The denial of disability pension to an Army personnel due to a disease developed after joining the service is legally unsustainable.

Permod Kohli, J.

1. C.M. No. 18459 of 2009

The writ petition is taken up for final disposal today itself. C.M. disposed of.

C.W.P. No. 11543 of 2009

2 The petitioner was enrolled in the Army on 14.4.1962 after having been found medically fit. After completion of training, the petitioner was made a Sepoy. The petitioner served both at field and peace areas as also at the high altitude. The petitioner also participated in the war like operations in Kashmir and Bangladesh. During active service in Rajasthan, the petitioner fell down while he was on duty. The petitioner was brought before the Invaliding Medical Board which recommended the invalidation of the petitioner from the Army due to the disease Hypertension (EFFOF) with Angina Decubitus. After rendering total service of 17 years and 161 days, the petitioner was invalided out of Army Service in the lowest medical category i.e. EEE with 30% disability for the aforesaid disease on 21.9.1.979. However, the petitioner has not been granted disability pension.

3. I have heard learned counsel for the parties. It is admitted case of the parties that at the time of recruitment, the petitioner was found medically fit and he had no such problem. The petitioner developed the problem after joining the service. This fact cannot be lost sight of that the Army service carries great stress and strains, particularly when the Army personnels are deployed not only during war, but even at the time of law and order problem and other natural calamities alongwith in the border areas. Their life is full of stress and strains. Such a disease is not unknown in such cases. It is also not recorded by the Medical Board that such a disease could not be detected at the time of petitioners entry in service. Similar issue came up before various Courts from time to time. Relying upon various judgments of this Court and of the Delhi High Court, a Division Bench of this Court in the case of A.J.S. Chaudhary v. Union of India and others, 1999 (1) R.S.J. 778, has held as under :

"19. The ratio of the decisions, referred to herein above, fully support the argument of Shri Randhawa that the rejection of petitioners claim for disability pension is legally unsustainable because at the time of his acceptance for military service, no note was recorded that he was suffering from Schizophrenia and the opinion recorded by the Medical Board at the time of his discharged from service does not contain a note that the disease was such which could not be detected at the time of petitioners entry in the service.

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22. For the reasons mentioned above, the writ petition is allowed. The decision of the respondents rejecting the petitioners claim for disability pension is quashed and it is declared that the petitioner is entitled to get disability pension in accordance with Rule 173) read with Appendix-II of the Army Regulation s. The respondents are directed to calculate the disability pension payable to the petitioner from the date of discharge from service and pay the same to him within 4 months of the submission of certified copy of this order, else he shall get interest on arrears at the rate of 18% per annum."

4. This Court, while considering similar circumstances in the case of Surjit Singh v. The Secretary to the Govt. of India, Ministry of Defence and others, 1999(4) S.C.T. 645 : 1999 (4) R.S.J. 385, has observed as under :

"3. It will be seen that the impugned orders Annexures P-2 and P-5 are based on the assessment made by the C.C.D.A. (P) Allahabad and there is no reference medical board. As the C.C.D.A. (P) Allahabad or the Medical Authority attached thereto, did not have the occasion to examine the petitioner and had based their assessment only on the record no sanctity can be accorded to such a decision. It is true, that the respondents have also averred that the petitioners disease was a constitutional one and could not he attributed to military service and that this decision had come from the inva