1. Through the instant writ petition, the petitioner herein- Union of India, prays for the setting aside of the order dated 14.02.2023 (Annexure P-2), as passed by the learned Armed Forces Tribunal concerned, wherebys the claim of respondent No. 1 for the grant of disability pension was allowed.

Factual Background

2. The respondent enrolled in the Artillery on 22.03.1982 and was discharged from the service on 31.07.2000 at his own request after rendering 18 years, 4 months and 10 days of qualifying service, for which he was granted service pension for life. Thereafter, he got re- enrolled in Defence Service Corps on 03.01.2005 and got discharged on 1 of 11 ::: Downloaded on - 21-12-2024 14:23:01 ::: Neutral Citation No:=2024:PHHC:169402-DB CWP-15455-2024 2- 31.01.2020. During the course of his extension period of service, he was placed in low medical category P3 (T-24) w.e.f. 30.10.2014 and thereafter placed in permanent low medical category P2 (P) w.e.f. 16.04.2015 by the subsequent review medical boards which assessed his disability for the diagnosis "Primary Hypertension" @30% for life and held to be neither attributable to nor aggravated by military service.

3. The disability element claim of the respondent was rejected by the Adjudicating Authority vide letter dated 12.05.2020, thus on the finding of the Release Medical Board.

4. The respondent No. 1 had filed First appeal on 11.11.2021 and without waiting for the outcome of the same, respondent No.1 filed O.A. No.953 of 2022, before the learned Armed Forces Tribunal concerned, wherebys he cast a challenge to the afore said rejection order. The said O.A., became allowed vide order dated 14.02.2023. The operative part of the said order is extracted hereinafter.

10. "For all the reasons, hereinabove, this application succeeds and the same is accordingly allowed. The order under challenge is accordingly set aside and quashed. The applicant is held entitled to disability element of disability pension @50% as against 30% for life w.e.f. 01.02.2020 on being rounded off as per the ratio of the judgment of the Supreme Court in 10.12.2014. the due and admissible arrears by accordingly calculated released in favour of the applicant within a period of three months from the receipt of certified copy of this order by learned Senior Panel Counsel/OIC Legal Cell, failing which together with interest @8% from the date of this order".

5. Feeling aggrieved from the aforesaid order as passed upon the O.A. (supra), by the learned Armed Forces Tribunal concerned, the petitioner-Union of India has filed thereagainst the instant writ petition before this Court.

Inferences of this Court.

6. Before proceeding to make an effective adjudication upon the present writ petition, a useful assistance for determining whether the befallment of any disease vis-à-vis any member of the defence personnel, but post his being enrolled in the army, despite at the initial stage, upon his becoming enlisted, as a member of the combatant defence establishment, rather the same remaining undetected, yet the apposite eruption, thus post enlistment hence being construable to be either congenital or being construable to become aggravated or being attributable to military service, thus is acquired, from, the principles set forth in the judgment rendered by the Hon'ble Apex Court, in case titled as Dharamvir Singh Vs. Union of India , reported in (2013) 7 SCC

316. The relevant paragraphs of the said verdict are extracted hereinafter.

29. A conjoint reading of various provisions, reproduced above, makes it clear that:

from service on medical grounds any deterioration in his health is to be presumed due to service. [Rule 5 r/w Rule 14(b)].

(iii) Onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for non-entitlement is with the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally. (Rule 9).

(iv) If a disease is accepted to have been 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. [Rule 14(c)].

(v) If no note of any disability or disease was made at the time of individual's acceptance for military service, a disease which has led to an individual's discharge or death will be deemed to have arisen in service. [14(b)].

(vi) If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and that disease will not be deemed to have arisen during service, the Medical Board is required to state the reasons. [14(b)]; and

(vii) It is mandatory for the Medical Board to follow the guidelines laid down in Chapter-II of the "Guide to Medical (Military Pension), 2002 - "Entitlement : General Principles", including paragraph 7,8 and 9 as referred to above .

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

7. An incisive reading(s) of the above extracted principles, though pointedly declare, that when a disability becomes entailed upon any member of the combatant defence establishment, and which is to the extent of 20 % or over, thereupon, though any such disabled member is required to be invalided from the Army, but yet he is required to be assigned the benefit of disability pension.

8. Nonetheless, the assignment of disability pension to any member of the combatant defence establishment, who becomes entailed with a disability in a quantum of 20 % or more, but imperatively requires a declaration from the Medical Board, rather candidly 4 of 11 ::: Downloaded on - 21-12-2024 14:23:01 ::: Neutral Citation No:=2024:PHHC:169402-DB CWP-15455-2024 5- pronouncing that the said attained disability being attributable to or becoming aggravated by military service. The said declaration becomes enjoined by the "Entitlement Rules for Casualty Pensionary Awards, 1982" of Appendix-II (Regulation 173).

9. Furthermore, though thereins a presumption is assigned vis-à-vis the sound physical and mental health of any member of the defence establishment concerned, especially when at the stage of his becoming enrolled, there is no note or record about his becoming beset with any disease. Moreover, though thereins there is also a further presumption, that when any deterioration theretos, thus occurs subsequently, therebys the said happening of deterioration(s) or onsettings of any disease, rather is to be presumed to be a sequel of his rendering service as a member of the defence establishment. Imperatively, the onus for proving the non endowments qua benefits (supra) vis-à-vis the concerned, but is rested on the employer, and in case, the said onus remains un-discharged, thereupon, the claimant becomes entitled to receive disability pension. Moreover, all the facts and circumstances attendant to the rendition of service by the concerned, are to be closely scrutinized, thus for declaring whether the onset of any disease vis-à-vis the concerned, is a sequel qua renditions of military service and/or the same being aggravated by or being attributable to military service.

10. Be that as it may, thereins becomes also set forth a further principle(s) that yet there can be denial of disability pension to the concerned, but only upon :

a) At the time of acceptance of the concerned in military service, some notings becoming recorded by the Medical Board vis-a-vis his being beset with a disease which however, becomes concluded to be yet not rendering him unfit to become enlisted.

b) Any further deterioration thereofs, may also subsequently become concluded by the Medical Board, to not arise from rendition of military service nor being attributable to military service, rather the same being a congenital disease.

11. Further, if the medical opinion holds that the disease could not have been detected on medical examination of the concerned being made, thus prior to his becoming enlisted in service, thereupons, the same will not be deemed to have arisen during service, yet in the situation (supra), the Medical Board is required to state the reasons for so concluding.

12. Moreover, it is also declared in supra, that it is mandatory for the Medical Board to follow the guidelines laid down in Chapter-II of the "Guide to Medical (Military Pension), 2002 - "Entitlement :

13. Therefore, it has to be now determined whether in terms of the above principles, whether at the time of enlistment of the present respondent in the Army, thus after a preliminary medical examination being made vis-a-vis his health, thus a note became recorded about some disease besetting him and/or whether some note became 6 of 11 ::: Downloaded on - 21-12-2024 14:23:01 ::: Neutral Citation No:=2024:PHHC:169402-DB CWP-15455-2024 7- appended that the said disease was in a dormant stage. Moreover, it is also required to be determined, from the facts at hand, whether there is a causal nexus inter-se the eruption of the disease, and/or the onsettings thereofs, on to his person, thus post the enrollment of the present respondent taking place, vis-a-vis the active renditions by him of military service, wherebys, this Court may conclude that the onset of the disease but rather was a sequel of his rendering service in the Army and as such was attributable or became aggravated by his rendering military service.

14. In addition, it is also required to be gathered from the records, whether the Medical Board, did initially proceed to make a detailed incisive antecedental check, particularly appertaining to the advent of the disease, through employments of State of Art medical techniques, thus unveiling the block chain genetic connection, wherefroms, rather the disease became sourced. Moreover, if the said employment fails. Resultantly, therebys it may become concluded qua eruptions thereof, thus subsequent to the apposite enlistment taking place, rather was not congenital but owed its origin to rendition of military service besides it being attributable to or becoming aggravated by performance of military service. Contrarily, if the supra employed techniques at the stage of apposite enlistment taking place, thus by the Medical Board concerned, leads to a conclusion, that there are rather dormant incidences of any disease, but yet the said dormant disease not prohibiting the enlistment of any personnel in the army, navy or air force. Resultantly the subsequent active detection/eruption thereofs, 7 of 11 ::: Downloaded on - 21-12-2024 14:23:01 ::: Neutral Citation No:=2024:PHHC:169402-DB CWP-15455-2024 8- during the course of rendition of military service, but would naturally lead to a well conclusion by the Medical Board, that its active eruption but became sourced from an effective causal genetic connection wherebys there would be denial of disability pension.

15. However, now in the said endeavour, this Court is required to be extracting the contents of the opinion, as became recorded by the release medical board. In the said regard relevant extract of paragraph No. 8 of the impugned order, is extracted hereinafter:

16. A reading of the records reveals that at the time of the apposite enlistment taking place rather no note became made in terms of the principles (supra) declared by the Hon'ble Apex Court in case titled as Dharamvir Singh Vs. Union of India (supra) by the Medical Board, that some disease which however, did not forbid the present respondent, to become enlisted in the Army, did make its preliminary onsettings. If so, the declaration of law in judgment (supra) that therebys there is a presumption that the incurring of the said disease 8 of 11 ::: Downloaded on - 21-12-2024 14:23:01 ::: Neutral Citation No:=2024:PHHC:169402-DB CWP-15455-2024 9- was a sequel of rendition of service, is required to be favourably endowed vis-a-vis the respondent. Though the said presumption is rebuttable but the onus to lead evidence to rebut the said presumption became cast upon the petitioner. However, the said cast evidence adducing discharging onus vis-a-vis the respondent, rather for cogently rebutting the said presumption, but naturally also did cast an onerous duty also upon the Medical Board, to engage itself in the endeavour of unearthing, through employments of the State of Art block chain genetic causal connection technique(s), wherebys it may became unraveled that the onsetting of the disease onto the army personnel, became sourced from antecedental genetic family history. Moreover, therebys it was also required to be stated in the medical opinion, that the disease but for a well formed reason rather was a congenital disease and became neither aggravated by nor became attributable to military service.

17. However, a reading of opinion (supra), discloses that it has been recorded in a stereo typed form and no reasons have been recorded to the extent (supra). Reiteratedly, since no evidence to rebut the presumption (supra) has been led by the petitioner, therebys, this Court is constrained to give no weightage to the opinion of the medical board, as extracted (supra). Conspicuously, therebys no credence can be assigned to the supra ill informed reason, besides therebys the onsetting of the disease cannot be said to be a sequel of antecedental genetic family history. Contrarily, it is required to be declared to arise from rendition of military service. In addition, it is required to be declared to 9 of 11 ::: Downloaded on - 21-12-2024 14:23:01 ::: Neutral Citation No:=2024:PHHC:169402-DB CWP-15455-2024 10- be attributable or becoming aggravated by rendition of military service by the present respondent.

18. Moreover, though it is stated thereins that the disease occurred while service became performed by the defence personnel rather in a peace area, but since there is no express mandate in the relevant regulations, which makes the onsettings of the disease in a peace area, to not beget a further sequel that as such, it's onsettings did not arise from the rendition of military service nor it became aggravated by rendition of the military service. In consequence, the lack of the said express mandate in the regulations, does constrain this Court to conclude, that even if the onsettings of the said disease upon the present respondent thus occurred in a peace area, thereby, the said onsettings are to be declared to become aggravated by or being attributable to rendition of military service.

19. Further, since in terms of the judgment rendered by the Apex Court, in case titled as 'Union of India Vs. Ram Avtar ', reported in 2014 SCC Online 1761, whereins, a declaration is made to the extent, that the benefit of rounding off, rather has to become endowed to the concerned. Resultantly also thereunders an indefeasible right became vested in the present respondent for his seeking qua the apposite roundings off being made in his favour.

20. Even otherwise since the declaration of law made in verdict (supra) makes the said declaration to be an expostulation of law in rem, therebys, the expostulation of law in rem, as made in verdict (supra) also makes the thereunders conferred benefits vis-a-vis the 10 of 11 ::: Downloaded on - 21-12-2024 14:23:01 ::: Neutral Citation No:=2024:PHHC:169402-DB CWP-15455-2024 11- defence personnel concerned, to, prima facie, also entitle the concerned, thus to at any time seek the granting of the endowments as made thereunders, and that too, in the fullest complement, as spelt thereunders, besides irrespective of the bar, if any, of delay and laches.

21. Therefore, the granting of the benefit of the apposite roundings off, in terms of the verdict (supra) rendered by the Tribunal concerned, also does not suffer from any illegality and is required to be upheld.

Final Order of this Court.

22. In aftermath, this Court finds no merit in the writ petition and with observations above, the same is dismissed.

23. The impugned order, as passed by the learned Tribunal concerned, is maintained and affirmed.

24. Disposed of alongwith all pending application(s), if any.

(SURESHWAR THAKUR) JUDGE (KIRTI SINGH) 12.12.2024 JUDGE Mahima Whether speaking/reasoned : Yes/No Whether reportable : Yes/No 11 of 11 ::: Downloaded on - 21-12-2024 14:23:01 :::