The disability pension is contingent upon demonstrable evidence that a disability is attributable to or aggravated by military service, with the medical board's findings being central to determining entitlement.

ORDER

(Order of the Court was made by S.M.Subramaniam J.)

Under assail is the order dated 19.04.2022 passed in O.A.No.69 of 2021 on the file of the Armed Forces Tribunal, Regional Bench, Chennai.

2. The Union of India represented by the Secretary, Ministry of Defence is the writ petitioner before this Court.

3. The first respondent ex-service man instituted Original Application before the Armed Forces Tribunal (hereinafter referred as AFT) challenging the validity of the order dated 19.11.2020. The Tribunal allowed the disability claim of the first respondent relying on the Judgment of the Hon’ble Apex Court in Dharamvir Singh vs. Union of India and Others reported in (2013) 7 SCC316

4. The facts in nut shell not seriously disputed between the parties would reveal that the first respondent was enrolled in Indian Army on 29.11.1986 and discharged on 31.10.2004 after rendering 17 years 11 months and 2 days of qualifying service. The first respondent was granted service pension. The first respondent was re-enrolled in Defence Security Cops (herein after referred as DSC) on 30.10.2009 and released on 31.10.2019.

5. The first respondent claimed disability element of pension. Release Medical Board assessed the disabilities (i) Stroke-Right Hemiparesis Left Thalamic Infarct (ii) Primary Hypertension and (iii) Type-2 Diabetes Mellitus and the Board assessed the disability @ 20%, 30% and 20% for life respectively and opined the IDs as neither attributable to nor aggravated by military service.

6. The Release Medical Board opined that IDs as neither attributable to nor aggravated by military service. Therefore, the petitioners have declined to consider the claim of the first respondent for grant of disability pension. Thus, the Original Application came to be instituted.

7. The learned Counsel for the petitioners would mainly contend that the Release Medical Board considered the nature of disability and opined that the IDs as neither attributable to nor aggravated by military service. However, the Tribunal granted disability pension relying on the Judgment of the Hon’ble Apex Court in Dharamvir Singh's case cited supra, which would not have any direct application with reference to the facts and rules applicable as far as the petitioner is concerned.

8. As per the rule which came into force in the year 2008, the Medical Board’s opinion became final, unless the employee could able to produce incriminating evidence rebutting the medical board’s opinion. In the present case, the release medical board’s opinion was not disputed. Therefore, the Tribunal has committed an error in granting disability pension.

9. In 2008 rules, the presumption factor was deleted and the Dharamvir Singh’s case was decided based on the presumption factor and based on the old rule of the year 1961. Therefore, the said Judgment ought not to have been relied upon by the Arms Tribunal for granting the relief of disability pension in favour of the first respondent. When the rule underwent change and new rule came into force, the Judgment delivered based on the old rule need not be relied upon. Thus, the present writ petition is to be considered.

10. Mr.A.Q.Choudhury, learned counsel appearing on behalf of the first respondent would strenuously oppose by stating that the legal principles settled in Dharamvir Singh’s case is in force. Therefore, the Tribunal has rightly approached the issues relying on the legal principles. The burden of proof is on the side of the officials. Therefore, it is to