The main legal point established in the judgment is that if a disease was not detected at the time of enrollment, it would be presumed to have arisen during service, and the benefit of reasonable doubt regarding disability would go to the individual.

N. Paul Vasantha Kumar, J.

1. Heard Ms. Surinder Kour, learned senior counsel appearing for the appellant and Mr. R.S. Jamwal, learned counsel appearing for the respondents. This appeal is preferred by the appellant challenging the order of learned Single Judge made in SWP No. 2639/2001, dated 01.01.2010, rejecting the claim of disability pension of the appellant, who was boarded out due to medical disability by the respondents.

2. The case of the appellant is that he was appointed as Rifleman on 18.04.1988 and allotted No. 9088903. He underwent training at JAKLI Centre, Srinagar and on completion of the training he was posted in 13th JAKLI Jalandhar. The performance of the appellant was noticed as efficient and honest to the satisfaction of the superiors and there were no adverse remarks against the appellant. While in active service the appellant suffered disability and came to be boarded out on medical grounds on 29.01.1990. The disability of the appellant was assessed by the Medical Board as 60%. The appellant claimed disability pension which was rejected by the Chief Controller of Defence Accounts by order dated 10.09.1990. The Medical Board found that the appellant was suffering from "PARTIAL G6 PD DEFICENCY-281". According to the appellant, he was medically found fit by the Board of Doctors and the appellant was enrolled 'AYE' category which means that the appellant was in good health. The disability was caused due to stress and strain of military service and therefore, the appellant is entitled to get sanction of disability pension as his disability was assessed more than 20% which is the prescribed eligibility for getting disability pension. The appellant preferred appeal against the order of rejection of his disability pension and the same was dismissed by the Ministry of Defence by order dated 21.10.1991. Again the appellant filed another appeal and an order was passed on 31.08.2001. The appellant preferred writ petition before the Writ Court and challenged the order rejecting the disability pension dated 21.10.1991 and further order dated 31.08.2001 and prayed for sanctioning and release of disability pension from the date he was boarded out from service on medical ground and pay all pensionary benefits with arrears and interest. The said writ petition was dismissed by the Writ Court by accepting the reasons stated by the respondents that the disability of the appellant being an inherited genetic disorder, not arisen due to military service, which was failed to be detected by the medical board at the time of his initial recruitment and the writ petitioner, is not entitled to get the disability pension.

3. Against the said order of the Writ Court, this appeal is preferred by contending that the appellant's case cannot be rejected as it is not coming under the ambit of the Pension Regulations of the Army, 1961 as no note was made at the time of initial recruitment of the appellant by the Medical Board about the genetic disorder of the appellant. As per Appendix-II, Rule 14(b), if the disease was not detected at the time of enrollment then the disease is presumed to be arisen during service.

4. This Court as well as Hon'ble the Supreme Court in similar circumstances allowed the disability pension to lot of military personnel as there was no disability found by the Medical Board at the time of initial recruitment and the disability assessed being more than 60%, the appellant is entitled to get disability pension. The learned Single Judge has not properly appreciated the facts as well as the law and went on to presume to justify the rejection of disability.

5. Learned counsel for the respondents fairly submitted that the disability/any genetic disorder was not found during initial recruitment by Medical Board and there was no laxity on the part of Medical Board which examined the appellant and sometime the genetic disorder could not be easily found particularly when the appellant was recruited in the year 1988 and