(Prayer : Petition filed under Article 226 of the Constitution of India seeking issuance of a writ of certiorarified mandamus to call for the impugned order passed by the 6th respondent dated 24.10.2024 vide OA No.165 of 2022 with MA 248 of 2022 and quash the same and consequently direct the respondents to grant Disability pension with effect from 1st June 2021 at 30 percent for life which shall be broad-banded or rounded off to 50 percent as per existing orders.)
G. Arul Murugan, J.
1. Embittered by an order dated 24.10.2024 passed by the Armed Forces Tribunal rejecting the claim of the petitioner seeking disability pension, the present writ petition is filed.
2.1. The nub of the matter runs thus: The petitioner retired from the Indian Army on 31.5.2021 after rendering service of 34 years, 5 months and 4 days. Prior to his superannuation, on 28.5.2021, the Release Medical Board assessed the disability of the applicant due to Hypertension at 30% for life, but opined that the disability is neither attributable to nor aggravated by military service. The decision of the Release Medical Board denying disability pension was communicated on 20.9.2021.
2.2. Questioning the said order, the petitioner preferred a First Appeal before the Appellate Committee on First Appeals claiming that the petitioner is suffering hypertension owing to adverse service conditions with stressful job nature and, therefore, he is entitled to claim disability pension. The First Appeal was rejected on 10.2.2022 holding that the disability was neither attributable to nor aggravated by military service.
2.3. The Second Appeal preferred by the petitioner as against the aforesaid order was rejected by order dated 19.7.2022, affirming the order passed in the first appeal.
2.4. Assailing the order dated 19.7.2022, the petitioner approached the Armed Forces Tribunal, which, by order dated 24.10.2024, upheld the orders passed by the authorities below. Hence, the present writ petition.
3.1. Mr.Ram Pranav, learned counsel for the petitioner, vehemently contended that the petitioner had served over 34 years in the Indian Army and was consistently assigned to high pressure and demanding appointments throughout his service and the Release Medical Board, in its report, has expressly acknowledged the adverse impact of stress and strain on the petitioner’s medical condition and the observations of the Officiating Deputy Commandant and the Chief Instructor, as referred to in the report of the Release Medical Board, unequivocally affirm that the petitioner’s duties entailed severe and exceptional stress and strain, but the said observations were not given due credence while rejecting the claim of the petitioner.
3.2. It is further submitted that the twin conditions delineated in Rule 10(b) of the Entitlement Rules for casualty Pensionary Awards to Armed Forces Personnel, 2008 that the disease had arisen during the period of military service; and that the disease had been caused by the condition of his employment are satisfied and, therefore, denial of disability pension to the petitioner is unjust and unreasonable and is far removed from the settled proposition of law propounded by the Supreme Court to the effect that disabilities arising during service are to be presumed as attributable to or aggravated by military service unless proved otherwise. To buttress the said submission, reliance is placed on the decision of the Supreme Court in Dharamvir Singh v. Union of India((2013) 7 SCC 316).
3.3. Referring to Regulation 423(a) of the Regulations for the Medical Services of Armed Forces, 2010, learned counsel for the petitioner submits that for the purpose of determining whether the cause of a disability is or is not attributable to service, it is immaterial whether the cause giving rise to the disability occurred in an area declared to be field Service/Active Service area or under normal peace condition and, therefore, the petitioner, who was commanding a Battalion of recruit training at Lucknow during Covid 19, is eligible for disability pension.
3.4. To fortify his submissions, learned counsel for the petitioner relied upon the decision of the Supreme Court in Union of India and others v. Angad Singh Titaria((2015) 12 SCC 257) and a decision of the Armed Forces Tribunal, Lukcnow in Naba Kumar Chandra v. Union of India(Order dated 4.10.2021 in O.A.No.237 of 2021).
4.1. Refuting the aforesaid submissions, Mr.V.Chandrasekaran, learned Senior Panel Counsel, appearing on behalf of respondent Nos.1 to 5, submitted that, in the case on hand, the petitioner was diagnosed with “Primary Hypertension” while he was serving at peace station and the grant of disability pension should be based on strict interpretation of attributability/aggravation of the disease while serving the nation in extreme conditions and/or field operation, etc.
4.2. Distinguishing the decision of the Supreme Court in Dharamvir Singh (supra), it is contented that the said decision pertains to the claim of disability pension of a Soldier, who was diagnosed with “Epilepsy” and invalidated in the year 1994. The said decision referred to the Entitlement Rules in force during 1994. However, after 2008, the Entitlement Rules have been amended and as per the new Rules applicable, the disability shall be conceded aggravated by service, only if the disease is worsened by specific condition of military service such as posted in place of extreme climatic conditions, etc. In the case on hand, the petitioner was served at a peace station and, therefore, the aggravation cannot be ascribed to military service.
4.3. To bolster his arguments in support of the order passed by the Tribunal, learned counsel relied upon the decision of the Supreme Court in the case of Narsingh Yadav v. Union of India((2019) 9 SCC 667), wherein, while considering the case of a person who was discharged from service as he was suffering from “schizophrenia”, after referring to the decision in Dharamvir Singh (supra), the claim was rejected holding that the disease of schizophrenia could not have been detected at the time of enrollment.
4.4. The Release Medical Board, after considering the disability, opined that it is neither attributable to nor aggravated by military service. In view of the Release Medical Board opinion, the claim for disability pension was rejected. Further appeals also came to be rejected. The Tribunal, by considering the amended new Rules, had rightly rejected the claim. He further submitted that similar claims had been dismissed by this Court, which has also been confirmed by the Hon’ble Supreme Court.
5. Considered the rival submissions and perused the materials available on record.
6. The petitioner who got enrolled in the Indian Army on 29.12.1986, after serving more than 34 years, got superannuated from service on 31.05.2021 in low medical category. He is in receipt of his regular service pension. Prior to his superannuation, the Release Medical Board assessed the disability of the petitioner due to Primary Hypertension at 30% for life but opined that the disability was neither attributable to nor aggravated by military service.
7. The personal statement in Part-II of the Release Medical Board gives the service details of the petitioner, which read as follows:-
PART II
PERSONAL STATEMENT
1. Give details of service (P=Peace OR F=Field/Operational/ Sea service) *
(Copy of paramount card and part-ll orders for service in Fd/Mod Fd/CI Ops/HAA/sea service/operational area/Others for the indl undergoing RMB to be att)
8. The Release Medical Board has given the opinion in Part-VII, which is as under:-
PART VII
OPINION OF THE MEDICAL BOARD
| Disability | Attributable to service (Y/N) | Aggravated by service (Y/N) | DETAILED JUSTIFICATION |
| PRIMARY HYPERTENSION (1-10) | No | No | The disability was first detected on 12/05/2021 in peace area with no relevant history of stress and strain. Hence the disability consider neither attributable to military service nor aggravated by military service. Ref para 43 chapter vi of GMO 2008 (MP) |
10. Now, the grant of disability element pension is covered under the New Pension Regulations for the Army 1961 (Part-I). It is useful to refer to Regulations 37 and 53 of the New Regulations, which read as under:-
“DISABILITY ELEMENT IN ADDITION TO RETIRING PENSION TO OFFICER RETIRED ON ATTAINING THE PRESCRIBED AGE OF RETIREMENT
37 (a) An Officer who retires on attaining the prescribed age of retirement or on completion of tenure, if found suffering on retirement, from a disability which is either attributable to or aggravated by military service and so recorded by Release Medical Board, may be granted in addition to the retiring pension admissible, a disability element from the date of retirement if the degree of disability is accepted at 20% or more.
(b) The disability element for 100% disability shall be at the rate laid down in Regulation 94 (b) below. For disabilities less than 100% but not less than 20%, the above rates shall be proportionately reduced. Provisions contained in Regulation 94(c) shall not be applicable for computing disability element.”
“DISABILITY ELEMENT FOR DISABILITY AT THE TIME OF DISCHARGE / RETIREMENT
53 (a) An individual released/retired/discharged on completion of term of engagement or on completion of service limits or on attaining the prescribed age (irrespective of his period of engagement), if found suffering from a disability attributable to or aggravated by military service and so recorded by Release Medical Board, may be granted disability element in addition to service pension or service gratuity from the date of retirement/discharge, if the accepted degree of disability is assessed at 20 percent or more.
(b) The disability element for 100% disability shall be at the rate laid down in Regulation 98(b) below. For disabilities less than 100% but not less than 20%, the above rates shall be proportionately reduced. Provisions contained in Regulation 98(c) shall not be applicable for computing disability element.”
11. The Entitlement Rules for Casualty Pensionary Awards to Armed Forces Personnel, 2008, deals with medical test at entry into service, onus of proof and attributability. It is useful to refer to Rules 5, 7 and 10, for easy reference:-
“5. Medical Test at entry stage:
The medical test at the time of entry is not exhaustive, but its scope is limited to broad physical examination. Therefore, it may not detect some dormant disease. Besides, certain hereditary constitutional and congenital diseases may manifest later in life, irrespective of service conditions. The mere fact that a disease has manifested during military service does not per se establish attributability to or aggravation by military service.”
“7. Onus of proof:
Ordinarily the claimant will not be called upon to prove the condition of entitlement. However, where the claim is preferred after 15 years of discharge/ retirement/ invalidment/ release by which time the service documents of the claimant are destroyed after the prescribed retention period, the onus to prove the entitlement would lie on the claimant.”
“10. Attributability:
(a) Injuries:
In respect of accidents or injuries, the following rules shall be observed:
(i) Injuries sustained when the individual is 'on duty', as defined, shall be treated as attributable to military service, (provided a nexus between injury and military service is established).
(ii) In cases of self-inflicted injuries while 'on duty', attributability shall not be conceded unless it is established that service factors were responsible for such action.
(b) Diseases:
(i) For acceptance of a disease as attributable to military service, the following two conditions must be satisfied simultaneously:-
(a) that the disease has arisen during the period of military service, and
(b) that the disease has been caused by the conditions of employment in military service.
(ii) Diseases due to infection arising in service other than that transmitted through sexual contact shall merit an entitlement of attributability and where the disease may have been contracted prior to enrolment or during leave the incubation period of the disease will be taken into consideration on the basis of clinical course as determined by the competent medical authority.
(iii) If nothing at all is known about the cause of disease and the presumption of the entitlement in favour of the claimant is not rebutted, attributability 'should be conceded on the basis of the clinical picture and current scientific medical application.
(iv) When the diagnosis and/or treatment of a disease was faulty, unsatisfactory or delayed due to exigencies of service, disability caused due to any adverse effects arising as a complication shall be conceded as attributable.”
12. In view of 10(b) of the Entitlement Rules for Casualty Pensionary Awards to Armed Forces Personnel, 2008, the disease shall be accepted as attributable to military service only if the disease has arisen during the period of military service and has been caused by the conditions of employment in military service for the grant of disability pension. Further as per the new regulations, the grant of disability pension shall be based on the opinion recorded by the Release Medical Board during release/retirement about the disability suffered or aggravated due to military service and assessed at more the 20%.
13. The Release Medical Board has listed out the details of service rendered by the petitioner, which shows that except for 2 years, the petitioner had served throughout in peace areas. Further, the ailment was diagnosed only on 12.05.2021, when the petitioner was serving in the peace area.
14. The bone of contention of the learned counsel for the petitioner is by placing reliance on the decision in Dharamvir Singh’s case regarding presumption and by an endorsement made by the commanding officer that the petitioner’s service during Covid-19 involved stress.
15. The decision in Dharamvir Singh’s case was rendered prior to the new Regulations coming into force and the provisions under the Entitlement Rules for Casualty Pensionary Awards to Armed Forces Personnel, 2008. The Hon’ble Supreme Court in the case of Ex CFN Narsingh Yadav vs. Union of India and Others reported in (2019) 9 SCC 667, held that each claim regarding disability pension has to be examined in respect of the duties assigned to that individual that may have led to stress and strain. Unless there is strong medical evidence on record to dispute the opinion of the Medical Board, the same cannot be ignored, as Courts are not possessed of expertise to dispute such report. Relevant paragraphs read as follows:
“18. Therefore, each case has to be examined whether the duties assigned to the individual may have led to stress and strain leading to Psychosis and psychoneurosis. Relapsing forms of mental disorders which have intervals of normality and Epilepsy are undetectable diseases while carrying out physical examination on enrolment, unless adequate history is given at the time by the member.
19. Therefore, each case has to be examined whether the duties assigned to the individual may have led to stress and strain leading to Psychosis and psychoneurosis. Relapsing forms of mental disorders which have intervals of normality and Epilepsy are undetectable diseases while carrying out physical examination on enrolment, unless adequate history is given at the time by the member. Even if he was suffering from any mental disorder prior to enrolment, the same could not be detected as there were intervals of normality. The appellant was posted in peace station as a Vehicle Mechanic. Neither the nature of job nor the place of posting was such which could have caused stress and strain leading to disability as attributed to or aggravated by military service.
20. In the present case, clause 14(d), as amended in the year 1996 and reproduced above, would be applicable as entitlement to disability pension shall not be considered unless it is clearly established that the cause of such disease was adversely affected due to factors related to conditions of military service. Though, the provision of grant of disability pension is a beneficial provision but, mental disorder at the time of recruitment cannot normally be detected when a person behaves normally. Since there is a possibility of non-detection of mental disorder, therefore, it cannot be said that Schizophrenia is presumed to be attributed to or aggravated by military service.
21. Though, the opinion of the Medical Board is subject to judicial review but the Courts are not possessed of expertise to dispute such report unless there is strong medical evidence on record to dispute the opinion of the Medical Board which may warrant the constitution of the Review Medical Board. The invaliding Medical Board has categorically held that the appellant is not fit for further service and there is no material on record to doubt the correctness of the Report of the invaliding Medical Board.”
16. Again, in the case of Union of India vs. Ex Sep R.Munusamy reported in 2022 Live Law (SC) 619, the Hon’ble Supreme Court after considering the Dharamvir Singh’s case, held that the presumptive factor cannot be applied in a routine manner and further also held that the Tribunal cannot sit in appeal over the expert opinion of Medical Board, which found that the disability suffered was not attributable to or aggravated by military service. In the said decision, the Hon’ble Supreme Court has observed thus:
“16. The Tribunal does not sit in appeal over the expert opinion of a Medical Board holding that the disability suffered by a soldier was not attributable to or aggravated by military service. There was no reason for the Tribunal not to accept the opinion of the Release Medical Board held on 30th January 1997 and no reasons have been disclosed. In the absence of any finding of infirmity in the decision making process adopted by the Release Medical Board, there could be no reason to direct the constitution of a Resurvey Medical Board, and in any case, not after two decades from the date of discharge.
.....
25. What exactly is the reason for a disability or ailment may not be possible for anyone to establish. Many ailments may not be detectable at the time of medical check-up, particularly where symptoms occur at intervals. Reliance would necessarily have to be placed on expert medical opinion based on an in depth study of the cause and nature of an ailment/disability including the symptoms thereof, the conditions of service to which the soldier was exposed and the connection between the cause/aggravation of the ailment/disability and the conditions and/or requirements of service. The Tribunal patently erred in law in proceeding on the basis of a misconceived notion that any ailment or disability of a soldier, not noted at the time of recruitment but detected or diagnosed at the time of his discharge or earlier, would entitle the soldier to disability pension on the presumption that the disability was attributable to military service, whether or not the disability led to his discharge, and the onus was on the employer to prove otherwise, which the Appellants in this case had failed to do.
17. A Coordinate Bench of this Court in the case of Union of India v. The Registrar, Armed Forces Tribunal, by order dated 07.03.2025 in W.P.No.23491 of 2024, considered the issue regarding grant of disability element of pension under the new Regulations when the Review Medical Board had opined that the disability is neither attributable to nor aggravated by military service.
18. Following the decisions in Ex CFN Narsingh Yadav’s case and Ex Sep R.Munusamy’s case, the Division Bench held that the presumptive factor cannot be applied in a routine manner so as to grant disability pension to all the cases. Each case is to be considered on case-to-case basis and the facts should be ascertained, whether such disability is attributable to military service or otherwise. Further, when the High Court is not an expert body, it cannot substitute its opinion especially for the medical reports. The relevant portion of the said decision is extracted hereunder:
“19. In the context of the above Judgments, the facts of each case and the legal principles are to be considered. Let us now consider the principles laid down in Dharamvir Singh’s case cited supra. The issue considered by the Hon'ble Apex Court was, whether the disability which, each one of the respondents suffered was attributable to or aggravated by military service. In this context, the Hon’ble Supreme Court made an observation that the deterioration of health is normally presumed due to military service unless medical records available on record are otherwise. It is presumed that at the time of appointment, the Army man was fit and appointed. Therefore, deterioration of health is to be attached to the military service rendered and therefore, the disability pension should be consequential.
20. Pertinently, in Dharamvir Singh’s case, the Hon’ble Supreme Court held that from Rule 14(b) Old Pension Regulation of the Entitlement Rules, it is clear that if the medial opinion was to hold that the decease suffered by the members of the armed forces would not have been detected prior to service, the medical board must state the reasons for saying so. Admittedly, the disability pension is a beneficial provision and to be interpreted liberally, so as to benefit those who have been sent home with disability, even before they completed their tenure in the armed forces. However, the eligibility criteria is to be fixed based on the rules and the medical records. The disability pension, even as per the Dharamvir Singh’s case cannot be automatic, but subject to assessment by the Release Medical Board and the conditions stipulated in the rules. It is further observed by the Hon’ble Apex Court that denial of disability pension can be justified on the ground it must be affirmatively proved that the decease had nothing to do with the service. However, the burden to establish such a disconnect would lie heavily upon the employer or otherwise the rule raised the presumption.
21. Thus, the spirit of the Judgment is unambiguous. The Judgment says that if the decease had nothing to do with the services, then, the employer has to prove the factum. If the burden of proof is not discharged by the employer, then, the presumption shall go in favour of the employee. A soldier cannot be asked to prove that the decease was on account of military service or was aggravated by the same.
22. The above narration of the principles on Dharamvir Singh’s case would abundantly make it clear that the disability pension is not automatic, but to be considered based on the rule as well as the medical report by the Release Medical Board. Even the Arms Tribunal has to consider the facts with reference to the principles laid down in Dharamvir Singh’s case. The presumptive factor cannot be applied in a routine manner so as to grant disability pension to all the cases. Each case is to be considered on case-to-case basis and the facts should be ascertained, whether such disability is attributable to military service or otherwise. The presumption would not give a conclusive right to get disability pension. Presumption is the principle applicable in the event of department not discharging its duty to establish that the disability is not attributable to military service.
23. At the outset, this Court is of the considered opinion that disability pension is a welfare provision, which is to be extended to the applicable cases. However, such disability pension cannot be granted automatically merely based on certain presumptions and assumptions. Pension regulation contemplates eligibility for disability element of pension and one of the condition is that the disability is attributable to military service and the burden of proof is also shifted to the employer to establish the medical report of the Release Medical Board.
24. As observed by the Hon’ble Apex Court in subsequent Judgments, High Court not being an expert body, cannot substitute its opinion especially in medical reports. Even, in the event of submitting an incriminating documents disputing the medical reports, the course left open to the Courts are to refer the matter to the Review Medical Board, and the High Court cannot substitute its opinion on the medical reports.”
19. It is brought to the notice of this Court that the SLP preferred against the above order of the Coordinate Bench has been dismissed by the Hon’ble Supreme Court, confirming the said decision.
20. In such circumstances, the entitlement of the disability pension is dependant upon the eligibility under the relevant rules and the opinion of the Release Medical Board. Presumptive factor comes in only when the department fails to establish that the disability is not attributable to military service and the same cannot be applied mechanically to assume eligibility, ignoring the medical opinion. As per the Entitlement Rules, for acceptance of a disease as attributable to military service, the disease ought to have arisen during the period of military service and caused by the conditions of employment in military service, which is recorded by the medical board at the time of discharge/retirement.
21. The decisions relied on by the petitioner are mainly based on the provisions of 1961 Regulations and Entitlement Rules 1982. There has been a change in the provisions of 2008 Regulations and Entitlement Rules 2008, where there is a paradigm shift in respect of presumption and onus of proof. Admittedly when the petitioner has retired on 31.05.2021 under the new Regulations and Entitlement Rules 2008, the grant of the disability pension would be governed under the new Regulations and the decisions relied on do not support the case of the petitioner.
22. The Release Medical Board has made the clinical assessment and observed that the petitioner was incidently detected with high BP while serving in peace location at Lucknow on 12.05.2021. All other readings and parameters were found normal and the Board has observed that on physical examination the disability has neither deteriorated nor improved from the time of detection and opined that the disability is not attributable to military service. The petitioner while challenging the decision of the department taken based on the medical opinion has not come out with any material or a strong case to differ from the opinion of the Medical Board, even to seek for a review.
23. The Tribunal, while considering the issue, had taken note of the service details of the petitioner that except for 2 years from 1997 to 1999, the petitioner had predominantly served in peace areas and held that the disability of Hypertension detected on 12.05.2021 was neither attributable to nor aggravated due to military service. Further when any duty and even normal life during the covid period was stressful, the endorsement of the commanding officer that the duty during covid was stressful cannot be taken to be a cause for the detection of disability primary hypertension that is attributable to military service.
24. When the Release Medical Board had opined that the disability primary hypertension detected in the year 2021 while working in peace area, is neither attributable to nor aggravated by military service, the Tribunal had rightly by taking note of the provisions under the new Regulations rejected the claim. We see no error or infirmity to interfere in the orders passed by the Tribunal.
25. Accordingly, this writ petition stands dismissed. There shall be no order as to costs.