An applicant must establish a disability's relation to military service to qualify for a pension under applicable rules.

Johnson John, J.

The writ petitioner was the applicant in O.A. No. 58 of 2024 before the Armed Forces Tribunal, Regional Bench, Kochi. His application against non grant of disability element of pension for the disability ‘primary hypertension’ was dismissed by the Tribunal and the same is under challenge.

2. Heard Sri. Sathyanathan V.K., the learned counsel for the writ petitioner and Smt. Sanjana R. Nair, the learned Central Government Counsel appearing for the respondents.

3. The learned counsel for the writ petitioner argued that the writ petitioner was enrolled in the Indian Army on 24.04.1990 and he was placed in the low medical category on 03.10.2013, while serving at Visakhapattanam for the disease ‘primary hypertension’ and subsequently, he retired from service on 31.5.2020 on completion of terms of enrolment. It is argued that his application for disability element of pension was dismissed for the reason that the disability was neither attributable to nor aggravated by the military service.

4. The learned counsel for the writ petitioner argued that in view of Rule 9 of the Entitlement Rules for Casualty Pensionary Awards , 1982, the applicant cannot be called upon to prove the conditions of entitlements, and that a conjoint and harmonious reading of Rules 5, 9 and 14 of Entitlement Rules (supra), shows that it is to be presumed that a member have been in sound, physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance and in the event of his being discharged from service on medical grounds at any subsequent stage, it must be presumed that any such deterioration in his health which has taken place is due to such military service.

5. The learned Central Government Counsel appearing for the respondents argued that the opinion of the Medical Board on the question whether the disability is attributable to or aggravated by military service must be respected and that the opinion expressed by medical experts could not be lightly brushed aside and in this connection, she relied upon the decisions of the Honourable Supreme Court in Union of India and Ors. v. Keshar Singh (2007) 12 SCC 675 , Om Prakash Singh v Union of India and Ors. /b>. (2010) 12 SCC 667 , Secretary, Ministry of Defence and Ors. v. A. V Damodaran (Dead) through LRs. and Ors. (2009) 9 SCC 140 and Union of India and Ors. v. Ram Prakash (2010) 11 SCC 220 ).

6. Regulation 37 of the Pension Regulations for the Army, Part-I (2008) regarding disability element of pension at the time of retirement, reads thus:

“DISABILITY ELEMENT IN ADDITION TO RETIRING PENSION TO OFFICER RETIRED ON ATTAINING THE PRESCRIBED AGE OF RETIREMENT

37. (a) An Officer who retires on attaining the prescribed age of retirement or on completion of tenure, if found suffering on retirement, from a disability which is either attributable to or aggravated by military service and so recorded by Release Medical Board, may be granted in addition to the retiring pension admissible, a disability element from the date of retirement if the degree of disability is accepted at 20% or more.

(b) The disability element for 100% disability shall be at the rate laid down in Regulation 94 (b) below. For disabilities less than 100% but not less than 20%, the above rates shall be proportionately reduced. Provisions contained in Regulation 94(c) shall not be applicable for computing disability element.”

7. In Annexure A2 opinion of the Release Medical Board on the question as to why the disease is not related to service as per job profile and place of posting, it is stated as follows:

“Onset of ID was on 10 Sep. 2013 at Visakhapatnam (AP), Indl was serving in peace area at the tim