1997 Supreme(Raj) 1397
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Rajendra Saxena, J.
Dariyai Singh - Appellant
Versus
Union of India and Others - Respondent
S.B. Civil Writ Petition No. 1872/94.
Decided On : 29-09-1997
A disease, which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service, if no Note of it was made at the time of individual's acceptance for military service unless subsequently medical opinion holds, for reasons to be stated, that such a disease could not have been detected on medical examination prior to the acceptance of the individual concerned for service.
Headnote:
DISABILITY PENSION - INVALIDATION FROM SERVICE - ATTRIBUTABLE TO OR AGGRAVATED BY MILITARY SERVICE - ASSESSMENT OF DISABILITY - INTERPRETATION OF PENSION REGULATION 173 AND APPENDIX 11 (ENTITLEMENT RULES) - ENTITLEMENT TO DISABILITY PENSION - WRIT PETITION ALLOWED.
Fact of the Case:
The petitioner, a Sepoy in the Indian Army, was invalided out of service on account of Cranio Pharyngioma (Operated). His disability pension claim was rejected by the respondents on the ground that his disability was not attributable to or aggravated by military service.
Finding of the Court:
The court held that the petitioner was entitled to disability pension as the cause of disability that led to his discharge from service had arisen while in service and there was no evidence to the effect that the petitioner had been suffering from such a disease prior to his joining the Army Service or that such a disease was constitutional and was not detectable on medical examination prior to his acceptance of service.
Issues: Whether the petitioner was entitled to disability pension.
Ratio Decidendi: The court interpreted Pension Regulation 173 read with Rule 7(b) of the Appendix (Entitlement Rules) and held that a disease, which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service, if no Note of it was made at the time of individual's acceptance for military service unless subsequently medical opinion holds, for reasons to be stated, that such a disease could not have been detected on medical examination prior to the acceptance of the individual concerned for service.
Final Decision: The court allowed the writ petition, set aside the orders rejecting the petitioner's claim for disability pension, and directed the respondents to grant the benefit of disability pension to the petitioner.
JUDGMENT
1. - The petitioner was recruited in the Indian Army as Sepoy on 1.2.1976 and after serving with the Kumaon Regiment, he was invalided out of service on 19.1.1993 on the recommendations of the Medical Board dated 31.12.1992, which categorised him in medical category EEE on account of his suffering from Cranio Pharyngioma (Operated). The percentage of his disability was assessed more than 20%. In his pension payment order Annexure 1, . the invaliding disability was shown as Cranio Phargioma (Operated), which was neither attributable to or aggravated by military service. His disability pension claim was rejected by the Records Officer, Records Office, Kumaon Regiment Ranikhct (respondent No. 3) vide his letter dated 9.7.1993. Annexure 2 on the ground that his disability was not attributable to or aggravated by military service. The appeal filed by the petitioner against decision taken by the respondent No. 3 was also dismissed by the Ministry of Defence, Union of India vide letter dated 11.5.1994 Annexure 5.
2. The petitioner averred that he was medically fit at the time of his enrolment in the Indian Army and that he did not suffer from any such disease at that time nor any Note was made by the Army Recruiting Authority that he suffered from Cranio Pharyngioma nor there is any material available with the respondents to show that the said disease could not have been detected on medical examination prior to this acceptance for service. The petitioner further averred that as per Rules the disease, which has led to an individual discharge or death will ordinarily be deemed to have arisen in service, if no Note of which was made at the time of individual's acceptance for military service, however, if medical opinion holds for reasons to be stated that such disease could not have been detected on medical examination prior to acceptance for service then the disease will not be deemed to have arisen during service. The petitioner has, therefore, prayed for issuance of writ of mandamus to the respondents to pay him the disability pension with effect from 19.1(1.93 in accordance with Rules along with interest @ 15% per annum and that Annexure 2 & 5 be also quashed.
3. This writ petition has been opposed on the ground that the petitioner is not entitled to claim disability pension because his disability was a constitutional disorder and not connected with the services, that such disability was neither attributable to nor was aggravated by military service. The respondents have pleaded that at the time of the recruitment of an individual in the Army, only external medical examination is conducted and as such the ailment of the petitioner namely Cranio Pharyngioma could not be detected at that time and asserted that his claim for grant of disability pension has been rightly rejected.
4. The entire medical record of the petitioner was sent for, which was submitted by the respondents for the perusal of this Court. An affidavit of Lt. Col. (Dr.) K.K. Panicker, who was one of the members of the Medical Board has also been filed by the respondents.
5. I have heard the learned counsel for the parties at length and very carefully perused the record of this case and also closely scrutinised the medical record of the petitioner.
6. Shri Pyarelal, the learned counsel for the petitioner has strenuously canvassed that in view of the provisions contained in Regulation 173, Section IV, Disability Pension Award, it was incumbent for the respondents to have made a Note about the constitutional disability of the petitioner on his initial appointment in the Army and since no such Note was recorded at that time, the alleged disability suffered by him must be deemed to have arisen during service and the same must be treated as attributable to and aggravated during military service. In support of his contention he has placed reliance on the decisions in, Union of India v. Bodanlal Yadav [1994 (1) S.L.R. 390] Mohanlal v. Union and other [1995 (5) S.L.R. 183
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