Maj Bhawani Singh Versus Union of India & Ors
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1 IN THE ARMED FORCES TRIBUNAL, REGIONAL BENCH, JAIPUR :JUDGMENT : SUB MAJ BHAWANI SINGH VERSUS UNION OF INDIA & ORS. TRANSFER APPLICATION NO.262 OF 2009 In the matter of SBCW No.5105 of 2005 Transferred to this Tribunal vide order Dated 19.1.2009. ::: DATE OF JUDGMENT : 18TH AUGUST,2010. PRESENT HON’BLE MR. JUSTICE BHANWAROO KHAN [J] HON’BLE LT GEN SUSHEEL GUPTA [A] Mr. R.S. Bhaduria for the applicant. Col Veerendra Mohan for the non-applicants. BY THE TRIBUNAL:[PER BHANWAROO KHAN (J)] 1. The applicant, who was enrolled in the Indian Army on 9th August, 1961 and was discharged from service on 1st May, 1993 after completion of the term of his engagement, filed a writ petition initially before the Rajasthan High 2 Court, Bench at Jaipur, claiming relief regarding grant of disability pension and the same stood transferred to this Tribunal vide order dated 19 th November, 2009 for disposal and was treated as a Transfer Application. 2. The admitted facts of this case are: that the applicant was enrolled in the Indian Army on 9 th August, 1961 and was discharged from service after completion of the term of his engagement in medical category CEE (P). Prior to his discharge from service, he was brought before the Release Medical Board, which assessed his disability ‘Diabetes Mellitus-250’ at 30% for two years and considered it as neither attributable to nor aggravated by military service. The claim of the applicant for grant of disability pension was submitted to the Principal Controller of Defence Accounts (Pension), Allahabad, who rejected the claim of the applicant vide his order dated 18 th May, 1993. Hence this application. 3. The non-applicants filed a detailed reply and have admitted the above facts. However, it was submitted that 3 since the disability of the applicant was considered to be neither attributable to nor aggravated by military service, the applicant is not entitled to disability pension and since he has completed the term of his engagement, he is being paid service pension. It was submitted that after rejection of his claim, the applicant did not filed any appeal within the stipulated period. He submitted a representation on 10 th November, 2003, which was rejected vide order dated 27 th April, 2004. According to the non-applicants, at the time of enrolment, the applicant was physically fit but the Recruiting Medical Officer could not detect certain disabilities, which are constitutional in nature and such diseases may erupt after a period of time. The Release Medical Board held that the disability is not connected with service conditions and as such, it assessed the disability as neither attributable to nor aggravated by military service. In these circumstances, the applicant is not entitled to disability pension as per Regulation 173 of the Pension Regulations for the Army, 1961. 4 4. We have heard Mr. R.S. Bhaduria, the learned counsel for the applicant and Col Veerendra Mohan, Officer Incharge (Legal) for the non-applicants and have carefully gone through the record of the case. 5. It is an admitted fact that the applicant was subjected to Release Medical Board at the time of his discharge after completion of the term of his engagement of service and was found to have been suffered from ‘Diabetes Mellitus- 250’. His disability was assessed at 30% but not connected with his military service. The representation filed by the applicant was also rejected by the non-applicants. 6. It was argued by Mr. R.S. Bhaduria, the learned counsel for the applicant that at the time of enrolment, no note was appended by the Medical Officer that the applicant was suffering from the disability detected, hence as per Appendix II appended to the Pension Regulations for the Army, 1961, it can safely be inferred that the disability of diabetes is attributable to military service. In support of this contention, he has placed reliance on a decision of the 5 Punjab & Haryana High Court in Vir Vogya Dutt Vs. UOI & Ors. (2002{1}Forces Law Judgments-44), wherein it was held that when no deformity was found by the Medical Officer at the time of recruitment of the petitioner in Army Service, it has to be inferred that the disease of diabetes suffered by the petitioner is attributable to service. It was, therefore, submitted by the learned counsel for the applicant that in such a situation, though the applicant has completed his term of engagement, he is entitled to disability pension. 7. On the other hand, it was pleaded by Col Veerendra Mohan, Officer Incharge (Legal) for the non-applicants that if at the time of recruitment, no note was appended about the disability of the applicant detected by the Release Medical Board, it cannot be inferred that the disability is attributable to military service, though a presumption can be raised that the disability arose during the service but until and unless, it is established that the disease bears a casual connection with the service, one cannot become entitled for grant of disability pension. 6 8. We have considered the rival submissions made at the bar on behalf of both the parties and have also gone through the record of the case very carefully. 9. Regulation 173 of the Pension Regulations for the Army, 1961 deals with primary conditions for the grant of disability pension and it clearly provides that disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 percent or more. Regulation 179 deals with disability at the time of retirement/discharge and it provides that on completion of tenure or of service limits, if an individual is suffering from a disability attributable to or aggravated by military service then he may be granted in addition to service pension admissible a disability element as if he had been retired on account of the disability at the discretion of the President. 7 10. In the case of Union of India & Ors. Vs. Keshar Singh (Civil Appeal No.762 of 2001), while considering the provisions of 7(a),(b) and (c) of Appendix-II appended with the Pension Regulations for the Army and further the provisions of Regulation 173 of the Pension Regulations for the Army and Medical Services Regulations. While considering all these, the Hon’ble apex court has observed that unless the disability detected has a casual connection with the military service and is assessed at 20% or more, disability pension cannot be allowed to an individual. 11. In Controller of Defence Accounts (Pension) Vs. S. Balachandran Nair (2005{13} SCC -129) it was observed that opinion of the Medical Board that the disability suffered by the individual was not attributable to service cannot be substituted by the court in order to arrive at a contrary finding and where a Medical Board found that there was absence of proof of the injury/illness having been sustained due to service or being attributable thereto, the direction given by the High Court to grant disability pension was not correct. 8 12. It was held by their lordships of the Supreme Court in the case of Secretary, Ministry of Defence & others v. A.V. Damodaran’s case (supra) that the report of the Medical Board is not under challenge and as has been held by the court, such opinion of the Medical Board would have primacy and, therefore, it must be held that the learned Single Judge and the Division Bench of the High Court were not justified in allowing the claim of the respondent. 13. While going through the judgments of the Apex Court, cited by the learned counsel for the non-applicants, we find that it has been a consistent view of the Apex Court that opinions expressed by the Medical Board cannot be replaced or substituted by the opinion of the court unless the circumstances compels to take a contrary view to the opinion expressed by the Medical Board. In the instant case, the Release Medical Board has concurrently held that the disability suffered by the applicant is neither attributable to nor aggravated by military service and there is nothing on record, which establishes that the disability 9 suffered by the applicant is attributable to or aggravated by military service. The consistent view of the Medical Board about the attributability or aggravation cannot be replaced by the court in absence of the opinion about the casual connection of disability with that of service. Hence, the judgment cited by the learned counsel for the applicant is of no avail to him. Hence, the application lacks merit and deserves to be dismissed. 14. In this view of the matter, we find no merit in this application and it is hereby dismissed with no order as to costs. (Lt Gen Susheel Gupta)A. (Bhanwaroo Khan) J. .