The burden of proof regarding the attributability of disability to military service lies with the military establishment, not the claimant, under the Entitlement Rules for Casualty Pensionary Awards to Armed Forces Personnel, 2008.

JUDGMENT :

MANMEET PRITAM SINGH ARORA, J.

CM APPL. 6471/2026 (for exemption)

1. Allowed, subject to just exceptions.

2. The application is disposed of.

W.P.(C) 1327/2026

3. This is a writ petition filed under Article 226 of the Constitution of India against the order dated 19.07.2023[‘impugned order’] passed by the Armed Forces Tribunal, Principal Bench, New Delhi [‘Tribunal’] in Original Application [‘O.A.’] No. 1369/2020 titled asMWO Brijesh Singh Pawar (Retd.) v. Union of India & Ors., wherein the Respondent has been granted the benefit of the disability element of pension for Primary Hypertension (old) assessed at 30% for life and Diabetes Mellitus Type II assessed at 20% for life, rounded off to 50% for life, from the date of his retirement from the service i.e., 30.09.2018.

4. The facts giving rise to the present petition are that the Respondent was retired from the service on 30.09.2018 under the clause ‘on superannuation on fulfilling the condition of enrolment after rendering a total of 35 years and 113 days of regular service’. The Release Medical Board [‘RMB’], held on 14.11.2017, assessed his disabilities i.e., (a) Primary Hypertension at 30% for life and (b) Diabetes Mellitus Type II at 20% for life with composite assessment for both IDs at 40% for life.

5. The RMB opined that since the onset of the diseases was at the time when the Respondent was serving at the peace station i.e., in October 2005 at Air Force Station, Jammu; that the disease of Primary Hypertension was due to the lifestyle disorder; that the disease of Diabetes Mellitus Type II is a metabolic disease, therefore, the aforesaid disabilities were neither attributable to nor aggravated [‘NANA’] by the military service.

6. The Respondent’s claim of disability pension was rejected by the Petitioner vide letter dated 10.10.2018, as the disability was opined NANA by the service. The Respondent’s first appeal challenging the said refusal, was rejected on 06.12.2019.

7. The Respondent filed O.A. No. 1369/2020 before the Tribunal for the grant of disability element of pension.

8. By the impugned order, the Tribunal while referring to the judgments of the Supreme Court in Dharamvir Singh v. Union of India and Ors. /b>. 2013 (7) SCC 361 andUnion of India v. Ram Avtar , 2014 SCC Onl ine SC 1761 granted the relief of disability pension to the Respondent.

9. The only submission made by the learned counsel for the Petitioners is that the reliance placed by the Tribunal on the judgment of Dharamvir Singh v. Union of India and Ors. /b>. (supra) is totally misplaced as in the said case the Supreme Court was concerned with the Entitlement Rules for Casualty Pensionary Awards, 1982 [‘Entitlement Rules, 1982’], whereas the case of the Respondent needs to be considered under the Entitlement Rules for Casualty Pensionary Awards to Armed Forces Personnel, 2008 [‘Entitlement Rules, 2008’].

9.1 He contends that the Tribunal has overlooked the Entitlement Rules, 2008, which governs attributability and aggravation and no longer permit a blanket presumption in favour of the claimant and since the RMB has opined the diseases to be NANA, the Tribunal could not have presumed a causal connection between the disease and the service. He states in the facts of this case, Respondent retired on 30.09.2018 and therefore, the Respondent would be governed by Entitlement Rules, 2008. He states that the impugned order incorrectly applies the pres