The main legal point established in the judgment is the entitlement to disability pension for Army Personnel and the need to examine the causal connection of disability to Military Service, the primacy of medical opinion, and the compatibility of the act leading to an accident with military duty.

K.KANNAN, J.

1. I. The issue at stake and the cause for reference to Full Bench.

1. The above two cases address the same issue with reference to the entitlement of disability pension by an Army Personnel, who suffered a disability in an accident during leave. In both the cases, the disability had arisen through accidents during leave. The entitlement to disability pension is anchored to para 173 of the Pension Regulation of the Army Act that provides for disability pension arising on account a disability, which is attributable or aggravated by Military Service in non-battle casualty and is assessed at 20% or over. The expressions of a causal connection of disability that is attributable to Military Service in a non-combat situation would take us to examine what types of activities could be taken to have connection to Military Service. The issue would again be whether a person, who is on casual leave or annual leave would be subjected to any different yardsticks in assessing this causal connection. The reference to a Full Bench itself has arisen on account of a Division Bench of which one of us (Justice Adarsh Kumar Goel) was a party, noticed that there had been a conflict of opinions between a Division Bench judgment of this Court in Jarnail Singh v. Union of India 1998(4) R.C.R.(Civil) 671 : 1998(2) R.C.R.(Rent) 426 : 1998(1) SLR 418 on the one hand and the three other decisions of this Court in Gurjit Singh v. Union of India and others 2008(2) SCT 333, Pooja and another v. Union of India and others 2009(1) SCT 491 and Pargat Singh v. Union of India and another in C.W.P. No. 12434 of 1999 decided on 22.09.2006 on the other.

II. Setting the cases in their factual matrix and their litigious journey

2. To set the factual position in both the cases correctly in order to appreciate the law involved, in LPA No. 978 of 2009, the respondent Khushbash Singh joined as Sepoy in Army on 08.02.1974 and was on casual leave when he had gone to his village in the year 1988. He met with an accident while traveling on a scooter that resulted 60% disability leading to his discharge from the year 1991. The service element of pension was given to him but disability pension claimed by him was disallowed on the ground that the same was not admissible. In LPA No. 49 of 2009, the writ petition had served the Army from 1979 to 1982, when he was on annual leave in the year 1992 and when he had gone to Mata Chintpurani. He was invalidated out of service on medical ground but denied disability pension on the ground that the injury was not attributable to Army Service.

3. The respondent in LPA No. 978 of 2009 had filed the writ petition challenging the rejection of his claim for disability pension and it was allowed by learned Single Judge following the judgment of the Honble Supreme Court in Madan Singh Shekhawat v. Union of India 1999(4) S.C.T. 89 : AIR 1999 SC 3378 and a Division Bench of the Delhi High Court in Ex. Sepoy Hayat Mohammed v. Union of India and others 2008 (1) SCT 425. When the appeal came up for hearing before the Division Bench, it was pointed out that the Division Bench judgment of the Delhi High Court in Ex. Sepoy Hayat Mohammeds case had been over-ruled by a Full Bench of the Delhi High Court in Dilbagh Singh and others (Ex. Nk) v. Union of India and others 2008(4) SCT 432. The latter Full Bench judgment was cited in Union of India and others v. Sumanjit Singh 2009(4) SCT 44, which was a subject of appeal in L.P.A. No. 49 of 2009 when originally a Division Bench had, while allowing the appeal filed by the Union of India, held that no disability pension would be claimable by a person, who had suffered the disability in an accident on annual leave. This judgment had been rendered in the absence of the counsel appearing for the respondent (the army employee) and on an application for review, the decision had been set aside and it has also come up for consideration on merit along with other appeal.

III. The lynchpin Pension Regul