BHANDARI, J. - (1.) BY this writ petition, a challenge has been made to the orders dated 21. 8. 1996, 16. 10. 1998 and 17. 4. 2000 whereby and whereunder the petitioner's request for grant of disability pension was declined. Prayer of the petitioner is to seek disability pension w. e. f. 8. 3. 1986 along with interest and compensation of Rs. 1,50,000/ -.
(2.) IT is contended that the petitioner was enrolled in Army on 24. 12. 1994 in medical category `a' as he was fully fit and did not suffer from any disease. The petitioner was thereafter invalided from services w. e. f. 7. 3. 1996, after determining him in medical category `e' due to Affective Psychosis with 40% disability. Petitioner's disability pension claim was rejected firstly vide order dated 21. 8. 1996 on the ground that the petitioner's disability is neither attributable to nor aggravated due to military services. Petitioner preferred an appeal against the aforesaid order, but the appeal thereupon was also rejected. Petitioner thereafter preferred another appeal to higher authority, but the said appeal was also rejected. Learned counsel for the petitioner submits that denial of disability pension to the petitioner is wholly illegal in view of the fact that petitioner having sustained crush injury of middle finger, was admitted in hospital and while treating the same, it was found that petitioner is suffering from Affective Psychosis and thereupon he was invalided from service. It is also contended that the aforesaid disease was due to stress and strain thereby the petitioner is entitled for disability pension as per Rule 173 of the Pension Regulation for Army (hereinafter referred to as `the Regulation', for shot ). It is urged that as per Appendix-II, Rule 4, 7 (a) and (b), petitioner having suffered from Affective Psychosis, was required to be extended benefit of disability pension, inasmuch as, opinion of the medical board to hold that the disease is not attributable to or aggravated due to military services, is not correct as medical board failed to give detail opinion so as to hold it to be a case of constitutional disorder. Referring to the rules as well as several judgments on the issue, the prayer of the learned counsel for the petitioner is to accepted the writ petition and grant the relief as prayed therein. The judgments so cited by learned counsel for the petitioner would be referred and discussed in the latter part of this judgment. Learned counsel for the respondents, on the other hand, submits that the claim of the petitioner for grant of benefit of disability pension is not acceptable in view of the opinion of the medical board, it is a case where disease was not attributable to and aggravated due to the military services so as to attract provisions of Section 173 of the Regulation. It is further urged that Appendix-II, Rules 4, 7 (a) and 7 (b) are required to be read in totality and not in isolation so as to claim benefit of disability pension. Learned counsel for the respondents submits that the petitioner has not even challenged the opinion of the medical board, thus in the absence of a challenge to the opinion of the medical board, the petitioner is not entitled to any relief. Referring to the prayer clause, it is specifically shown that there is no prayer in the prayer clause to the effect that the opinion of the medical board should be held to be improper, incorrect or invalid either due to the procedural irregularity or otherwise. Referring to judgments of the Hon'ble Apex Court, learned counsel for the respondent submits that in the absence of a challenge to the opinion of medical board, the petitioner is not entitled to any relief. I have considered the rival submissions of the parties and scanned the matter carefully. The facts which not in dispute are that the petitioner was enrolled in Army on 24. 12. 1994 on finding fully fit and was not noted to have suffered any disease. While the petitioner was under basic military training with Rajputana Rifles Regiment Centre, he was admitted in Army Hospital, Delhi Cantt on 18th October, 1995 for psyctristric evaluation of his behaviour as it was observed to be abnormal. After various examinations and investigations and after taking opinion of neurophysician, the petitioner was declared to suffering from Affective Psychosis. Prior to his admission in Army Hospital, Delhi Cantt on 18. 10. 1995, the petitioner was earlier admitted to AH on 9. 10. 1995 where petitioner remained hospitalized till 14. 10. 1995 due to crush injury of middle finger. According to the statement of fact made in the writ petition specifically in para 2, petitioner fell ill due to stress and strain of military services and was invalided from services, as other than this, the petitioner has not stated any other fact giving reason to the disease resulting in petitioner's invalidation from service. In the background of the facts aforesaid, now the matter is required to be looked into as to whether the petitioner is entitled for disability pension as per the provisions of the Regulation or not.
(3.) THE case of the petitioner is that the disease of Affective Psychosis is due to stress and strain of military services, thus as per Rule 173 of the Regulation, the matter is required to be examined regarding the claim of the petitioner. For ready reference, Regulation 173 is quoted hereunder:-      " Regulation - 173: Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided from service on account of disability which attributable to or aggravated by military service and is assessed at 20% or over. THE question whether a disability is attributable to or aggravated by military service shall be determined under the rules in Appendix-II. " Bare perusal of the aforesaid Regulation reveals that disability pension would be granted to the individual on his invalided from service on account of disability which is attributable to and aggravated by military service. For that purposes, Appendix-II attached to Regulation is quite material. Part 4 of Appendix-II provides that the issue of entitlement would be decided based on evidence, direct and circumstantial and while doing so, benefit of reasonable doubt will be given to the claimant. Paras 7 (a) to (d) are also relevant and material, thus same are quoted hereunder for ready reference:-      " (a) Cases, in which it is established that conditions of military service did not determined 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. (b) A disease which has led to an individual's discharge or death will ordinarily 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 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. (c) If a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. (d) In considering whether a peculiar disease is due to military service, it is necessary to relate the established facts, in the etiology of the disease and of its normal development, to the effect that conditions of service i. e. , exposure, stress, climate, etc. may have had on its manifestation. Regard must also be had to the time factor. " According to learned counsel for the petitioner, Para 7 (b) of the Regulation has already been taken into consideration in various judgments and based on said para, the benefit of disability pension was allowed. In that regard, learned counsel for the petitioner first made a reference of the judgment in the case of Tara Chand Jat vs. Union of India & Ors. decided on 14. 9. 2001 in D. B. Civil Special Appeal No. 423/2001 reported in WLC 2002 (5) 107. According to learned counsel for the petitioner, not only the issue involved in the present matter, but all the judgments on subject matter have been taken into consideration by the Division Bench of this Court while accepting the appeal granting benefit of disability pension to the appellant therein. Looking to the fact that much reliance has been placed on the judgment in the case of Tara Chand Jat (supra), I am first considering the aforesaid judgment. ;