SHARMA, J. - (1.) THE petitioner joined defence service in Rajput Regiment on July 8, 1979 as a Sepoy but was discharged on July 23, 1981. THErefore the petitioner got reemployment on July 1, 1983 in Defence Security Corps and was discharged because of invalidation on June 2, 1989. THE petitioner in the instant writ petition claims the disability pension.
(2.) ON Notice of motion, the respondent have filed their written statement and the board facts have not been denied. It has been placed that while serving in DSC the petitioner was hospitalised on July 7, 1987 and was diagnosed to be suffering from NEUROSIS. ON August 30, 1986 the petitioner was involved in a scuffle. The petitioner was thoroughly examined by legally constituted invaliding medical board and it was opined by the Board on May 1, 1989 that the petitioner be invalided out of service due to the following disabilities- (a) Depressie, Neurosis (old) (b) Stab Injury Chest (left) It was further opined by the Medical Board that the above disabilities of the petitioner were neither attributable to nor aggravated by military service but were constitutional in nature not related to army Service. The disability pension claim of the petitioner was rejected by the Chief Controller of Defence Accounts (Pension) Allahabad vide letter dated march 20, 1990. The petitioner was not entitled to disability pension but invaliding benefits admissible to him were paid. I have given my anxious consideration to the rival submission. Learned counsel for the respondents during the course of oral submissions placed before me the report dated May 1, 1989 of Invaliding Medical Board. In part III column I of the said report it has been categorically stated that the disability sustained by the petitioner never existed before entering service. Contents of column No. 5 of the said report are as under- Disability Percentage of Disablement Probable duration of degree of disablement Composite Assessment all disabilities. 1. DEPRESSIVE NEUROSIs 30% Two Years 50% (Fifty present) 2. STAB INJURY CHEST (LT.) 30% Meaningful question that requires consideration is whether the petitioner who was discharged from service on the ground of Depressive Neurosis and Stab Injury Chest (Lt.) is entitled to disability pension. To answer this core question, statutory provisions that require to be noticed are Para 423 (c) of the Regulations of the Medical Service of Armed Forces Act, Regulations 173 of the Pension Regulations and Rule 7 (b) of Appendix II to Pension regulations. Regulation 173 of Pension Regulations read thus- " Unless otherwise specifically provided a disability pension may be granted to an individual who is invalidated from service on account of a disability which is attributable to or aggravated by military service and is assessed at 30% or over. "
(3.) RULE 7 (b) of Appendix II (Entitlement RULEs) reads as under- " (a) In respect of disease, the following rules shall be observed- (b) A disease which has led to an individual discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of individual's acceptance for military service. However, if medical opinion hold, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. " Clause (c) of para 423 of the Regulations of the Medical Services of Armed Forces Act provides thus- (c) The cause of disability or death resulting from a disease as attributable to service when it is established that the disease arose during service on the conditions and circumstances of the disease, case in which it is established that the service conditions did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will be regarded as aggravated by the service. A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in Service if no notice of it was made at the time of the individual's acceptance for Service in the Armed Forces. However, if medical opinion holds, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. A close look at the aforequoted provisions demonstrates that if no note of disease was made at the time of individual's acceptance for Military Service or no note of it was made at the time of his discharge that the disease was such as could not have been detected on medical examination prior to his acceptance for service, the disease will be deemed to have arisen during service. ;