JUDGMENT :

Sureshwar Thakur, J.

Through the instant writ petition, the petitioner herein-Union of India, prays for the setting aside of the order dated 15.11.2022 (Annexure P-1), as passed by the learned Armed Forces Tribunal concerned, wherebys the claim of respondent No. 1 for the grant of disability pension was allowed.

Factual Background

2. Respondent No. 1 joined Army on 01.05.1996 in a fit state of health. During the course of his service, he incurred the disabilities of (i) PRIMARY HYPERTENSION WITH TARGET ORGAN DAMAGE (1-10), (ii) SMALL CONGENITALLY HYPOPLASTIC LT KIDNEY and (iii) TYPE II DISABETES MELLITUS and was discharged from service on 30.04.2020. At the time of discharge, his disabilities were respectively assessed @ 40%, @30 % and @20% and @66.4% composite for life.

3. The disability element claim of the respondent was rejected by the Competent Authority, thus on the ground that the supra disabilities were neither attributable to nor being aggravated by rendition of military service.

4. Respondent No. 1 filed first appeal dated 19.09.2020. However, the same was rejected by the Appellate Committee vide order dated 19.02.2021.

5. Feeling aggrieved, respondent No.1 filed O.A., before the learned Armed Forces Tribunal concerned, wherebys he cast a challenge to the afore said rejection order. The said O.A., became allowed vide order dated 15.11.2022. The operative part of the said order is extracted hereinafter.

'10. Considering the law laid down by the Hon'ble Supreme Court and also the attending circumstances, the rejection of the claim of the Applicant is set aside and the applicant is thus held entitled to disability pension @ 75% as against 66.4% for life after being rounded off as per judgment of the Hon'ble Supreme Court in Civil Appeal 418/2012 Union of India vs Ram Avtar decided on 10-12-2014 and the arrears are directed to be released by the Respondents within a period of three months from the receipt of a certified copy of this order by the counsel for the Respondents/OIC Legal Cell, failing which the arrears shall carry an interest @8% from the date of this order.'

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

Inferences of this Court.

7. Before proceeding to make an effective adjudication upon the present writ petition, a useful assistance for determining whether the befallment of any disease vis-a-vis any member of the defence personnel, but post his being enrolled in the army, despite at the initial stage, upon his becoming enlisted, as a member of the combatant defence establishment, rather the same remaining undetected, yet the apposite eruption, thus post enlistment hence being construable to be either congenital or being construable to become aggravated or being attributable to military service, thus is acquired, from, the principles set forth in the judgment rendered by the Hon'ble Apex Court, in case titled as Dharamvir Singh vs. Union of India, reported in (2013) 7 SCC 316. The relevant paragraphs of the said verdict are extracted hereinafter.

29. A conjoint reading of various provisions, reproduced above, makes it clear that:

(i) Disability pension to be granted to an individual who is invalidated from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable or aggravated by military service to be determined under 'Entitlement Rules for Casualty Pensionary Awards, 1982" of Appendix-II (Regulation 173).

(ii) A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be presumed due to service.