IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present:-

The Hon’ble Justice Madhuresh Prasad And The Hon’ble Justice Supratim Bhattacharya W.P.C.T. 322 of 2024 Union of India and Others Versus Sourav Biswas For the Petitioners : Mr. Vipul Kundalia, Ms. Anamika Pandey, Mr. Anindya Kanan, Mr. Dhirodatto Chaudhuri, Mr. Ghanshyam Pandey For the Respondent : Ms. Manika Roy, Ms. Ankita Chowdhury, Mr. Atanu Sur Judgment on : March 24, 2025.

Madhuresh Prasad, J.:

1. The present writ petitioners were the respondents before the Armed Forces Tribunal, Kolkata Bench, wherein the present respondent was the applicant.

2. The Armed Forces Tribunal (hereinafter referred to as ‘Tribunal’), Kolkata Regional Bench has set aside the order rejecting the applicant’s claim for disability element. The Tribunal has held the applicant entitled to grant of disability element of disability pension at 20% by rounding it off to 50% for life from the day next to the date of his discharge from service i.e. 28.02.2021 after being rounded off as per ratio of judgment of the Supreme Court in Civil Appeal No. 418 of 2012 in the case of Union of India vs. Ram Avtar decided on 10.12.2014.

3. As a consequence, the Tribunal has directed that the due and admissible arrears be calculated and released to the applicant within a period of 3 months from the date of receipt of certified copy of the order failing which the due amount has been directed to be paid with interest @8% per annum from the date of the order passed by the Tribunal till realisation of the entire amount.

4. The learned Counsel for the Union of India has assailed the Tribunal’s findings and directions mainly on the grounds:

 That the petitioner has claimed the disability element of disability pension based on an injury which was sustained in peace time and not during combat.

 The injury was sustained at his home while shifting luggage. The injury was thus neither attributable to nor aggravated by military service.

 The Release Medical Board has also opined that the injury was not attributable or aggravated by military service.

 Opinion of the Medical Board being opinion of an expert body is entitled to be given due weight, value and credence.

 The Tribunal has relied on decision of the Apex Court in the case of Dharamvir Singh vs. Union of India and Others reported in (2013) 7 SCC 316 which is not applicable to the facts and circumstances of the present case.

 The learned Counsel submits that the Apex Court in Dharamvir Singh (supra) held that since at the time of petitioner’s entry in military service he was not suffering from such a disease, therefore, it can only be said that the injury/ disability has been acquired while in military service. The decision in the case of Dharamvir Singh (Supra), however, does not apply to the present case wherein the consideration regarding claim of disability pension was required to be decided under the Entitlement Rules for Casualty Pensionary Awards to Armed Forces Personnel, 2008 (hereinafter referred to as the “2008 Rules”) whereas judgment of the Apex Court being relied upon was rendered in respect of a claim under the earlier Entitlement Rules for casualty Pensionary Awards to Armed Forces Personnel, 1982 (hereinafter referred to as “1982 Rules”). There is a substantial change in the parameter for considering the claim regarding admissibility to disability element of disability pension between the 1982 Rules and 2008 Rules. The case of Dharamvir Singh (supra) covers “disease”. The judgment does not apply to a claim like the present one wherein the claim is based on “injury”. The judgment of the Apex Court in the case of Dharamvir Singh (Supra), therefore, would not be applicable for considering the petitioner’s claim and decision of the Tribunal based thereon, is unsustainable.

5. The petitioners have taken a stand that the applicant while serving the 113 Inventory Infantry Battalion (TA) Rajput was placed in low medical category for the