Hemant Gupta, J. - (1.) CHALLENGE in the present writ petition is to an order passed by the Armed Forces Tribunal, Chandigarh Regional Bench at Chandimandir (for short 'the Tribunal') on 07.02.2013, whereby an Original Application filed by the petitioner for grant of disability pension remained unsuccessful.
(2.) THE petitioner was enrolled in Indian Navy as Boy on 13.01.1973. He was granted rank of Sea II with unpaid seniority w.e.f. 03.07.1974. Thereafter, he was promoted as Sea I on 03.04.1977, but invalidated out of service on medical grounds on 28.03.1978. The assertion of the petitioner is that at the time of joining the service, he was found medically fit and was placed under Medical Category AYE. He was medically examined at regular intervals and every time was found medically fit in AYE category. It was in September, 1977, when the petitioner was posted at INS Angre, he became unconscious during Physical Training Parade. The petitioner was subsequently diagnosed to be suffering from 'Epilepsy Temporal Lobe LT'. He was downgraded to medical category EEE (P) by a duly constituted Medical Board and invalidated out of service on 28.03.1978 without pensionary benefits. The Tribunal dismissed the Original Application on the ground that the Invalidating Medical Board has found that the disease was neither attributable to or aggravated by military service and was assessed as constitutional in nature. Therefore, the petitioner is not entitled to the disability pension.
(3.) LEARNED counsel for the petitioner relies upon a Division Bench judgment of this Court in CWP No. 7277 of 2013 titled 'Ex. Naik Umed Singh Vs. Union of India & others' decided on 14.05.2014, wherein it has been held that unless the Review Medical Board records a finding that the disease could not be detected at the time of entry into military service, the disease will be deemed to be attributed to or aggravated by military service. Reliance is made to the following extract: In terms of Regulations contained in Appendix II, the Armed Forces personnel are not to prove the conditions of entitlement of pension. They are entitled to receive the benefit of doubt [Clause 9]. In terms of Clause 14, once it is established that conditions of military service did not determine or contribute to the onset of the disease, but influenced the subsequent course of the disease will fall for acceptance on the basis of aggravation. But if the medical opinion finds that the disease could not have been detected on medical examination prior to acceptance of service, disease will not be deemed to have arising during service [(Rule 14(b)]. Thus, if the Medical Board has not opined that disease could not have been detected on medical examination prior to acceptance of service, opinion of the Medical Board that the disease is not attributable or aggravated by military service would be contrary to the statutory regulations and, thus, the report of the Medical Board would be susceptible and liable to be set aside. In that eventuality, it will not be a case of setting aside the report of the Medical Board only for the reason that in exercising of power of judicial review, another view is being taken but such report will be set aside for the reason that it does not satisfy the parameters specified in the Regulations and the instructions. Thus, in cases where the Medical Board does not disclose the reasons that disease could not have been detected on medical examination prior to acceptance of service, the cause of discharge from armed forces, will be deemed to be aggravated or attributable to military service.;