Dharamvir Singn vs Union Of India & Ors

4. The factual matrix of the case is as follows:

5. The appellant approached the High Court of Himachal Pradesh in Civil Writ Petition No.660 of 2004 seeking a direction to respondents to grant disability pension with effect from 1st April, 1994. Learned Single Judge by judgment dated 20th May, 2004 on observing that there was nothing on record to show that the appellant was suffering from any disease at the time of his initial recruitment in the Indian Army held that the disease would be deemed to be attributable to or aggravated by the Army services. Therefore, in terms of Regulation 173 of Pension Regulations for the Army, 1961 the appellant is eligible for disability pension. Learned Single Judge allowed the writ petition and directed the respondents to grant disability pension to the appellant as per rules with effect from the date he was invalidated out of service and to pay the entire arrears of pension within three months else they shall be liable to pay interest on such arrears at the rate of 9% per annum.

Consequently, in view of the observation made hereinabove, the Letters Patent Appeal is allowed. The judgment of learned Single Judge is set aside. No costs.”

Rule 14(b)- If medical authority holds, for reasons to be stated, that the disease although present at the time of enrolment could not have been detected on medical examination prior to acceptance for service, the disease, will not be deemed to have arisen during service. In case where it is established that the military service did not contribute to the onset or adversely affect the course disease, entitlement for casualty pensionary award will not be conceded even if the disease has arisen during service.

However, if medical opinion holds, for reasons tobe 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.

(d).The question, whether a disability or death resulting from disease is attributable to or aggravated by service or not, will be decided as regards its medical aspects by a Medical Board or by the medical officer who signs the Death Certificate. The Medical Board/Medical Officer will specify reasons for their/his opinion. The opinion of the Medical Board/Medical Officers,in so far as it relates to the actual cause of the disability or death and the circumstances in which it originated will be regarded as final. The question whether the cause and the attendant circumstances can be accepted as attributable to/aggravated by service for the purpose of pensionary benefits will, however, be decided by the pension sanctioning authority.”

29. We, accordingly, answer both the questions in affirmative in favour of the appellant and against the respondents.

32. In spite of the aforesaid provisions, the Pension Sanctioning Authority failed to notice that the Medical Board had not given any reason in support of its opinion, particularly when there is no note of such disease or disability available in the service record of the appellant at the time of acceptance for military service. Without going through the aforesaid facts the Pension Sanctioning Authority mechanically passed the impugned order of rejection based on the report of the Medical Board. As per Rules 5 and 9 of 'Entitlement Rules for Casualty Pensionary Awards, 1982', the appellant is entitled for presumption and benefit of presumption in his favour. In absence of any evidence on record to show that the appellant was suffering from "Genrealised seizure (Epilepsy)” at the time of acceptance of his service, it will be presumed that the appellant was in sound physical and mental condition at the time of entering the service and deterioration in his health has taken place due to service.

34. In view of the finding as recorded above, we have no option but to set aside the impugned order passed by the Division Bench dated 31st July, 2009 in LPA No.26 of 2004 and uphold the decision of the learned Single Judge dated 20th May, 2004. The impugned order is set aside and accordingly the appeal is allowed. The respondents are directed to pay the appellant the benefit in terms of the order passed by the learned Single Judge in accordance with law within three months if not yet paid, else they shall be liable to pay interest as per order passed by the learned Single Judge. No costs.