IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 742 of 2003 along with connected CWPs No. 121 of 2005, 277 of 2006, 212 of 2006 & 947 of 2005. Judgment reserved on : 19.12.2006 Date of Decision: January 9, 2007 1. CWP No. 742/03. Santosh Kumar …Petitioner Versus. Union of India & ors. .. Respondents. For the Petitioner(s) : Mr. Bhuvnesh Sharma, Advocate. For the Respondent(s): Mr. Sandeep Sharma, Assistant Solicitor General of India. 2. CWP No. 121/05. Madan Lal Kaushal …Petitioner Versus. Union of India & ors. .. Respondents. For the Petitioner(s) : Mr. Ajay Sharma, Advocate. For the Respondent(s): Mr. Anup Rattan, Central Government Standing Counsel. 3. CWP No277/06 Dhungal …Petitioner Versus. Union of India & ors. .. Respondents. For the Petitioner(s) : Mr. G.R.Palsra, Advocate. 2 For the Respondent(s): Mr. Janesh Mahajan, Central Government Standing Counsel. 4.. CWP No. 212/06 Bakshi Ram …Petitioner Versus. Union of India & ors. .. Respondents. For the Petitioner(s) : Mr. O.P.Thakur, Advocate with Ms.Salochana, Advocate. For the Respondent(s): Mr. Ashwani Pathak Central Government Standing Counsel. 5. CWP No. 947/05. Chinta Devi …Petitioner Versus. Union of India & ors. .. Respondents. For the Petitioner(s) : Mr. Sanjiv Kuthiala, Advocate. For the Respondent(s): Mr. Anup Rattan, Central Government Standing Counsel. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for Reporting? For the Petitioners): ( As above) For the Respondent(s): 3 Deepak Gupta, J. This judgment shall dispose of a bunch of writ petitions. All the petitioners are ex-servicemen or kin of ex-servicemen and claimed disability pension as per Pension Regulations for the Army. Their claims have been rejected by the respondents on the ground that the cases of the petitioners do not fall within the purview of the Pension Regulations. To appreciate the rival contentions of the parties, it would be necessary to refer to certain provisions of the Pension Regulations for the Army. Regulation 173 deals with the grant of disability pension which reads as follows:- “173. Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 per cent or over. The question whether a disability is attributable to or aggravated by military service shall be determined under the rules in Appendix II.” Regulation 213 relates to grant of special family pension in case of death which was caused by or due to some wound 4 injury or disease attributable to or aggravated by Army service. Regulation 213 reads as follows:- “213. A special family pension may be granted to the family of an individual if his death was due to or hastened by – (a) a wound, injury or disease which was attributable to military service; or (b) The aggravation by military service of a wound, injury or disease which existed before or arose during military service.” Regulation 173 quoted hereinabove lays down that the question whether disability attributable to or aggravated by military service has to be determined as per rules in Appendix-II. Appendix-II contains the entitlement rules with regard to disability. The relevant rules are Rules 2,3,4 and 7, which read as follows:- “2. Disablement or death shall be accepted as due to military service provided it is certified that:- (a) the disablement is due to a wound, injury or disease which – i) is attributable to military service; or ii) existed before or arose during military service and has been and remains aggravated thereby; b) the death was due to or hastened by – i) a wound, injury or disease which was attributable to military service; or 5 ii) the aggravation by military service of a wound, injury or disease which existed before or arose during military service. 3. There must be a causal connection between disablement and military service for attributability or aggravation to be conceded. 4. In deciding on the issue of entitlement all the evidence both direct and circumstantial will be taken into account and the benefit of reasonable doubt will be given to the claimant. This benefit will be given more liberally to the claimant in field service cases. 7. In respect of diseases, the following rules will be observed:- (a) Cases, in which it is established that conditions of military service did not determine or contribute to the onset of the 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 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. ( 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 6 of the disease and that the conditions were due to the circumstances of duty in military service. (d) In considering whether a particular disease is due to military service, it is necessary to relate the established facts, in the aetiology of the disease, and of its normal development, to the effect that conditions of service e.g. exposure, stress, climate, etc. may have had on its manifestation. Regard must also be had to the time factor. (i) Common diseases known to be affected by exposure to weather – Diseases such as Bronchitis, Rheumatism and Nephritis – indeed most diseases of the respiratory system, joints and kidneys – are affected by climatic conditions. The period and the conditions of service at any particular place should be taken into account in determining causal connection with service. (ii). Common diseases known to be affected by stress and strain – This should be decided with due reference to the nature of the duties and individual has had to perform in military service. It may be that in some cases the individual had been engaged on sedentary duties when they will normally not qualify. (iii) Diseases endemic to certain areas – Diseases such as Malaria, Kalazar, Filariasis, Dysentery, Cholera, etc. are endemic in certain areas. These diseases may also be introduced by movements of infected 7 persons. In determining casual connection with service it will have to be established that the conditions of military service exposed the individual to the infection as a result of which he contracted the disease. Where there is medical evidence of the contraction of the diseases either prior to entry into service or while off duty or on leave or desertion or unauthorized absence, etc., attributability should not be accepted unless the disease occurs within the incubation period. (iv). Diseases due to infections in service – Entitlement to pension will be admitted if the exposure to infection arose from the circumstances of the member’s service. (v) Disease known to be affected by dietary compulsions – The compulsions of service would also cover such cases as gastric disorders, e.g. gastritis, gastric and duodenal ulcers, where it is established that the member was unable to follow a dietary regime required for his condition. The effect of service in such cases will be limited essentially to the question of aggravation of a pre-existing constitutional condition. This will not normally apply to individuals in sedentary occupation. (vi). Diseases which rule their course independently of external circumstances- There are certain diseases which would have 8 run the same course whether the individual had been in the Forces or not, e.g. Leukemia, Hodgkin’s disease, etc. (see Annexure sub- para (E)). Such cases will not be accepted as aggravated by service unless it is clear that owning to exigencies of service the man did not receive treatment of a satisfactory character and standard or such treatment was so delayed as to be less effective than it should have been. (vii). Venereal Diseases- (1) Venereal diseases will normally be rejected but a sequela of the disease may sometimes be accepted as aggravated by service. In the case of such disease contracted during service, grounds for acceptance will rarely be found unless the member after treatment had returned to full duty and had been subjected to such strain as would produce one of the after effects of the disease sooner than would have normally been the case. The strain must have been of an exceptional nature. (2) In the case of disease contracted before service if the member had reached an age when such a manifestation could be accepted, entitlement will not be conceded. On the other than, if the later manifestation had been produced or 9 hastened by the strain of service in which case there should be evidence that the strain was of an exceptional nature, entitlement may be considered on the basis of aggravation. (3) In the case of disease due to heredity, entitlement must be determined as in para (2) above. (4) The above refers only to late manifestations or sequela of venereal disease as Neuro-Syphilis or Cardio- vascular Syphilis. (viii). Invalidation on account of indulgence in drugs or drinks – Entitlement shall not be conceded if the disability or death on which the claim is based, resulted from indulgence in drugs or drinks which was within one’s own control.” Annexure to the rules classifies different diseases in various categories. Category “A” relates to diseases affected by climatic conditions. Category “B” relates to disease affected by stress and strain. Category “C” relates to diseases affected by dietary compulsions. Category “D” relates to diseases affected by training, marching, etc. Category “E” relates to diseases not normally affected by service. These categories of 10 diseases can be and related to the various types of diseases referred to in sub rule (d) of Rule 7 supra. Regulation 173 clearly provides that any person who is invalided from service on account of disability and whose disability is assessed at 20% or over is qualified for grant of disability pension. However, the eligibility has to be determined in terms of the eligibility rules forming part of the Appendix. Rule 2 provides that disablement or death shall be accepted as due to military service, if it is provided that the disablement is due to a wound, injury or disease which is attributable to military service or if existing before or arose during military service and has been and remains aggravated by military service. Rule 3 provides that there must be a causal connection between disablement and military service for attributability or aggravation to be conceded. Rule 4 provides that while considering the evidence, the benefit of reasonable doubt must be given to the claimant and this benefit is to be given even more liberally in the cases of those claimants who were serving in field areas. Rule 7 which relates to diseases, provides that even in cases where the military service did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, the claimant shall be entitled 11 to disability pension on the basis of aggravation. Sub rule (b) provides that if at the time of the individual enrolment in military service, no note has been made that the recruit is suffering from any disease then the presumption can be raised that the disease has arisen during the course of military service. However, sub rule (c) provides that even if a disease is accepted as having arisen during the military service, it must also be established that the conditions of military service determined or contributed to the onset of the disease. In other words, what it provides is that the disease is in some way attributable to or connected to the military service. Sub rule (d) gives example of various diseases and the injuries to be taken into consideration while determining the factor whether the disease is attributable to or aggravated by military service or not. A Division Bench of this Court in Piar Chand v. Union of India and another, 1995 (2) S.L.J.1230 has dealt with the question with regard to the grant of disability pension. In that case, the petitioner was invalided from military service on medical grounds and the claim of the petitioner for grant of disability pension was refused. The court came to the conclusion on the material placed before it that the disease had not only occurred during military service but also was 12 attributable to military service. It would also be pertinent to mention that while taking this view, the Division Bench relied upon an earlier judgment of the Court in CWP No. 382 of 1992, Ajit Kumar vs. Union of India, in which the court had held as follows:- “ Rule 2, which has been noticed above, is the relevant rule for deciding the entitlement of the petitioner and all other rules referred to during the submissions of the parties only indicate the method of reaching conclusion in relation thereto. Rule 2 gives the clear indication that disablement which may not be directly due to military service is also accepted as due to military service provided certain conditions mentioned in this rule are satisfied. One of the conditions is that the disablement should be attributable to military service. But this is not the only condition. Even those cases where the disablement may not be attributable to military service, may also be brought within the purview of this rule if the condition mentioned in clause (a) (ii) remains satisfied. This clause deals with those diseases which arose during military service and have been or remain aggravated thereby. This is an independent clause by itself and, therefore, it is not necessary to hold that the disease should be attributable to military service. If that was so, there would be no necessity of this clause and clause (i) by itself would have been enough. It is well settled 13 that while interpreting a rule, efforts must be made to give meaning to such and every word used therein. Then the word ‘or’ appearing between clauses (i) and (ii) clearly indicates that these situations are in the alternative and, therefore, even if one of them is satisfied, the claimant would be entitled to the benefit thereof. In this view of the matter, this court would not agree with the learned Central Government Standing Counsel in regard to the requirement of attributability to military service for purpose of sub clause (ii) of this rule. The question, however, is whether the disease suffered by the petitioner remains aggravated by his military service. Rule 3, no doubt, requires a decision on this question to be based on causal connection would be established. But the causal connection is not between the particular work done by the petitioner, but with his service with the military as such and, therefore, the connection will have to be established not with any particular duty performed by the petitioner but with his service as such and while reaching a decision on this question benefit of doubt, if any, would be given to the claimant –petitioner in view of rule 4 of these rules.” The Court after considering a number of authorities, held as follows:- 14 “Totality of the circumstances which included report of Doctors, opinion of military authorities and appreciation of the fact of aggravation of disease in the background of military service as per opinion expressed by various experts at first instance bring the case of the petitioner within the ambit of Pension Regulations and Rules described above. Otherwise also, provision of Rule 4 on the basis of the circumstances present in this case cannot be ignored at all inasmuch as the benefit of reasonable doubt if at all appearing shall be taken in favour of the claimant. That aspect of the matter also entitled the petitioner for the disablement pension.” The apex Court has considered this question in Union of India and another v. Baljit Singh, (1996) 11 SCC 315. The apex Court held as follows:- “It is seen that various criteria have been prescribed in the guidelines under the Rules as to when the disease or injury is attributable to the military service. It is seen that under Rule 173 disability pension would be computed only when disability has occurred due to a wound, injury or disease which is attributable to military service or existed before or arose during military service and has been and remains aggravated during the military service. If these conditions are satisfied, necessarily the incumbent is entitled to the 15 disability pension. This made amply clear from clauses (a) to (d) of para 7 which contemplates that in respect of a disease the Rules enumerated there-under require to be observed. Clause (c) provides that 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 disease and that the conditions were due to the circumstances of duty in military service. Unless these conditions are satisfied, it cannot be said that the sustenance of injury per se is on account of military service. In view of the report of the Medical Board of doctors, it is not due to military service. The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service. In each case, when a disability pension is sought for and made a claim, it must be affirmatively established, as a fact, as to whether the injury sustained was due to military service or was aggravated which contributed to invalidation for the military service. Accordingly, we are of the view that the High Court was not totally correct in reaching that conclusion. The apex Court in Union of India & others v. Dhir Singh China, Colonel (2003) 2 SCC 382 again considered in detail the question with regard to entitlement to disability pension. The said case relates to Regulation 53 which deals with granting 16 disability pension to officers. Regulations 53 and 173 are otherwise couched in similar language. The apex Court held thus:- “7. That leaves for consideration Regulation 53. The said Regulation provides that on an officer being compulsory retired on account of age or on completion of tenure, if suffering on retirement from a disability attributable to or aggravated by military service and recorded by service medical authority, he may be granted, in addition to retiring pension, a disability elements as if he had been retired on account of disability. It is not in dispute that the respondent was compulsorily retired on attaining the age of superannuation. The question, therefore, which arises for consideration is whether he was suffering, on retirement, from a disability attributable to or aggravated by military service and recorded by service medical authority. We have already referred to the opinion of the Medical Board which found that the two disabilities from which the respondent was suffering were not attributable to or aggravated by military service. Clearly, therefore, the opinion of the Medical Board ruled out the applicability of Regulation 53 to the case of the respondent. The diseases from which he was suffering were not found to be attributable to or aggravated by military service and were in the nature of constitutional diseases. Such being the opinion of the Medical Board, in our view the 17 respondent can derive no benefit from Regulation 53. The opinion of the Medical Board has not been assailed in this proceeding and, therefore, must be accepted.” The same question also engaged the attention of this court in Chamel Singh versus. Union of India and others, Latest HLJ 2004 HP 671 wherein a Single Judge of this Court held as follows :- “In cases where a person had joined Army service and was not found suffering from any disease at the time of his initial recruitment and any disease having been mentioned in the service record of such a recruitee at the time of his enrolment, claim of disability pension had been generally allowed.” With due respect to the learned Single Judge, we are constrained to observe that this observation may not be correct. In case there is no note at the time of joining service that the person enrolled is suffering from any disease and he is invalided from service on medical ground at a later stage, the only presumption, which can be raised, is that the disease has arisen during the course of military service. As pointed out by the apex Court not only has it to be proved that the disease arose during military service but it has also to be shown that the same was attributable to or aggravated by military service. 18 It must also be shown that there is a causal connection between the disablement and the military service. The apex Court again dealt with this question in Controller of Defence Accounts (Pension) and others v. S.Balachandran Nair, (2005) 13 SCC 128. The apex Court was dealing with a case of anxiety neorosis in which the medical board had held that the disease was constitutional in nature unconnected with service conditions. The apex Court after referring to Regulation 173 and Rules 2, 3 and 4 of the Appendix-II as well as Regulation 423 and after referring to the authorities cited above has held as follows:- “12. In view of the legal position referred to above and the fact that the Medical Board’s opinion was clearly to the effect that the illness suffered by the respondent was not attributable to the military service, both the learned Single Judge and the Division Bench were not justified in their respective conclusions. The respondent is not entitled to disability pension.” After giving our careful consideration to the rules and regulations and the authorities of the apex Court, we hold that to be entitled to disability pension, it must be established that the disability has occurred due to a wound injury or disease which is attributable to military service or existed before or 19 arose during military service and has been and remains aggravated thereby. The apex Court has clearly held that clause (c ) is not disjunctive and has to be read along with clauses (a) and (b) and, therefore, even if a disease is accepted as having arisen during service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that conditions were due to the circumstances of duty in military service. The apex Court in Dhir Singh China’s case (supra) also held that primacy has to be given to the report of the medical board. We are, therefore, of the opinion that the Court sitting in writ jurisdiction cannot lightly interfere with the opinion of the medical board. This is not to say that the Court is bound by the opinion of the Medical Board. However, the said opinion being an opinion/finding of an expert body should not be unsettled in writ jurisdiction unless there are clear cut grounds for doing so. We also must observe that these rules provide that if two interpretations are possible, the interpretation favourable to the claimant should be taken. If the army personnel were in field service then the benefit should be given even more liberally. It is in this light of the observations that we shall not deal with the individual cases. 20 1. CWP No. 742/03: In this case, the petitioner Santosh Kumar was enrolled in the Indian Army on 18.10.1982. On 12.11.1988, he was admitted in the military hospital at Amritsar and was transferred from there to military hospital at Jalandhar on 15.11.1988. He was discharged on 17.1.1989 and diagnosed as a patient of Schizophrenia. He was granted sick leave upto 14.3.1989. He was again