-1- Civil Writ Petition No.897 of 2008. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: February 04, 2008. Ranjit Singh ... Petitioner VERSUS Union of India through Secretary, Government of India, Ministry of Defence, New Delhi and others ... Respondents CORAM : HON'BLE MR. JUSTICE HEMANT GUPTA. HON'BLE MR. JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr.V.K. Sandhir, Advocate, for the petitioner. -.- MOHINDER PAL, J. Challenge in this petition filed under Articles 226/227 of the Constitution of India is to the orders rejecting the disability pension claim of the petitioner. Brief facts of the case are that the petitioner was enrolled as a Sepoy in the Indian Army on November 01, 2000. While undergoing his basic military training in the fourth week after recruitment, he developed some medical problems, for which he was referred to Military Hospital, Ramgarh Cantt. -2- Civil Writ Petition No.897 of 2008. When his condition did not improve, he was referred to Command Hospital, Lucknow on December 20, 2000. He was diagnosed to be suffering from `BICUSPID ORTIC VALVE'. The petitioner was discharged from Military Hospital, Ramgarh, on March 05, 2001. He was invalidated from military service on March 14, 2001. He was neither given service pension nor disability pension. The case of the petitioner is that he had developed the disease due to strenuous military training. The disability pension claim of the petitioner was rejected on the reasoning that the disability was neither attributable to nor aggravated in military service and that the disability was constitutional in nature and not related to service. The rejection of disability pension claim was communicated to the petitioner vide letter dated May 08, 2003 (Annexure P-5). He submitted appeal against the rejection of his disability pension, which was rejected by the Appellate committee and communication dated August 16, 2005 (Annexure P-6) in this regard was sent to him. Thereafter, the petitioner submitted second appeal (Annexure P- 7) on June 03, 2003, which was also rejected holding that the Defence Minister's Appellate Committee did not find any ground to alter the decision of the First Appellate Committee and communication informing him of the decision was sent vide dated November 29, 2006 (Annexure P-10). We have heard Mr. V.K. Sandhir, learned counsel for the petitioner and have gone through the records of the case. -3- Civil Writ Petition No.897 of 2008. While arguing before us, learned counsel for the petitioner laid emphasis on the point that at the time of entry into service, the petitioner was hale and hearty and was not suffering from any disease. He relied upon Regulation 173 of the Army Pension Regulations, 1961 (hereinafter referred to as `the Pension Regulations) and Rule 7 (b) of Appendix – II referred to in Regulation 173 and argued that in the absence of any material to show that in the opinion of the Medical Board, the disease could not be detected on medical examination, the benefit of presumption contained in first part of Rule 7 (b) of Appendix-II should be given to the petitioner. He thus argued that the disease diagnosed as `BICUSPID ORTIC VALVE', was attributable to military service. In support of his contention, the learned counsel relied upon the following judgments:- (i)Balbir Kaur v. Union of India and others, 2004 (4) Service Cases Today 576; (ii) Emna (Smt.) v. Union of India and others, 2004 (4) Service Cases Today 740; (iii) Jaipal v. Union of India, 2005 (2) Service Cases Today 646; and (iv)Ex-Recruit Jagjit Singh v. Union of India and others, 2006 (3) Service Cases Today 669. Learned counsel for the petitioner further argued that the petitioner was entitled to service element of pension -4- Civil Writ Petition No.897 of 2008. apart from disability pension and it is not open to the respondents to say that the petitioner has not completed requisite years of service. In support of this contention, he relied upon a Single Bench decision of this Court in Ex-Sepoy Nek Singh v. Union of India, 2000 (3) Service Cases Today 952. In the case of Controller of Defence Accounts (Pension) and others v. S. Balachandran Nair, 2006 (1) Services Law Reporter 51, the Apex Court, after referring to its earlier decisions in Union of India v. Baljit Singh, 1996 (1) SCC 315 and Union of India v. Dhir Singh China, Colonel (Retd.), 2003 (2) SLR 400 (SC), held that where Medical Board found that there was absence of proof of the injury/illness having been sustained due to military service or being attributable thereto, the High Court cannot direct the Government to pay disability pension. In that case, the respondent was having some kidney complications and the medical authorities found his illness as `anxiety neurosis'. After prolonged illness, the respondent was boarded out as the medical authorities were of the opinion that he became unfit for continuing in service and was put under the category of `EEE' meaning `unfit and useless' and was finally discharged from service. In the present case, the petitioner was enrolled as a Sepoy in the Indian Army on November 01,2000 and while undergoing basic military training in the fourth week after his recruitment, he developed some medical problem. He was -5- Civil Writ Petition No.897 of 2008. referred to Military Hospital, Ramgarh Cantt. However, when he did not recover from the illness, he was transferred to Command Hospital, Lucknow on December 20, 2000. The petitioner was diagnosed to be suffering from `BICUSPI9D ORTIC VALVE'. Petitioner's case was that he had developed the disease due to strenuous military training. The disability pension claim of the petitioner was rejected for the reason that his disability was of a constitutional disorder, which was neither attributable to nor aggravated by military service. The petitioner submitted appeal, which was rejected by the First Appellate Committee. Thereafter, he preferred second appeal, which was also rejected holding that the Defence Minister's Appellate Committee did not find any ground to alter the decision of the First Appellate Committee. In these circumstances, the case of the petitioner is squarely covered by the observations of the Hon'ble Supreme Court in S. Balachandran Nair's case (supra). The argument of the learned counsel for the petitioner that as the disease could not be detected on medical examination at the time of entry of the petitioner in the Army, the benefit of presumption contained in first part of Rule 7 (b) of Appendix-II should be given to the petitioner, cannot be upheld because both Rules 7 (b ) and 7 ( c ) have to be read together. Rules 7 (b) and 7 ( c ) of Appendix -II, referred to in Regulation 173 of the Pension Regulations reads as under:- “ 7 (b) A disease which has led to an -6- Civil Writ Petition No.897 of 2008. 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 sated, 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. 7 ( 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 of the disease and that the conditions were due to the circumstances of duty in military service. “ A perusal of the above provisions makes it clear that if a disease has led to the discharge of individual, it shall ordinarily be deemed to have arisen in service if no note of it was made at the time of individual's acceptance for military service. An exception, however, is carved out in Rule 7 (b) itself that if medical opinion holds for reasons to be stated that the disease could not have been detected by Medical Examination Board prior to acceptance for service, the disease would not be deemed to have arisen during service. Similarly, clause ( c ) of Rule 7 makes -7- Civil Writ Petition No.897 of 2008. the position clear 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 are due to the circumstances of duty in military service. In the instant case, there is no material placed on record by the petitioner in this regard nor it has been averred that the same was produced before the Invalidating Medical Board to show that the disease was attributable to or aggravated by military service. Another argument of the learned counsel that the petitioner was entitled to service element of pension apart from disability pension and that the same could not be denied to him on the ground that he had not completed requisite years of service, is also devoid of any force. In the instant case, the petitioner had rendered only about four and a half months military service as he was enrolled on November 01, 2000 and was invalidated from service on March 14, 2001. As such, the grant of service element of pension to him was dependent upon the opinion of the Medical Board as to whether the petitioner was entitled to disability pension or not. If the Medical Board was of the opinion that illness was attributable to military service and the petitioner was entitled to disability pension, he would also have been held entitled to service element of pension apart from disability pension. Once the petitioner is not entitled to disability pension in view of the legal position, explained above, and the ratio of the Hon'ble Supreme Court in the case -8- Civil Writ Petition No.897 of 2008. of S. Balachandran Nair's case (supra) claim of the petitioner for service element of pension cannot be accepted. For the aforesaid reasons, we do not find any merit in this writ petition and dismiss the same. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE February 04, 2008. ak