important point
Unless the disability is attributable to military service the incumbent would not be entitled to disability pension.

judgment

Dr. Arijit Pasayat, J. —

1.Leave granted.

2.Challenge in this appeal is to the judgment of a Division Bench of the Rajasthan High Court, Jodhpur Bench, dismissing the Civil Special Appeal (writ) filed by the appellants.

3.Background facts in a nutshell are as follows :

Respondent was employed as a Signal Man in the army on 5.1.1985. Sometime in October, 1991, he was admitted to the Military Hospital, Jodhpur for treatment of a disease called ‘Maculopathy (RT) Eye’. Subsequently he was referred to the Command Hospital in Pune for treatment and was later reverted back to the unit for normal duties with employability restrictions. The respondent continued to complain of diminished vision and was re-admitted to the Military Hospital, Jodhpur. Since he was not responding to the treatment, he was referred to the Release Medical Board.

On 1.5.1993, said Board completed the said investigation and recommended that the respondent be released from service in medical category and CEE (permanent) which is lower than the category “AYE” due to the aforesaid disease. The disability of the respondent was assessed as 30% for two years and considered as neither attributable to nor aggravated by military service. The Board’s proceedings were also approved by the competent authority on 17th May, 1993. The respondent was discharged from service with effect from 31.7.1993 in terms of Rule 13 of Army Rules, 1954 (in short the ‘Rules’). Thereafter he was granted a sum of Rs.9,350/- and Rs.7,425/-on account of invalid gratuity and death cum retirement gratuity respectively. But prayer of the respondent for grant of disability pension was rejected on the ground that the disease from which the respondent suffered was neither attributable to nor aggravated by the military service. This information was based on the information of the Release Medical Board as per the provisions of Rule 173 of the Pension Regulations for the Army (in short ‘Pension Regulations’) read with Rule 2 of Appendix II and Regulation 423 of Medical Service of Armed Force Regulation 1983.

An appeal was preferred by the respondent which was forwarded to the Ministry of Defence. The appeal was rejected upholding the view of CCDA (Pension) as communicated to the respondent. Thereafter a writ petition was filed before the High Court which was numbered as Writ Petition No. 2597 of 1996. By order dated 16th February, 2005, the said Writ Petition was decided directing the present appellants to grant the respondent disability pension on the ground that the controversy was squarely covered by an earlier decision rendered by the High Court in SB Civil Writ No. 1083 of 2001. Order of learned Single Judge was challenged by filing a Civil Special appeal. By order dated 2.1.2006, the appeal was rejected. The present appeal by special leave has been filed by the appellants.

Learned counsel for the appellants submitted that the factual scenario has not been appreciated by the learned Single Judge and the Division Bench in the proper perspective. The report of the Medical Board clearly indicates that the disability was not attributable to military service and also it was not aggravated by service.

Learned counsel for the respondent on the other hand supported the orders of the High Court.

4.Reference was also made to Pension Regulations. Rule 173 of such Regulations reads as follows:

Primary conditions for the grant of disability pension :

“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 percent or above.

The question whether a disability is attributable to or aggravated by military service shall be determined under rule in Appendix II.

Relevant portion in Appendix II reads 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 wound, inj