- (1.) HEARD Sri S. K. Posti, Advocate for the petitioner and A. S. G. for the re spondents.
(2.) BY the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 30-11-1977 and order dated 30-3-1981 passed by the respondents no. 1 and 3 respec tively. Briefly stated the petitioner was employed in Indian Army on 4-3-1969 and was deputed in the Artillery Regi ment. During Indo-Pak war in 1971, ac cording to the petitioner, due to explo sion his ear were badly damaged and his hearing capacity was reduced. The pe titioner was got admitted in Military Hos pital at Udhampur but his hearing ca pacity could not be restored. The peti tioner served the nation with best of his ability and he was awarded two service medals. The petitioner was invalidated out of service on /-9-1977. The peti tioner applied for disability pension, but the respondents rejected Iris claim on the ground that the disability is not attrib utable to the military service. Thereaf ter the petitioner preferred an appeal to the Ministry of Defence, Government of India. The appellate authority vide or der dated 30-3-1981 rejected the appeal of the petitioner reiterating the same ' grounds. Feeling aggrieved the petitioner has preferred the present petition. Counter affidavit has been filed by the respondents. The respondents have submitted that the petitioner was enrolled in the Army on 4th March 1969. While serving with the Unit he was placed in Medical Category CEE (Tem porary) for six months w. e. f. 28th Sept. 1976 due to 'bilateral Conduct Deafness Otosczierosis'. On expiry of above period he was brought before a medical board to assess cause, nature and degree of disability of the petitioner. The medical board has opined that above disability was neither attributable to nor aggra vated by military service and recom mended him to be invalided out of serv ice in Medical Category 'eee' (Perma nently unfit for military service ). The petitioner was invalidated out of service under Rule 13 item III (iii) of Army Rule 1954. The total service of the petitioner was 8 years and 187 days only.
(3.) FROM the record it appears that the petitioner has 8 years in the Army. At the time of his recruitment he was hale and hearty and he was not found suffering from any constitutional disease and there is nothing in his service record that at the time of his enrolment in military service he was suffering form any kind of disease. He has undergone scru pulous training after recruitment and he also took part in games and extra curricular activities. The ailment suffered to him during his service in the Army and as such according to the petitioner the disease is attributed to military service and he is entitled for disability pension. It has been held by the Apex Court in the case Madan Singh Shekhawat vs. Union of India and oth ers (2000) 1 UPLBEC 3471, as under : "the grant of disability pension is governed by the various Rules found in Defence Services Regulations: Rule 10 of the said Rules reads thus: "casual leave counts as duty except as provided for the Rule 11 (a ). " As per this Rule when an army per sonnel is on casual leave, same is counted a duty unless he comes under any one of the exceptions under Rule 11 (a) of the Rules. It is not the case of the respondents that the appellant comes under any such exceptions. Therefore, as per rule 10 (a), the appellant was on duty at the time of the accident. Rule 48 of the said Regulation con templates admissibility of disability pen sion. It has enumerated various cases under which an army personnel is enti tled to the grant of disability pension. Rule 48 reads thus : "disability pension when admissible an officer who is retired from mili tary service on account of a disabil ity which is attributable to or aggra vated by such service and is assessed at 20 per cent or over may, on re tirement, be awarded a disability pen sion consisting of a service element and a disability element in accordance with the regulations in this section. The question of disability pension came up for consideration in the case Mahavir Singh Ratuat us. Union of India and others 2001 (l)A. W. C. 363 it has been held as under : "the case of the petitioner for dis ability pension is squarely covered by the provisions of para 173 of the Pension Regulations. It reads as fol lows : "173. Unless otherwise specifically provided a disability pension may be granted to an individual who is invali dated from service on account of disability which is attributable to or ag gravated by military service and is as sessed at 20 per cent or over. The question whether a disability is attributable to or aggravate by military service shall be determined under the rules in Appendix II. " This provision requires that invalida tion from the military service should be on account of disability which is attrib utable to or aggravated by the military service and the same shall be deter mined under the Entitlement Rules con tained in Appendix II. The Entitlement Rules provide for the manner of award of disability pension. Rule 2 (a) provides that disablement will be accepted as due to military service provided. it is certified that the disablement is due to a disease which is attributable to military service or which existed before or arose during the military service and has been and remains aggravated thereby. This rule means that an employee who has been boarded out may suffer from a particu lar disease but if it aggravated after en tering service resulting in his discharge from service due to the disability, it will entitle him to claim disability pension. It shows that even a disease contracted prior to the entry into service can be a basis to claim disability pension provided it aggravated after the entry into serv ice. . . . . . . . . Now it would be appropriate to advert to the other important rule regard ing awarding of the disability pension in respect of illness. It is Rule 7, which may for the same of clarity, be extracted in extenso: "7. In respect of disease, the follow ing rules will be observed : Cases, in which it is established that conditions of military service did not determine or contribute to the onset of the disease but influenced that the subsequent course of the disease, will fall for acceptance on the basis of ag gravation. (b) A disease which has led to an in dividual's discharge or death will or dinarily be deemed to have arisen in service if no note of it was made at the time of the individual's acceptance for military service. However, if medi cal opinion holds, for reasons to be stated, that the disease could not have been detected on medical ex amination prior to acceptance for service the disease will not be deemed to have arisen during service. (c) If a disease is accepted as having arisen in service, it must also be estab lished that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circum stances of duty in military service. (d) In considering whether a particu lar disease is due to military service, it is necessary to relate the estab lished facts, in the aetiology of the disease and of its normal develop ment, to the effect that conditions of service e. g. exposure, stress, climate, etc. may have had on its manifesta tion. Regard must also be had to the time factor (also see Annexure ). (i ). . . . . . . . (ii) Common disease known to be af fected by stress and strain- This should be decided with due reference to the nature of the duties an indi vidual has had to perform in military service. It may be that in some cases the individual had been engaged on sedentary duties when they will nor mally not qualify. " An analysis of the above provisions with regard to the award of the disabil ity pension, in true perspective, leaves no room for doubt that an employee who has been invalidated is entitled to disability pension even if he was suffer ing from the disease prior to his enrol ment in service but it aggravated due to stress and strain of the duties while in employment. The benefit of reasonable doubt shall always be extended in favour of the boarded out employee if a claim for disability pension is made and it is established that at the time of enrolment in service he was not having any ailment of the type for which he has been invali dated. ";