A chronic disability aggravated by military service is entitled to a disability pension regardless of voluntary discharge, as established in applicable regulations.

Judgment :

Johnson John, J.

1. The writ petitioner was the applicant in O. A. No. 21 of 2024 before the Armed Forces Tribunal, Regional Bench, Kochi and as per order dated 27.06.2024, his application against non grant of disability pension was dismissed for the reason that he was discharged from service on own request and that the applicant was assessed by the Release Medical Board with the disability ‘Bronchial Asthma’ at 20% for a period of two years and there is nothing in the certificate to show that the disability is incapable of improvement.

2. Heard Sri. Ratheesh B., the learned counsel for the petitioner and Sri. S. Biju, the learned Senior Central Government Counsel for the respondents.

3. The learned counsel for the writ petitioner argued that the writ petitioner was enrolled in the army on 04.10.1986 in a physically and medically fit condition and in the year 1994, while he was posted at Udhampur (Jammu and Kashmir), he was diagnosed with Bronchial Asthma. It is pointed out that the medical category of the applicant was downgraded to ‘BEE permanent’ and he was constrained to avail discharge from service due to medical issues.

4. The learned counsel for the writ petitioner pointed out that even though in column No. 4 of Annexure A2 opinion of the Medical Board, the probable duration of the degree of disablement of ‘Bronchial Asthma’ is shown as 20% for two years, the entry in column No.6 and the entries in the medical sheet in page No.4 of Annexure A2 will show that the applicant was recommended to be released in medical category ‘BEE permanent’ and therefore, considering the fact that Bronchial Asthma is a chronic, lifelong condition without any permanent cure, the Medical Board is not justified in restricting the disability for a period of two years.

5. In this connection, the learned counsel for the writ petitioner also relied on the decision of the Honourable Supreme Court in Commander Rakesh Pande v. Union of India and others (order dated 28.11.2019 in Civil Appeal No. 5970/2019), wherein the Honourable Supreme Court referred to paragraph 7 of the letter dated 07.02.2001 of Government of India regarding the modalities for implementation of the recommendations of the Fifth Central Pay Commission that no periodical reviews by Resurvey Medical Boards shall be held for reassessment of disabilities. In the said case, it was also held that in case of disabilities adjudicated as being of permanent nature, the decision once arrived at will be for life, unless the individual himself requests for a review. In that case, the Apex Court took the disability of Non-insulin Dependent Diabetes Mellitus (NIDDM) and Hyperlipidaemia at 20% for 5 years assessed by the Release Medical Board as one for life.

6. The learned Senior Central Government Counsel appearing for the respondents argued that in this case, the disability assessed by the Medical Board is only for two years and hence, the same is not a permanent disability and he was also not invalided out of service, but discharged from service at his request and therefore, his claim for disability pension is not sustainable. It is pointed out that even though Annexure A4 letter dated 19.05.2017 of the Ministry of Defence, Government of India, extended the benefit of disability pension to persons discharged voluntary or otherwise, the petitioner herein does not satisfy the conditions therein. It is pointed out that to avail the benefit of Annexure A4 letter, the concerned Armed Forces personnel should still be suffering from the same disability which should be assessed at 20% or more on the date of effect of the said letter dated 19.05.2017 and in the absence of any document to show that the petitioner is still su