Disability pension claims must establish a direct connection to military service, with the burden of proof on the claimant, especially under new regulations.

ORDER :

S.M.Subramaniam J.

Under assail is the order dated 03.03.2022 passed in O.A.No.198 of 2020 on the file of the Armed Forces Tribunal, Regional Bench, Chennai.

2. The Union of India represented by the Secretary, Ministry of Defence is the writ petitioner before this Court.

3. The second respondent ex-service man instituted Original Application before the Armed Forces Tribunal (hereinafter referred as AFT) challenging the validity of the order dated 18.12.2019, wherein the competent authority of the Ministry of Defence rejected the petition stating that the second respondent preferred a delayed/time barred appeal after a gap of 12 years. The Tribunal allowed the disability claim of the second respondent relying on the Judgment of the Hon’ble Apex Court in Dharamvir Singh vs. Union of India and Others reported in (2013) 7 SCC 316

4. The facts in nut shell not seriously disputed between the parties would reveal that the second respondent was enrolled in Indian Army on 07.05.1973 and discharged on 31.08.1994 under Army Rule 13 (3) item III (i) of Army Rules 1954 after rendering 21 years 3 months and 25 days of qualifying service. The second respondent was drawing service pension from 27.02.1994.

5. The second respondent claimed disability element of pension. Release Medical Board assessed the disability Type 2 Diabetes Mellitus as 20% for life and opined that the disability was neither attributable to nor aggravated by military service.

6. The Release Medical Board opined that IDs as neither attributable to nor aggravated by military service. Therefore, the petitioners have declined to consider the claim of the second respondent for grant of disability pension. Thus, the Original Application came to be instituted.

7. The learned Counsel for the petitioners would submit that the Release Medical Board considered the nature of disability and opined that the IDs as neither attributable to nor aggravated by military service. However, the Tribunal granted disability pension relying on the Judgment of the Hon’ble Apex Court in Dharamvir Singh's case cited supra, which would not have any direct application with reference to the facts and rules applicable as far as the petitioner is concerned.

8. As per the rule which came into force in the year 2008, the Medical Board’s opinion became final, unless the employee could able to produce incriminating evidence rebutting the medical board’s opinion. In the present case, the release medical board’s opinion was not disputed. Therefore, the Tribunal has committed an error in granting disability pension.

9. In 2008 rules, the presumption factor was deleted and the Dharamvir Singh’s case was decided based on the presumption factor and based on the old rule of the year 1961. Therefore, the said Judgment ought not to have been relied upon by the Arms Tribunal for granting the relief of disability pension in favour of the second respondent. When the rule underwent change and new rule came into force, the Judgment delivered based on the old rule need not be relied upon. Thus, the present writ petition is to be considered.

10. Mr.V.Ganesan, learned counsel appearing on behalf of the second respondent would strenuously oppose by stating that the legal principles settled in Dharamvir Singh’s case is in force. Therefore, the Tribunal has rightly approached the issues relying on the legal principles. The burden of proof is on the side of the officials. Therefore, it is to be presumed that the disability occurred due to the services rendered in hard and critical areas. When such a presumption is available to an employee in Indian Army, the same need not be denied merely on technical grounds as the service personal in Indian Army are deputed to critical places, high altitude places, for performing hard duties, and considering these factors the element of disability pension has been introduced. The life style of these personal in Indian Army are also taken into consideration for grant of disability pension. On some