The court established that ex-servicemen with disabilities over 20% are entitled to disability pensions, emphasizing the presumption of service connection and the burden of proof on medical authorities.

JUDGMENT

Amit Rawal, J.

1. This order shall dispose of six writ petitions ie., WP(C) No.818 of 2024, WP(C) No.16857 of 2024, WP(C) No.16862 of 2024, WP(C) No.23112 of 2024, WP(C) No.2458 of 2024 filed by the Union of India and WP(C) No.43207 of 2023 filed by Havildar Anil Kumar NS against the order of the Armed Forces Tribunal.

2. The question involved in all the cases is whether the ex-service men who have been discharged or superannuated from service for having disability more than 20% would be entitled for disability pension or not.

3. Government of India initially came out with a regulation called ' Pension Regulations for the Army 1961'. The Primary conditions for the grant of disability pension is enumerated in regulation 173 which provides that unless otherwise specifically provided, a disability pension consisting of service element and disability can be granted to an individual invalidated out of service on account of a disability attributable to or aggravated by military service in non-battle casualty and assessed as 20%, what is deduced from regulation 173 is, for entitlement of disability pension, an individual/armed force personal must have 20% disability. Whereas Regulation 179 envisages the situation with regard to entitlement or otherwise disability at the time of retirement or discharge. It is pertinent to mention here retirement would be on the date of superannuation/discharge before attaining the age of superannuation. Regulation 173 and 179 reads as under:

‘173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military service in_non-battle casualty and is assessed 20 percent or over The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II’

‘179. An individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or attaining the age of 50 years irrespective of their period of engagement), if found suffering from a disability attributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalided out of service and shall be granted disability pension from the date of retirement. if the accepted degree of disability is less than 20 per cent or more and service element if the degree of disability is less than 20 per cent. The service pension/service gratuity. if already sanctioned and paid, shall be adjusted against the disability pension/service element. as the case may be. (2) The disability element referred to in clause (1) above shall be assessed on the accepted degree of disablement at the time of retirement/ discharge on the basis of the rank held on the date on which the wound/injury was sustained or in the case of disease on the date of first removal from duty on account of that disease, Note: In the case of an individual discharged on fulfilling the terms of his retirement, his unwillingness to continue in service beyond the period of his engagement should not effect his title to the disability element under the provision of the above regulation.’

4. On co-joint reading of the aforementione