disability pension on the ground that disability was attributable to harsh conditions under which he had to serve. Though, the Commanding Officer recommended his case, the CGDA (Pension) rejected the same on the ground that the disease was not attributable to Air Force Service. Appeal against the said order was dismissed. 3. The petitioner preferred a writ petition. Reliance was placed on Regulation 153 of the Pension Regulations applicable to Air Force service, which provides for disability pension to a person invalidated out of service on account of more than 20% disability attributable to Air Force Service. This claim was contested relying upon the opinion of the Medical Board. 4. Learned Single Judge allowed the writ petition holding that once the petitioner was found to be fit at the time of entry into service, presumption was that disease was attributable to the Air Force service unless it could be shown that the disease could not be detected on medical examination at the time of recruitment. In the present case, the disease was detected for the first time in the year 1990 during the service. Accordingly, the writ petition was allowed and direction to pay disability pension to the extent of disability which was assessed at 40%, was given. 5. We have heard learned counsel for the appellants. 6. Learned counsel for the appellants submitted that opinion of Medical Board must be accepted and is not liable to be interfered with by this Court. He relies upon judgment of the Hon’ble Supreme 2 LPA No.122 of 1999 Court in Union of India and others v. Surinder Singh Rathore, (2008) 5 SCC 747. 7. We are unable to accept the submission. There is no dispute with the proposition that Medical Board’s opinion being expert opinion has to be given due weight but in the present case, there is no tangible basis for the opinion that the disease detected was not attributable to Air Force Service. The rules clearly provide that unless it could be held that the disease could not be detected at the time of recruitment, the same will be presumed to be attributable to Air Force service. 8. In a recent judgment in Union of India and others v. Ex. Sepoy Ranjit Singh, LPA No.547 of 2001, decided on 11.2.2009, the matter was considered by this Court and it was held that if the circumstances give rise to an inference that disease was attributable to the Air Force Service, negative opinion of the Medical Board given without any basis could not be treated as conclusive. After referring to judgments in Union of India and another v. Baljit Singh, 1996(2) SCC 316, Controller of Defence Accounts (Pension) and Others v. S.Balachandran Nair, AIR 2005 SC 4391, Navin Chandra v. Union of India and others, 2006(4) SCT 626 (Delhi), Union of India and others v. Hemant Kumar, 2009(1) RSJ 196 (MP) and Joginder Singh v. Union of India and others, CWP No.7323 of 2007, decided by this Court on 4.12.2007, it was observed:- 3 LPA No.122 of 1999 “14. We are of the view that the judgments of the Hon’ble Supreme Court in Baljit Singh’s case and S.Balachandra Nair’s case (supra) are distinguishable on facts. In the present case it has been admitted in the written statement (that) there was an episode of Generalised Tonic Clonic Seizure on 11.10.1998 when the petitioner was in service and he was given treatment which continued thereafter. In the opinion of the Medical Board Annexure RA, there is no reason given as to how the said illness did not relate to the disability in question. The disability is clearly relatable to the episode which is duly admitted in the written statement. It may have been a different matter if such an episode had not happened. The opinion of the medical Board in the present case was thus arbitrary in ignoring the admitted incident. 15. In Naveen Chander (supra), it was held that the opinion of Medical Board must be self contained and well reasoned and supported by documentary proof and therefore, the opinion that the disease was not attributable to the military service was without any basis. Moreover, para 14 of 1982 Rules provides that if a person is fit at the time of entry into service, there will be presumption that the disease is due to military service though on facts it could be established that the disability existed prior to entry into service and the mere fact that such disease was not detected at the time of entry into service will not be conclusive. Similar view has been taken by this Court in Joginder Singh and Ex Sepoy Bhola Ram (supra) and the Madhya Pradesh High Court in Hemant Kumar (supra). 4 LPA No.122 of 1999 16. In view of the above, no fault can be found with the finding recorded by the learned Single Judge that the disability of the petitioner was attributable to the military service and he was entitled to disability pension from the date of his discharge from the military service.” The present case is fully covered by the said decision. While admitting the appeal on 30.9.1999, no stay was granted. Pension must have already been paid. 9. Judgment of the Hon’ble Supreme Court in Surinder Singh Rathore (supra) is on its own facts. 10. In view of above, we do not find any ground to interfere with the view taken by the learned Single Judge. 11. The appeal is dismissed. (Adarsh Kumar Goel) Judge July 1, 2009 (Daya Chaudhary) ‘gs’ Judge 5