P. Sam Koshy, J.

1. The instant writ petition has been filed by the petitioner under Article 227 of the Constitution of India seeking for a writ, order or direction more particularly in the nature of a Writ of Certiorari by calling for the records relating to Order in O.A.No.123 of 2021 with M.A.No.122 of 2021, dated 08.11.2023, passed by the Armed Forces Tribunal, Regional Bench, Chennai (Circuit Bench), Hyderabad, (for short, ‘the Tribunal’) and to quash the same by declaring it as illegal, and without jurisdiction; and consequently, to set aside the same.

2. Heard Mr. Arvind Kumar Kata, learned Senior Standing Counsel for Central Government, for the petitioners; and Mr. N. Ravi Chaudhari, learned counsel for the respondent.

3. Vide the impugned order, the Tribunal allowed the O.A. filed by the respondent herein and directed the petitioners herein to grant benefit of Disability Element of Disability Pension @ 50% with the benefit of broad banding from 50% to 75% w.e.f. 01.07.2018 for life, and further directed the petitioners herein to pay arrears to the respondent within a period of 12 weeks from the date of receipt of a copy of the order, failing which, the arrears shall carry interest @ 8% from the actual date of payment.

4. The brief facts of the case are that the respondent herein is an officer working under the Indian Air Force as a Group Captain. He was commissioned in the Indian Air Force in June, 1995. While working with petitioner No.2 on the said post of Group Captain and when he was posted at Suratgarh, the respondent suffered with a stroke, viz., “Stroke in Young Ischemic Right MCA Territory”, which under the medical parlance was classified as S1H1A1P4E1 [T-24] for Right MCA Territory Ischemic Infarct with Left Hemiparesis (Stroke in Young). The respondent was examined medically periodically for the disability that he suffered from the said stroke and was placed in permanent medical category, viz., A4G3(P), vide order dated 21.12.2005. However, the respondent stood released from the services of the Indian Air Force on attaining the age of superannuation on 30.06.2018. In order to get the Disability Element of Disability Pension, the respondent had issued a legal notice through its counsel to the petitioner-Department on 26.04.2019 which came up for consideration before the petitioner- Department, which in turn rejected the said request vide Annexure-P.15, dated 20.05.2019. It is this order dated 20.05.2019 passed by the petitioners rejecting the respondent’s claim for Disability Pension which led to filing of O.A.No.123 of 2021 before the Tribunal. The Authorities while rejecting the claim of respondent found the respondent to be suffering from Individual Disability [I.D.] viz., “Stroke in Young Ischemic Right MCA Stroke”. This disability, according to the petitioners, was neither attributable to nor aggravated by the service. The Release “Medical Board” (for short ‘RMB’) of the petitioners assessed the individual disability of the respondent to be at 50% for life on 04.06.2018. Thereafter, the respondent preferred a First Appeal in August, 2018 followed by a legal notice on 26.04.2019. It is this legal notice which stood replied vide correspondence dated 20.05.2019 refusing to entertain the appeal which was under challenge before the Tribunal.

5. Learned Senior Standing Counsel for Central Government, for the petitioners, assailing the order, primarily contended that when the respondent is said to have been suffered with stroke on 02.04.2004, he was posted at Peace Station (Suratgarh); since he was posted at Peace Station (Suratgarh) at the time of onset of the Individual Disability, there was no exceptional service related to physical or mental stress which was assessed taking into consideration his previous 14 days charter on duty and therefore the allowing of O.A. by the Tribunal was not proper; the respondent if at all was aggrieved of the order dated 20.05.2019 rejecting his Disability Pension, he had an option of preferring a Second Appeal where his case could still had been further considered by the experts in the field to reach to a correct assessment which he did not prefer; and now the respondent straightaway approached the Tribunal by filing O.A.No.123 of 2021; the Tribunal, knowing fully well that there is a statutory provision of filing Second Appeal available to the respondent, was not justified in entertaining the appeal.

6. Learned Senior Standing Counsel for the Central Government further contended that though at the time of commission in the Air Force the respondent was found fit medically in the Medical Classification A1G1; however, much later in the service career in the medical evaluation of the respondent, it was detected that the respondent had elevated levels of Homocysteine. It was also noted that the respondent was also a smoker. According to learned Senior Standing Counsel for the Central Government, Homocysteine is synergistic with hypertension and smoking is addictive with other risk factors that predispose to peripheral arterial disease. It was further contended that the respondent suffers from a genetic, inborn error of metabolism that was exacerbated by smoking; this inborn error of metabolism must have resulted in disability and the cause of smoking must have added to the risk factor for the said element, and it was for all these reasons that RMB reached to the conclusion that the cause for the said disability was neither attributable to nor aggravated by any sort of service related stress and the finding of the Tribunal therefore be set aside.

7. Learned Senior Standing Counsel for the Central Government further contended that the Tribunal’s reliance on the decision in the case of Dharamvir Singh vs. Union of India (2013 (7) SCC 316) was also incorrect for the reason that Dharamvir boarding out of service was long before Dharamvir has reached the age of superannuation. Whereas, in the instant case, the respondent stood released from service only on crossing the age of superannuation after rendering his full total service of 33 years.

8. Learned Senior Standing Counsel for the Central Government relied heavily on the decision of the Hon’ble Surpeme Court in the case of Naveen Yadav vs. Union of India ((2019) 9 SCC). Learned Senior Standing Counsel for Central Government contended that the Tribunal has also erred inasmuch as re-appreciating the expert opinion released by the RMB as if it were sitting on the order of the medical board as an appellate body, which according to him, was totally impermissible. According to the learned Senior Standing Counsel for Central Government, the Tribunal did not have the competence and expertise to determine whether the nature of disability suffered by the respondent was attributable to or aggravated by the nature of services rendered by him.

9. Learned Senior Standing Counsel for Central Government also challenged the impugned order on the ground that the Tribunal has disbelieved the findings released by the RMB or has not accepted the findings of the RMB without there being any other second opinion obtained from any other medical board or from any other experts on the field of medicine and therefore, the finding arrived at by the Tribunal can be safely held to be a perverse finding liable to be set aside / quashed.

10. In support of his contentions, the learned Senior Standing Counsel for Central Government referred to the judgment of the Hon’ble Supreme Court in the case of Union of India vs. Ex Scp R. Munuswamy (2022 SCC OnLine SC 892).

11. Per contra, the learned counsel for the respondent contended that all the grounds raised by the learned Senior Standing Counsel for the Central Government, have been duly dealt with by the Hon’ble Supreme Court in the case of Dharamvir (supra) and it is for this reason that the Tribunal did not find any force in the submissions put forth by the Union of India before the Tribunal while allowing the O.A. It was further contended that there is no dispute to the fact that when the respondent was initially commissioned in the Indian Air Force as a fighter pilot, his medical examination brought him under the medical category A1 G1 which is otherwise the highest medical category in the armed forces, and it was only thereafter that the respondent was selected for the post of fighter pilot in the Indian Air Force. He continued to have an excellent medical track record till 22.01.2004. It was further contended that during his service period between 1985-2004, the respondent had completed 3138 hours as a fighter pilot flying HJT 16, Jaguar, TS-11, Mi-8, Mi-17 and Mi- 35 helicopters, and MiG 21 FL, MiG 21 Bis, and MIG 29 fighter aircraft till he suffered with the unfortunate stroke in the year 2004. When he suffered that stroke, he was working as a Commander of the squadron for the past 18 months.

12. Learned counsel for the respondent also highlighted the fact that the respondent suffered the “Stroke in Young Ischemic Right MCA Stroke” while he was at the Airforce station at Suratgarh, which again is a forward base. It was contended that even though he was at the forward base and it was peacetime, but the nature of services which the respondent was holding, required him to have operational training continuously on daily basis.

13. According to the learned counsel for the respondent, it is anybody’s guess that the nature of duties discharged by a fighter pilot requires tremendous agility, both physical as well as mental, and in order to maintain the mental and physical agility, it takes a lot of time, stress and strain for a fighter pilot to maintain himself and in the process the physical condition of the respondent and similarly placed persons is put to great amount of pressure, stress and strain and which must have definitely resulted in the respondent suffering from the stroke during the intervening night of 21&22.01.2004.

14. Having heard the contentions put forth on either side and on perusal of records, the point which needs to be considered at this juncture is the reliance on the judgment of Dharamvir (supra) by the Tribunal in the course of allowing the O.A. filed by the respondent herein. In the case of Dharamvir (supra) the Hon’ble Supreme Court in very categorical terms had reached to the conclusion that a safe presumption has to be derived while reaching to the conclusion that the physical and mental condition of the defence personnel entering service to be very sound. Further, the medical examination or the medical report which provided him the fitness certificate entailing appointment in the armed forces would go to show that there was no disabilities or disease noted or recorded at the time of entry in service. Any disease or disability that the defence personnel suffers while in service, the presumption should always be in favour of the personnel attributing it to the strenuous nature of duty and service that the personnel renders.

15. The Hon’ble Supreme Court in the case of Dharamvir (supra) relied upon its earlier decision in a similar backdrop in the case of Union of India vs. Keshar Singh ((2007) 12 SCC 675), wherein it was held that ordinarily it has to be presumed that the defence personnel was not suffering from any disease or disability while entering into the service and that the disability which a defence personnel had suffered from, has in fact arisen on account of the strenuous nature of services, unless there is a specific finding at the time of entry into the service. According to the said judgment, the presumption should always go in favour of the defence personnel claiming for disability pension presuming that the disability had occurred in the course of discharge of the duties with the armed force. It was also held that the burden of proof would always be upon the employer to conclusively hold that the disability suffered by the defence personnel cannot under any circumstances occur because of any amount of stress and strain caused to the personnel while serving with the armed force; as it has to be presumed that the concerned defence personnel was hale and healthy, and in the best of his health without any trace of any disability or disease in spite of medical examination at the time of entry in service and also the periodical medical examination undergone.

16. If we consider the facts of the present case with the findings arrived at by the Hon’ble Supreme Court in the case of Dharamvir (supra) it would clearly reveal that the respondent was commissioned in the year 1985, worked for the Indian Air Force as a fighter pilot for 20 years, and in the process had gained an experience of flying various categories of aircrafts and fighter planes for over a period of 3138 hours. All these would clearly suggest the fitness that the respondent had during his 20 years service. However, the respondent abruptly suffered a stroke on the intervening night of 21&22.01.2004. During the said period he was posted at the forward base at Suratgarh. The service record of the respondent would also show that the respondent being posted at the forward base was regularly undertaking the operational training, and for which reason also there is a great element of physical and mental stress and strain incurred by the respondent. Moreover, in the instant case the respondent at the time of entry into the service had the best category of medical fitness, more particularly that which is required for a fighter pilot i.e. A1 G1 and if there has been any deterioration that has arisen to the fitness of the respondent, it can be safely attributed to the stress and strain associated with the nature of service, which in the instant case is that of a fighter pilot required to perform with utmost precision and in order to be agile and alert, both physical and mental, it requires a lot of bodily pressure.

17. Thus, basing upon the judgment of Dharamvir (supra), the findings arrived at by the Tribunal under challenge in the present Writ Petition cannot be found fault with, nor can it be said to be perverse or contrary to law. The present Writ Petition thus being devoid of merit, deserves to be and is accordingly dismissed.

18. As a sequel, miscellaneous petitions pending if any in this Writ Petition, shall stand closed.