ORDER

1. This Appeal assails the Order passed by the Division Bench of the High Court of Delhi at New Delhi dated March 30, 2006 whereby WP(C) No.3923 of 2005 came to be dismissed. The prayer in the Writ Petition, inter alia, was for the issuance of a writ directing the respondents to release

(a) disability pension in favour of the Petitioner if disability is twenty per cent and above,

(b) the service element of pension in favour of the Petitioner and

(c) to re-enrol the Petitioner if his disability is found less than twenty per cent.

2. Succinctly stated, the facts germane for deciding the present Appeal are that consequent to the Primary Medical Examination for Recruitment having been conducted vis-a-vis the Appellant/Petitioner on 22nd December, 2000, he was enrolled in the Indian Army as a Combatant Soldier on 15th March, 2001. It bears noting that Rule 5 of the Entitlement Rules for Casualty Pensionary Awards, 1982, provides that

(a) “a member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance

(b) in the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due to service.”

Even though this provision postulates a ‘casualty’ we find no logical reason not to extrapolate it to even simple injuries or disabilities. Therefore, it would be fair to assume that on the date of his recruitment the Appellant was in a sound health; no hearing impairment had been detected at that stage, no adverse noting had been made in the Medical Entry Form viz. AFMSF-2 for existence of any disease at the time of enrolment. This was after the Appellant had been examined physically and medically as contemplated by Regulation 383 which reads thus:-

“383. Responsibility of Recruiting and Medical Officers Recruiting officers are responsible for the measurements, apparent age, intelligence and mental suitability of the candidates selected by him. Medical Officers are responsible for the health, physical fitness for service, likely extent of development and identification marks.”

3. We are not a little surprised that although the Rules or Regulations (Chapter VII of the Regulations for the Medical Services of the Armed Forces, 1983) specifically postulate the formation of Invalidation Medical Boards, they do not set out the medical parameters justifying or requiring serviceman/officer to be removed from service. This feature renders decisions taken by such Boards pregnable to assaults on the grounds of capriciousness or arbitrariness, and this is especially so where the extent of the disability is below twenty per cent.

Can the Authorities be permitted to portray that whilst a person has so minor a disability as to disentitle him for compensation, yet suffers from a disability that is major or serious enough to snatch away his employment? This is especially so since Regulation 132 ordains that the “minimum period of qualifying service (without weightage) actually rendered and required for earning service pension shall be 15 years.” Moreover, in the case in hand, it appears that no efforts were undertaken by the Respondents to consider whether the Appellant could continue in service in a lower medical category.

4. According to the Appellant, on 5.8.2001 he was slapped on the ear by the Instructor in the Training Centre as a consequence of which he suffered shooting pain in that ear and was admitted to the Military Hospital, Kamptee. We have perused the Report of the Medical Officer (ENT), dated 5.8.2001 which has been filed with the Appeal as Annexure P-1. It contains a noting to the effect that the Appellant had stated that he was hit on the ear by a fellow patient in the ward. The diagnosis was that there was “Substandard hearing RT ear (old) c Tr perforation LT TM.” It seems to us that the discrepancy in the noting as to the manner in which the injury was sustained was because