Disability pension claims must be presumed service-related if not recorded at enlistment, with the burden of proof on the employer to demonstrate otherwise.

JUDGMENT :

(Sureshwar Thakur, J.)

Through the instant writ petition, the petitioner herein prays for setting aside order dated 09.05.2022 (Annexure P-1), as passed by the learned Armed Forces Tribunal concerned, wherebys the the petitioner’s claim for grant of disability pension has been rejected.

Factual Background

2. The applicant was enrolled in the Indian Army on 06.07.2001 and became invalided from service on 15.12.2001 after rendering 05 months and 09 days service. The supra occurred, under Army Rule 13 (3) item (iv) being medical category for the disabilities “Ptosis RT Eye and Mixed Astigmatism”. The supra disability of the applicant became regarded as neither attributable to nor being aggravated by military service. Moreover, the degree of the disability was assessed as less than 20 % (06-10%) for each disability and composite assessment of both disabilities were assessed as less than 20% (11-14%) for life. Accordingly, the claim of the applicant was processed to PCDA (P) Allahabad for adjudication, who however rejected the same on the ground, that the disabilities in question are neither attributable to nor aggravated by military service but with an advice to prefer an appeal against the decision of the PCDA (P) Allahabad, if so desired, by 17.08.2003. Thereafter, the applicant preferred the first appeal before the authority concerned in May 2003. The same was also rejected by the authority concerned.

3. Feeling aggrieved, the petitioner filed O.A. 13 of 2021 before the learned Armed Forces Tribunal concerned, challenging the afore rejection order. The said O.A., became disposed of vide order dated 09.05.2022. The operative part of the order dated 09.05.2022 is extracted hereinafter.

“The disease, Ptosis RT Eye and Mixed Astigmatism are the eye diseased (drooping eyelid and imperfection in the eyes curvature) as per Release Medical Board. This disease existed prior to the entry of the applicant into service as per Release Medical Board. The physical examination test before entry into service conducted upon an individual is a preliminary screening test. The disease in question may escape the notice of the Doctor/official concerned and moreover, as per the Release Medical Board, the disease in question existed prior to entry into service, therefore, the same is not attributable to military service. The contention of the learned counsel for the applicant that the matter is covered by the principles laid down by the Apex Court in Sukhwinder Singh’s case (supra) has no force because for the application for that principle the disease must be attributable to military service.”

4. Feeling aggrieved from the aforesaid dis-affirmative order as passed upon the O.A. (supra) by the learned Armed Forces Tribunal concerned, the petitioner has filed thereagainst the instant writ petition before this Court.

5. Before proceeding to make an effective adjudication upon the present writ petition, it is necessary to dwell upon the Guide to Medical Officers (2002) (Amended) 2008. The relevant portion of the said speaks about the necessity of existence of a causal connection inter-se the respective entailments of disability or death, upon the defence personnel, rather with the service rendered by him, as a defence personnel. The said relevant portion thereof, becomes extracted hereinafter.

“Death or disability may be due to wounds, injury or disease. Evidence of causal connection or otherwise, in cases of disease, can be obtained in various ways. For instance, the man may have admitted when he was enrolled, that he suffered from the disease previously; or in statements made before or on admission to hospital, he may have explained when he began feeling unwell or out of sorts, adding how his time shortly prior to that was spent, thereby giving an indication or clue to the proximate time and circumstances of possible source of exposure. It may be that the consensus of medical opinion is against the acceptance of the particular disability as due