A disease leading to an individual's discharge from military service is deemed to have arisen in service unless there is a note of the disease at the time of acceptance for service or a medical opinion that the disease could not have been detected prior to acceptance for service.

C.K. Prasad, J.

1. By this writ petition filed under Articles 226 and 227 of the Constitution of India, petitioner prays for quashing of the order dated 18-3-1997 (Annexure P-2) as also the order dated 5-4-1999 (Annexure P-4) whereby the prayer made by the petitioner for grant of disability pension has been rejected.

2. Facts necessary for the decision of the present writ petition are that the petitioner was enrolled in the Army in Corps of Electrical and Mechanical Engineers on 27-2-1991. It is his assertion that on successful completion of training at 3 EME Centre at Bhopal and College of Material Management at Jabalpur he was posted as Sepoy (Store Keeper Technical). Petitioner appeared before the Medical Board on 12-3-1996 and it was found that the petitioner was suffering from non organic psychosis. Thereafter a discharge slip was issued to him on 6-4-1996 and from perusal of the discharge slip it is apparent that he was invalidated out of service on account of low medical category 'EEE' (Psychological). His disability is more than 20%. Petitioner made request for grant of disability pension which as stated earlier has been rejected by the impugned orders.

3. Return has been filed on behalf of the respondents and disability pension is sought to be denied to the petitioner on the ground that the disease i.e., non-organic psychosis, which resulted into the petitioner's discharge is not attributable to the military service.

4. Rule 173 of the Pension Regulation which inter alia provides for condition for grant of disability pension, reads as follows :--

"173. Unless otherwise specifically provided a disability pension may be granted to an individual who is invalidated from service on account of disability which is attributable to or aggravated by military service and is assessed at 20 percent or over.

The question whether a disability is attributable to or aggravated by military service shall be determined under the rules in Appendix II."

5. Rule 7 (a) and (b) of Appendix as referred to above reads as follows:--

"7. In respect of the diseases, the following rules will be observed:--

(a) Cases in which it is established that conditions of military service did not determine or contribute to the onset of the disease will fall for acceptance on the basis of aggravation.

(b) A disease which has led to an individual discharge or death will ordinarily be deemed to have arisen in service, if no note of it was made at the time of individual's acceptance for military service. However, if medical opinion holds for reasons to be recorded that disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service."

6. It is not in controversy that the disability of the petitioner is more than 20 percent. Further it is beyond any controversy that the petitioner has been discharged on account of the disease which has been diagnosed as non organic psychosis. Nothing has been placed on record to show that any note was made regarding the disease of the petitioner at the time of acceptance for military service. Further the Medical Board has no where opined that the disease could not have been detected on medical examination, prior to acceptance of service. Medical Board has, however, opined that the disease non organic psychosis is not attributable to the Military service.

7. Mr. Ghildiyal appearing on behalf of the petitioner submits that the petitioner has been discharged from service on account of the disease and in view of Rule 7 (b) of Appendix II of Pension Regulation, disease will be deemed to have been arisen in service in the absence of any note by Medical Board that the disease for which petitioner is suffering i.e., 'non organic psychosis' could not have been detected on medical examination prior to acceptance for service. He points out that no note regarding the same was made at the time of petitioner's acceptance for military service.

8. Mrs. Nair appearing