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2008 Supreme(Raj) 424
Rajasthan High Court, Jaipur Bench
Honble SHIV KUMAR SHARMA, J. Honble GUMAN SINGH, J.
Mohammad Hasan Khan - Appellant
Versus
U.O.I. & Ors. - Respondents
D.B. Civil Special Appeal (W) No. 351 of 2000
Decided On : April 01, 2008
Rajendra Prasad, for Appellant; Sanjay Pareek, for Respondents
Headnote:Pension Regulations for the Army, 1961, Clause 7(b) – Disability pension – Appellant was not suffering from any disease prior to his entering into military service – Remained in field service upto March, 1973 – Disease of Hyper Metaropia Partial Amblyopia Rt. Eye was diagnosed in June 1974 after he was posted in operation with cactus war with neighbouring country – Held – When no note about the disease was made in the medical report by the Medical Board at the time of appellants acceptance for military service, it can not be accepted that the disease suffered by appellant was not attributable to military service – Single judge not considered the report of Medical Board in right perspective – Directed to pay disability pension from the date of his discharge i.e. 15.3.1978 within 60 days.(Paras 5 to 8) Appeal allowed.
lsuk gsrq isaku fofu;e] 1961] [k.M 7¼[k½ & fu%kDrrk isaku & fefyVjh lsok esa izosk ls iwoZ vihykFkhZ fdlh chekjh ls xzflr ugha Fkk & ekpZ 1973 rd QhYM lsok esa jgk & iM+kSlh jk"Vª ds lkFk ^^dsdVl okWj** vkijsku esa inLFkkfir jgus ds ipkr~ twu 1974 esa ^^gkbZij esVkjksfi;k ikjfk;y ,EcY;ksfi;k jkbZ vkbZ** uked chekjh dk irk pyk & vfHkfu/kkZfjr & tc vihykFkhZ }kjk fefyVjh lsok esa izosk djus ds nkSjku esfMdy cksMZ }kjk nh xbZ esfMdy fjiksVZ esa fdlh Hkh izdkj dh chekjh dk mYys[k ugha fd;k x;k Fkk rks] ;g ugha ekuk tk ldrk fd vihykFkhZ dks xzflr chekjh fefyVjh lsok ds dkj.k ugha gqbZ & ,dy U;k;k/khk us esfMdy cksMZ dh fjiksVZ ij lgh ifjizs{; esa fopkj ugha fd;k & mUekspu dh frfFk vFkkZr 15-3-78 ls fukDrrk% isaku 60 fnol ds Hkhrj nsus ds funsZk fn;sA vihy Lohdkj dhA ¼in la[;k 5 ls 8½
(2). In this intra court appeal, the appellant has assailed the order dated December 7, 1999 of the learned Single Bench whereby the appellant was not found entitle to disability pension.
(3). As per the admitted facts, the appellant remained in field services upto March 1973 and disease Hyper Metaropia Partial Amblyopia Rt Eye was diagnosed somewhere in June 1974 after the appellant was posted in operation with cactus war with neighbouring country.
(4). A look at Annexure R/2 appended to the reply filed by the respondents before the learned Single Bench, demonstrates that in the opinion of Medical Board, the appellant had not suffered from any disability before entering into service. Opinion of the Medical Board was incorporated in Part III of the document and the extract of which reads as under:
"(1) Did the disability/disabilities exist before entering service? -No
3(a) Was the disability, attributable to the Individuals own negligence or misconduct? If so, in what way - NA
3(b) If not attributable, was it aggravated by negligence or misconduct? If so, in what way and to what percentage of total disablement? - NA
(5). Evidently, the appellant was not suffering from any disease prior to his entering into the military service.
(6). At this juncture, we deem it appropriate to refer to clause 7(b) of Pension Regulations for the Army 1961, which reads as under:
"7 (b) - A disease which has led to an individuals discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of the individuals acceptance for military service. However, if medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service the disease will not be deemed to have arisen during service."
(7). Since no note about the disease was made in the medical report by the Medical Board at the time of appellants acceptance for military service, it is difficult for us to accept the contention raised on behalf of the respondents that the disease suffered by the appellant was not attributable to military service. The learned Single Bench, in our opinion, has not considered the report of the Medical Board in the right perspective.
(8). For these reasons, we allow the appeal and set aside the impugned order of the learned Single Bench. While quashing the orders of the respondents, passed on August 18, 1978 and August 24, 1987, respectively, we direct them to pay disability pension to the appellant with effect from the date of his discharge i.e. 15.3.1978. There shall be no order as to costs. The respondents shall ensure the compliance of this order within 60 days of the receipt of the certificate copy of this judgment.
