Eligibility for disability pension requires clear evidence that the disability is attributable to or aggravated by military service, not just medical authority's opinion.

ORDER :

S.M. SUBRAMANIAM, J.

Under assail is the order dated 02.02.2023 passed by the Armed Forces Tribunal, Regional Bench at Chennai in O.A.No.119 of 2021.

2. The first respondent instituted original application claiming disability pension @ 30% w.e.f. 01.10.2019, duly broadbanding to 50% with arrears and interest, which was allowed by the Armed Forces Tribunal by the impugned order. Aggrieved thereby, the respondents in the original application have instituted the present writ petition before this Court.

3. The records would show that the first respondent was enrolled in the Indian Army on 02.09.1995 and discharged from service on 30.09.2019 after rendering 24 years and 29 days of service. It is not in dispute that the first respondent is in receipt of service pension with effect from 01.10.2019. The first respondent was placed in low medical category P2 (P) for disability due to Primary Hypertension and the Release Medical Board considered the disability as neither attributable to nor aggravated by military service, as the onset of the disability was in modified field area and there is no evidence of stress and strain due to military service. Therefore, the claim of the first respondent for grant of disability pension was rejected vide the letter dated 30.06.2019, as he did not fulfill the conditions laid down in Para 179 of the Pension Regulations for the Army, 1961 (Part 1). The first and second appeals preferred by the first respondent were also rejected by the appellate authorities vide the letters dated 14.09.2020 and 06.07.2021 stating that the disability is neither attributable to nor aggravated by military service. However, the Armed Forces Tribunal, ignoring the report of the Release Medical Board, relying upon the judgment of the Hon'ble Supreme Court in Dharamvir Singh v. Union of India , has erroneously allowed the claim of the first respondent for grant of disability pension.

4. Heard the learned counsels appearing for the parties to the lis. Question arises whether the first respondent is eligible to claim disability element of pension under Para 179 of the Pension Regulations for the Army, 1961 (Part 1)?

5. Para 179 of the Pension Regulations for the Army, 1961 (Part 1) reads as under:-

“179. An individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or on attaining the age of 50 years (irrespective of their period of engagement), if found suffering from a disability attributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalided out of service and shall be granted disability pension from the date of retirement, if the accepted degree of disability is 20 percent or more, and service element if the degree of disability is less than 20 per cent. The service pension/service gratuity, if already sanctioned and paid, shall be adjusted against the disability pension/service element, as the case may be.”

6. The above provision in clear terms indicates that a disability which is either attributable to or aggravated by military service and so recorded by Release Medical Board, may be taken into consideration for grant of disability pension. In the case of first respondent, the disability and the reasons recorded by the competent authority read as under:-

7. The Tribunal, while granting relief in favour of the first respondent, relied on the judgment of the Hon'ble Supreme Court in the case of Dharamvir Singh v.