$~51 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 19.12.2024 + W.P.(C) 14636/2024 & CM APPL. 61441/2024 UNION OF INDIA & ORS. .....Petitioners Through: Mr. Shankar Kumar Jha, Adv.

Major Anish Muralidhar, Army versus COL SHASHANK SIHORKAR RETD .....Respondent Through: Mr. I.S. Yadav, Adv.

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA HON'BLE MS. JUSTICE SHALINDER KAUR SHALINDER KAUR, J (ORAL)

1. Mr. Shankar Kumar Jha, learned counsel for the petitioners submits that his appearance was not recorded in the Order dated

09.12.2024.

2. In view of the submission made, in the Order dated 09.12.2024 the appearance of Mr. Shankar Kumar Jha shall be deemed to be duly recorded as appearing for the petitioners.

3. The present petition has been filed by the petitioners to assail the Order dated 01.11.2023 (Impugned Order) passed by the learned Armed Forces Tribunal, Principal Bench, New Delhi (Tribunal) in Original Application (O.A) No. 90/2020 titled Col. Shashank Signature Not Verified Digitally Signed Sihorkar (Retd.) vs. Union of India and Others, whereby the learned Tribunal granted disability element of pension in respect of the disability of the respondent herein viz., “Primary Hypertension” @ 30% for life rounded off to 50% from the date of respondent’s discharge from the service.

4. On 11.06.1988, the respondent was commissioned in the Indian Army and retired from service on 31.01.2017, upon attaining the age of superannuation.

5. The Release Medical Board (RMB) was constituted at the time of his retirement on 25.08.2016, and vide its report dated 21.09.2016, opined that the respondent was suffering from disability @ 30% Primary Hypertension (ICD-I10.0) for life. It opined that his medical condition was aggravated by service and was connected with service. It opined that though the onset of said medical condition occurred in peace area but after its onset, he had served in a Counter-Insurgency Operations (CI ops) area. However, the Competent Authority, rejected the respondent's claim for disability pension vide Order dated 21.11.2016, observing that the disability did not fulfill the eligibility condition as per existing rules/provisions.

6. Thereafter, the first appeal of the respondent against the rejection of his claim for disability element of pension was rejected vide Order dated 18.04.2019.

7. Being aggrieved by this, the respondent preferred his second appeal, which also came to be rejected vide Order dated 20.02.2020, observing that the onset of disability was in peace station and there is Signature Not Verified Digitally Signed no evidence of exceptional stress and strain of service in the instance case. Hence, it was held that the disability is neither attributable to nor aggravated by military service in terms of the Paragraph 43, Chapter VI, Guide to Medical Officers, 2002, as amended in 2008.

8. The respondent challenged the said findings by the petitioners before the learned Tribunal and claimed disability element of pension. 9. The learned Tribunal, relying upon the decision in the case of Dharamvir Singh vs Union of India & Ors., (2013) 7 SCC 316 and quoting the Entitlement Rules for Casualty Pensionary Awards to the Armed Forces Personnel, 2008, concluded that the petitioner is entitled for the grant of disability element of pension in respect of disability “Primary Hypertension” for life which is rounded off to 50% for life with effect from the date of his discharge and further granted interest @ 6% per annum, if petitioners fails to pay arrears within three months from the date of receipt of copy of order by the petitioners herein. This has led to filing of the present writ petition by the petitioners.

10. The learned counsel for the petitioners contends that the grant of disability element of pension is not governed by the eligibility conditions as per Regulation 81(a) of Pension Regulations for the Army, 2008 (Part I), since the respondent is not invalidated out of service, but rather he had superannuated.

11. He fu