IMPORTANT POINT
Onus of establishing disability disentitling pension lies on the employer.

JUDGMENT

SUDHANSU JYOTI MUKHOPADHAYA, J.

Leave granted.

2. This appeal has been preferred by the appellant against the judgment dated 31st July, 2009 in LPA No.26 of 2004 passed by the Division Bench of the High Court of Himachanl Pradesh, Shimla whereby the Division Bench allowed the appeal preferred by the Union of India and set aside the judgment dated 20th May, 2004 passed by the learned Single Judge in Civil Writ Petition No.660 of 2004.

3. The questions involved in this case are:

(i) Whether a member of Armed Forces can be presumed to have been in sound physical and mental condition upon entering service in absence of disabilities or disease noted or recorded at the time of entrance.

(ii) Whether the appellant is entitled for disability pension.

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

The appellant was enrolled as Sepoy in the Corps of Signals of the Indian Army on 15th June, 1985. Having rendered about 9 years of service in Indian Army he was boarded out of the service with effect from Ist April, 1994 on the ground of 20% permanent disability as he was found suffering from “Genrealised seizure (Epilepsy)". The Medical Board of Army opined that the "disability is not related to military service". On the basis of disability report, no disability pension was granted to him and when the appellant preferred representation the respondents rejected such prayer by an order dated 12th December, 1995 on the ground that the disability suffered by the appellant was neither attributable to nor aggravated by the military service.

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.

6. The Union of India challenged the decision of the learned Single Judge before the Division Bench of the High Court of Himachal Pradesh in LPA No.26 of 2004. On behalf of the Union of India it was contended that disease “generalized seizure" was constitutional in nature and the same has not been found by the Re-Survey Medical Board attributable or aggravated by military service. It was also contended that the learned Single Judge had not taken into consideration the relevant law while allowing the petition. The Division Bench referring to a judgment of this Court in Union of India and others vs. Keshar Singh, (2007) 12 SCC 675, and Rule 7 as noticed in the said judgment held as follows and set aside the order passed by the learned Single Judge:

“The respondent was discharged from the military after being placed in Low Medical Category (CEE). The Re-survey Medical Board had opined the disability of the respondent neither attributable nor aggravated military service. He was found suffering from ‘generalised seizure’. The learned Single Judge has purportedly referred to paragraph 7(b) of Appendix-II as referred to in Regulation 48, 173 and 185 while coming to the conclusion that the respondent was not suffering from the disease on account of which he was invalidated out of the service at the time of his initial recruitment in the Indian Army. However, the learned Single Judge has omitted to take note of paragraph 7(c) of Appendix-II as referred