published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40493
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4949 OF 2013
(arising out of SLP(C)No. 6940 of 2010)
DHARAMVIR SINGH …. APPELLANT
VERSUS
UNION OF INDIA & ORS. ….RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted.
2. This appeal has been preferred by the appellant against
the judgment dated 31st July, 2009 in LPA No.26 of 2004
passed by the Division Bench of the High Court of Himachanl
Pradesh, Shimla whereby the Division Bench allowed the
appeal preferred by the Union of India and set aside the
judgment dated 20th May, 2004 passed by the learned Single
Judge in Civil Writ Petition No.660 of 2004.
3. The questions involved in this case are:Page 2
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(i) Whether a member of Armed Forces can be presumed
to have been in sound physical and mental condition
upon entering service in absence of disabilities or
disease noted or recorded at the time of entrance.
(ii) Whether the appellant is entitled for disability
pension.
4. The factual matrix of the case is as follows:
The appellant was enrolled as Sepoy in the Corps of
Signals of the Indian Army on 15th June, 1985. Having
rendered about 9 years of service in Indian Army he was
boarded out of the service with effect from Ist April, 1994
on the ground of 20% permanent disability as he was found
suffering from “Genrealised seizure (Epilepsy)". The
Medical Board of Army opined that the "disability is not
related to military service". On the basis of disability
report, no disability pension was granted to him and when
the appellant preferred representation the respondents
rejected such prayer by an order dated 12th December, 1995
on the ground that the disability suffered by the appellant
was neither attributable to nor aggravated by the military
service. Page 3
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5. The appellant approached the High Court of Himachal
Pradesh in Civil Writ Petition No.660 of 2004 seeking a
direction to respondents to grant disability pension with
effect from 1st April, 1994. Learned Single Judge by
judgment dated 20th May, 2004 on observing that there was
nothing on record to show that the appellant was suffering
from any disease at the time of his initial recruitment in
the Indian Army held that the disease would be deemed to be
attributable to or aggravated by the Army services.
Therefore, in terms of Regulation 173 of Pension
Regulations for the Army, 1961 the appellant is eligible
for disability pension. Learned Single Judge allowed the
writ petition and directed the respondents to grant
disability pension to the appellant as per rules with
effect from the date he was invalidated out of service and
to pay the entire arrears of pension within three months
else they shall be liable to pay interest on such arrears
at the rate of 9% per annum.
6. The Union of India challenged the decision of the
learned Single Judge before the Division Bench of the High
Court of Himachal Pradesh in LPA No.26 of 2004. On behalfPage 4
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of the Union of India it was contended that
disease“generalized seizure" was constitutional in nature
and the same has not been found by the ReSurvey Medical
Board attributable or aggravated by military service. It
was also contended that the learned Single Judge had not
taken into consideration the relevant law while allowing
the petition. The Division Bench referring to a judgment
of this Court in Union of India and others vs. Keshar
Singh, (2007) 12 SCC 675, and Rule 7 as noticed in the said
judgment held as follows and set aside the order passed by
the learned Single Judge:
“The respondent was discharged from the
military after being placed in Low Medical
Category (CEE). The Resurvey Medical Board
had opined the disability of the respondent
neither attributable nor aggravated military
service. He was found suffering from
‘generalised seizure’. The learned Single
Judge has purportedly referred to paragraph
7(b) of AppendixIIas referred to in
Regulation 48, 173 and 185 while coming to
the conclusion that the respondent was not
suffering from the disease on account of
which he was invalidated out of the service
at the time of his initial recruitment in
the Indian Army. However, the learned Single
Judge has omitted to take note of paragraph
7(c) of AppendixII as referred to in
Regulation 48, 173 and 185 of the Pension
Regulations for the Army, 1961(PartI).Page 5
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The legal position raised in this Letters
Patent Appeal is no more res integra in view
of law laid down by their Lordships of the
Hon'ble Supreme Court in Union of India &
Ors. Versus Keshar Singh, 2007 (4) SLR 100.
Their Lordships of the Hon'ble Supreme Court
were also seized of the matter wherein the
Medical Board had given a clear opinion that
the illness was not attributable to military
service. In this case also the soldier has
developed schizophrenia. Their Lordships of
the Hon'ble Supreme Court have held as
under:
“In support of the appeal learned
Additional Solicitor General submitted
that both learned Single Judge and the
Division Bench have lost sight of para
7(c). Both 7(b) and 7(c) have to be
read together. They read as follows:
“7(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 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.
7(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.”Page 6
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A bare reading of the aforesaid provision
makes it clear that ordinarily if a disease
has led to the discharge of individual it
shall 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. An exception, however, is carvd
out, i.e. if medical opinion holds for
reasons to be stated that the disease could
not have been detected by Medical
Examination Board prior to acceptance for
service, the disease would not be deemed to
have arisen during service. Similarly,
clause (c) of Rule 7 makes the position
clear that if a disease is accepted as
having arisen in service it must also be
established that the condition of military
service determined or contributed to the
onset of the disease and that the conditions
are due to the circumstances of duty in
military service. There is no material
placed by the respondent in this regard.
In view of the legal position referred to
above and the fact that the Medical Board's
opinion was clearly to the effect that the
illness suffered by the respondent was not
attributable to the military service, both
the learned Single Judge and the Division
Bench were not justified in their respective
conclusion. The respondent is not entitled
to disability pension. However, on the facts
and circumstances of the case, payment
already made to the respondent by way of
disability pension shall not be recovered
from him. The appeal is allowed but in the
circumstances without any order as to
costs.”
The disease developed by the petitioner i.e.
‘generalised seizore' is constitutional inPage 7
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nature and the Resurvey Medical Board had
specifically opined, as noticed above, that
the disability was neither attributable nor
aggravated by the military service. The
opinion of the Resurvey Medical Board has
to be given primacy.
Accordingly, the learned Single Judge has
erred in law by allowing the writ petition
only on the basis of plain reading of
paragraph 7(b) of AppendixIIas referred to
in Regulation 48, 173 and 185 of the Pension
Regulation for the Army, 1961 (PartI). He
has omitted to see clauses 7(c) of Appendix
IIof the Pension Regulations for the Army,
1961 (PatI).
Consequently, in view of the observation
made hereinabove, the Letters Patent Appeal
is allowed. The judgment of learned Single
Judge is set aside. No costs.”
7. Learned counsel for the appellant contended that the
Entitlement Rules for Casualty Pensionary Awards, 1982 have
been made effective w.e.f. Ist January, 1982 and the set of
rules is required to be read in conjunction with the Guide
to Medical Officers (Military Pension), 1980. Referring to
Rule 423(c) it was submitted that the cause of disability
or death resulting from a disease will be regarded as
attributable to service when it is established that the
disease arose during service and the conditions and
circumstances of duty in the Armed Forces determined andPage 8
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contributed to the onset of the disease. 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 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.
8. Reliance was placed on Rules 5,6,9 and 14 to show that
the appellant was entitled to the benefit and the
respondents ought to have given the same in consideration
of the said rules. It was further contended that it will
be for the service authorities to make all practical
investigation to establish the alleged fact, calling upon
the claimant, if necessary to assist and to show that the
employee was suffering from disability or disease at the
time of appointment and such disease is not attributable to
or aggravated by service. Page 9
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9. Per contra, according to the respondents, the question
is no more res integra having settled by this Court in
Keshar Singh (supra).
10. Learned counsel appearing on behalf of the Union of
India submitted that in each case when disability pension
is sought for and claim is made it must be affirmatively
established as a matter of fact as to whether the disease
is due to military service or that it was aggravated by
military service which contributed to invalidation from
service. According to him, in the present case, the Medical
Board has clearly opined that the invalidating disease‘left
partial motor seizure with secondary generalisation' is not
related to military service. The Medical Board having
examined the appellant and having taken into consideration
all evidence before it once submitted its opinion, it is
binding on the parties. It was contended that the opinion
of the Board has been given by the medical experts approved
by a superior Medical Officer, Brigadier. Unless the
primary condition in Regulation 173 is satisfied the
appellant cannot derive advantage. He also placed reliance
on Rules 6,8 14(c) and 17 of “Entitlement Rules forPage 10
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Casualty Pensionary Awards, 1982” and referred to decisions
of this Court to suggest that the appellant is not entitled
to disability pension in view of the opinion of the Medical
Board comprised of experts in the field.
11. In the impugned judgment dated 31st July, 2009, the
Division Bench of the High Court placed reliance on Rules
7(a), 7(b) and 7(c) which was noticed by this Court in
Keshar Singh (supra). In Keshar Singh(supra), a judgment
of the Division Bench of the Allahabad High Court granting
disability pension was challenged before this Court. In
the said matter paragraph 7(b) of AppendixII referred to
in Regulations 48, 173 and 185 of the 'Pension Regulations
for the Army, 1961'. In support of the appeal before this
Court in Keshar Singh(supra) learned Additional Solicitor
General contended that the Division Bench of the High Court
has lost sight of Para 7(c) and both the paragraphs 7(b)
and 7(c) have to be read together. The relevant portion of
the judgment of this Court in Keshar Singh (supra) is
quoted hereunder:
“2. Background facts giving rise to the
present dispute is as follows:Page 11
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The respondent was enrolled as Rifleman
on 15.11.1976 and was discharged from Army
on 18.10.1986. It was found that he was
suffering from Schizophrenia and the Medical
Board's report indicated his nonsuitability
for continuance in army. Medical Board
opined that the disability did not exist
before entering service and it was not
connected with service. An appeal was
preferred before prescribed appellate
authority which was dismissed on 16.4.1989.
Respondent filed a writ petition which was
allowed by learned Single Judge and as noted
above by the impugned judgment the special
appeal was dismissed. Both learned Single
Judge and the Division Bench held that it
was not mentioned at the time of entering to
army service that the respondent suffered
from Schizophrenia and therefore it was
attributable to army service. Both learned
Single Judge and the Division Bench referred
to para 7(b) of the Appendix II referred to
in Regulations 48, 173 and 185 of the
Pension Regulations, 1961 to hold that if
any disease has led to the individuals
discharge it shall be ordinarily deemed to
have arisen in the service if no note of it
was made at the time of individual's
acceptance for military service.
Accordingly, it was held that the respondent
was entitled to disability pension.
3. In support of the appeal learned
Additional Solicitor General submitted that
both learned Single Judge and the Division
Bench have lost sight of para 7(c). Both
7(b) and 7(c) have to be read together. They
read as follows"
“7 (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 toPage 12
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acceptance for service the disease will
not be deemed to have arisen during
service.
7(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.””
12. In their counteraffidavit filed by the respondents
before this Court in the present case, it is accepted that
old Rules 7(a), (b) and 7(c) of the erstwhile
Rules/Regulations were taken into consideration by this
Court in Keshar Singh (supra) which has since been revised
by Rule 14 of revised ‘Entitlement Rules for Casualty
Pensionary Awards, 1982'. For the said reason, we are not
relying on or referring to Rule 7(b) and 7(c) of the
erstwhile Rules. According to the respondents, Rule 14(a),
14(b), 14(c) and 14(d) of the "Entitlement Rules for
Casualty Pensionary Awards to Armed Forces Personnel, 1982"
as amended vide Government of India, Ministry of Defence
letter No.1(1)/81/D(PenC) dated 20th June, 1996 needs to be
taken into consideration along with the other provisions of
Entitlement Rules, 1982. Page 13
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13. Per contra, according to the learned counsel for the
appellant, the "Entitlement Rules for Casualty Pensionary
Awards, 1982" contained in AppendixII of the Pension
Regulations for the Army, 1961 is applicable and not the
Rules referred to and quoted in the counteraffidavit by
the respondents.
14. There being difference in the two sets of the
Entitlement Rules for Casualty Pensionary Awards referred
to by the counsel for the respondents and the appellant, on
the direction of the Court photostat copy of the 'Pension
Regulations for the Army, 1961(PartI)' along with Appendix
(ii), (referred to in Regulations 1948, 1973 and 1985),
'Guide to Medical Officers (Military Pensions) 2002'
published by the Ministry of Defence, Government of India,
New Delhi has been produced. We also called for the Pension
Regulations for the Army, 1961 from Library which contains
AppendixII 'Entitlement Rules for Casualty Pensionary
Awards, 1982' for our perusal, and we find that it is
similar to the photostat copy of the Pension Regulations
for the Army, 1961(PartI) published by the Ministry of
Defence, Government of India, New Delhi. The respondents inPage 14
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their counteraffidavit has not made clear as to when the
Government of India, Ministry of Defence letter
No.1(1)/81/D(PenC) dated 20th June, 1996 was notified in
Gazette amending the Rules and why no such amendment has
been shown in the published Entitlement Rules for Casualty
Pensionary Awards, 1982. In their counteraffidavit they
have not mentioned that the rules extracted in their
counteraffidavit is true copy of its original.
15. For the said reason, we will rely on the "Pension
Regulations for the Army, 1961" and AppendixII
'Entitlement Rules for Casualty Pensionary Awards, 1982'
published by the Government of India, we will also discuss
the Rules 14(a), 14(b), 14 (c) and 14(d) as quoted and
relied on by the respondents.
16. Regulation 173 of Pension Regulations for the Army,
1961 relates to the primary conditions for the grant of
disability pension and reads as follows:
“Regulation 173. Unless otherwise
specifically provided a disability pension
consisting of service element and disability
element may be granted to an individual who
is invalidated out of service on account of
a disability which is attributable to orPage 15
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aggravated by military service in nonbattle
casualty and is assessed 20 per cent or over
The question whether a disability is
attributable to or aggravated by military
service shall be determined under the rule
in Appendix II.”
17. From a bare perusal of the Regulation aforesaid, it is
clear that disability pension in normal course is to be
granted to an individual (i) who is invalidated out of
service on account of a disability which is attributable to
or aggravated by military service and (ii) who is assessed
at 20% or over disability unless otherwise it is
specifically provided.
18. A disability is 'attributable to or aggravated by
military service' to be determined under the “Entitlement
Rules for Casualty Pensionary Awards, 1982', as shown in
AppendixII. Rule 5 relates to approach to the Entitlement
Rules for Casualty Pensionary Awards, 1982 based on
presumption as shown hereunder:
“Rule5 . The approach to the
question of entitlement to casualty
pensionary awards and evaluation of
disabilities shall be based on the
following presumptions:
PRIOR TO AND DURING SERVICEPage 16
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(a)member is presumed to have been in sound
physical and mental condition upon entering
except as to physical disabilities noted or
recorded at the time of entrance.
(b)In the event of his subsequently being
discharged from service on medical grounds
any deterioration in his health which has
taken place is due to service.”
From Rule 5 we find that a general presumption is to be
drawn that a member is presumed to have been in sound
physical and mental condition upon entering service except
as to physical disabilities noted or recorded at the time
of entrance. If a person is discharged from service on
medical ground for deterioration in his health it is to be
presumed that the deterioration in the health has taken
place due to service.
19. “Onus of proof" is not on claimant as apparent from
Rule 9, which reads as follows:
“Rule 9. ONUS OF PROOF The claimant
shall not be called upon to prove
the conditions of entitlements.
He/she will receive the benefit of
any reasonable doubt. This benefit
will be given more liberally to the
claimants in field/afloat service
cases.”Page 17
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From a bare perusal of Rule 9 it is clear that a
member, who is declared disabled from service, is not
required to prove his entitlement of pension and such
pensionary benefits to be given more liberally to the
claimants.
20. With respect to disability due to diseases Rule 14
shall be applicable which as per the Government of India
publication reads as follows:
“Rule 14. DISEASE In respect of
diseases, the following rule will be
observed:
(a)Cases in which it is established
that conditions of Military Service
did not determine or contribute to
the onset of the disease but
influenced the subsequent courses 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.Page 18
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(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.”
As per clause (b) of Rule 14 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.
As per clause(c) of Rule 14 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.
21. If we notice Rule 14(a), 14(b), 14(c) and 14(d) as
quoted by the respondents in their counteraffidavit, it
makes no much difference for determination of issue.
According to the respondents, Rule 14(a), 14(b), 14(c) andPage 19
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14(d) as amended vide Government of India, Ministry of
Defence letter No.1(1)/81/D(PenC) dated 20th June, 1996
reads as follows:
“Rule 14(a) For acceptance of a disease as
attributable to military service, the
following two conditions must be satisfied
simultaneously:
(i)That the disease has arisen during the period
of military service, and
(ii)That the disease has been caused by the
conditions of employment in military service.
Rule 14(b) If medical authority holds, for
reasons to be stated, that the disease
although present at the time of enrolment
could not have been detected on medical
examination prior to acceptance for service,
the disease, will not be deemed to have
arisen during service. In case where it is
established that the military service did
not contribute to the onset or adversely
affect the course disease, entitlement for
casualty pensionary award will not be
conceded even if the disease has arisen
during service.
Rule 14(c) Cases in which 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. Page 20
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Rule 14(d) In case of congenital,
hereditary, degenerative and constitutional
diseases which are detected after the
individual has joined service, entitlement
to disability pension shall not be conceded
unless it is clearly established that the
course of such disease was adversely
affected due to factors related to
conditions of military services.”
22. As per Rule 14(a) we notice that for acceptance of a
disease as attributable to military service, conditions are
to be satisfied that the disease has been arisen during the
military service, and caused by the conditions of
employment in military service which is similar to Rule
14(c) of the printed version as relied on by the appellant.
Rule 14(b) cited by the respondents is also similar to
published Rule 14.
Rule 14(c) cited by the respondents relates to the
cases in which 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.
Rule 14(d) cited by the respondents relates to diseases
which are detected after the individual has joined thePage 21
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service, which entails disability pension but it is to be
established that the course of such disease was adversely
affected due to factors related to conditions of military
service.
23. If the amended version of Rule 14 as cited by the
respondents is accepted to be the Rule applicable in the
present case, even then the onus of proof shall lie on the
employerrespondents in terms of Rule 9 and not the
claimant and in case of any reasonable doubt the benefit
will go more liberally to the claimants.
24. The Rules to be followed by Medical Board in disposal
of special cases have been shown under Chapter VIII of
the“General Rules of Guide to Medical Officers (Military
Pensions) 2002. Rule 423 deals with "Attributability to
service” relevant of which reads as follows:
“423(a)For the purpose of determining
whether the cause of a disability or death
resulting from disease is or is not
attributable to service, it is immaterial
whether the cause giving rise to the
disability or death occurred in an area
declared to be a FieldService/Active Service
area or under normal peace conditions. It is
however, essential to establish whether the
disability or death bore a casual connection
with the service conditions. All evidencePage 22
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both direct and circumstantial will be taken
into account and benefit of reasonable
doubt, if any, will be given to the
individual. The evidence to be accepted as
reasonable doubt for the purpose of these
instructions should be of a degree of
cogency, which though not reaching
certainty, nevertheless carries a high
degree of probability. In this connection,
it will be remembered that proof beyond
reasonable doubt does not mean proof beyond
a shadow of doubt. If the evidence is so
strong against an individual as to leave
only a remote possibility in his/her favour,
which can be dismissed with the sentence
"of course it is possible but not in the
least probable" the case is proved beyond
reasonable doubt. If on the other hand, the
evidence be so evenly balanced as to render
impracticable a determinate conclusion one
way or the other, then the case would be one
in which the benefit of the doubt could be
given more liberally to the individual, in
cases occurring in Field Service/Active
Service areas.
(c). The cause of a disability or death
resulting from a disease will be regarded as
attributable to Service when it is
established that the disease arose during
Service and the conditions and circumstances
of duty in the Armed Forces determined and
contributed to the onset of the disease.
Cases, in which it is established that
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 note 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 tobe
stated that the disease could not have beenPage 23
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detected on medical examination prior to
acceptance for service, the disease will not
be deemed to have arisen during service.
(d).The question, whether a disability or
death resulting from disease is attributable
to or aggravated by service or not, will be
decided as regards its medical aspects by a
Medical Board or by the medical officer who
signs the Death Certificate. The Medical
Board/Medical Officer will specify reasons
for their/his opinion. The opinion of the
Medical Board/Medical Officers,in so far as
it relates to the actual cause of the
disability or death and the circumstances in
which it originated will be regarded as
final. The question whether the cause and
the attendant circumstances can be accepted
as attributable to/aggravated by service for
the purpose of pensionary benefits will,
however, be decided by the pension
sanctioning authority.”
25. Therefore, as per Rule 423 following procedures to be
followed by the Medical Board:
(i) Evidence both direct and circumstantial to be taken
into account by the Board and benefit of reasonable
doubt, if any would go to the individual;
(ii) a disease which has led to an individual's
discharge or death will ordinarily be treated to have
been arisen in service, if no note of it was made at
the time of individual's acceptance for service in
Armed Forces. Page 24
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(iii) If the medical opinion holds that the disease
could not have been detected on medical examination
prior to acceptance for service and the disease will
not be deemed to have been arisen during military
service the Board is required to state the reason for
the same.
26. ‘Chapter II’of the Guide to Medical Officers (Military
Pensions) 2002 relates to “Entitlement : General
Principles". In the opening paragraph 1, it is made clear
that the Medical Board should examine cases in the light of
the etiology of the particular disease and after
considering all the relevant particulars of a case, record
their conclusions with reasons in support, in clear terms
and in a language which the Pension Sanctioning Authority
would be able to appreciate fully in determining the
question of entitlement according to the rules. Medical
officers should comment on the evidence both for and
against the concession of entitlement; the aforesaid
paragraph reads as follows:
“1. Although the certificate of a properly
constituted medical authority visavis the
invaliding disability, or death, forms the
basis of compensation payable by thePage 25
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government, the decision to admit or refuse
entitlement is not solely a matter which can
be determined finally by the medical
authorities alone. It may require also the
consideration of other circumstances e.g.
service conditions, preand postservice
history, verification of wound or injury,
corroboration of statements, collecting and
weighing the value of evidence, and in some
instances, matters of military law and
discipline. Accordingly, Medical Boards
should examine cases in the light of the
etiology of the particular disease and after
considering all the relevant particulars of
a case, record their conclusions with
reasons in support, in clear terms and in a
language which the Pension Sanctioning
Authority, a lay body, would be able to
appreciate fully in determining the question
of entitlement according to the rules. In
expressing their opinion Medical Officers
should comment on the evidence both for and
against the concession of entitlement. In
this connection, it is as well to remember
that a bare medical opinion without reasons
in support will be of no value to the
Pension Sanctioning Authority.”
Paragraph 6 suggests the procedure to be followed by
service authorities if there is no note, or adequate note,
in the service records on which the claim is based.
Paragraph 7 talks of evidentiary value attached to the
record of a member's condition at the commencement of
service, .e.g. preenrolment history of an injury, or
disease like epilepsy, mental disorder etc. Further,Page 26
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guidelines have been laid down at paragraphs 8 and 9, as
quoted below:
7. Evidentiary value is attached to the
record of a member's condition at the
commencement of service, and such record
has, therefore, to be accepted unless any
different conclusion has been reached due to
the inaccuracy of the record in a particular
case or otherwise. Accordingly, if the
disease leading to member's invalidation out
of service or death while in service, was
not noted in a medical report at the
commencement of service, the inference would
be that the disease arose during the period
of member's military service. It may be that
the inaccuracy or incompleteness of service
record on entry in service was due to a non
disclosure of the essential facts by the
member, e.g., preenrolment history of an
injury or disease like epilepsy, mental
disorder etc. It may also be that owing to
latency or obscurity of the symptoms, a
disability escaped detection on enrolment.
Such lack of recognition may affect the
medical categorization of the member on
enrolment and/or cause him to perform duties
harmful to his condition. Again, there may
occasionally be direct evidence of the
contraction of a disability, otherwise than
by service. In all such cases, though the
disease cannot be considered to have been
caused by service, the question of
aggravation by subsequent service conditions
will need examination.
The following are some of the diseases
which ordinarily escape detection on
enrolment:
(a)Certain congenital abnormalities
which are latent and only discoverable
on full investigations, e.g. CONGENITAL
DEFECT OF SPINE, SPINA BIFIDA,
SACRALIZATION,Page 27
27
(b)Certain familial and hereditary
diseases, e.g., HAEMOPHILIA, CONGENTIAL
SYPHILIS, HAEMOGIOBINOPATHY.
(C)Certain diseases of the heart and
blood vessels, e.g., CORONORY
ATHEROSCLEROSIS, RHEUMATIC FEVER.
(d)Diseases which may be undetectable
by physical examination on enrolment,
unless adequate history is given at the
time by the member, e.g., GASTRIC AND
DUODENAL ULCERS, EPILEPSY, MENTAL
DISORDERS, HIV INFECTIONS.
(e) Relapsing forms of mental disorders
which have intervals of normality.
(f) Diseases which have periodic
attacks e.g., BRONCHIAL ASTHMA,
EPILEPSY, CSOM ETC.
8. The question whether the invalidation
or death of a member has resulted from
service conditions, has to be judged in the
light of the record of the member's
condition on enrolment as noted in service
documents and of all other available
evidence both direct and indirect.
In addition to any documentary evidence
relative to the member's condition to
entering the service and during service, the
member must carefully and closely questioned
on the circumstances which led to the advent
of his disease, the duration, the family
history, his preservice history, etc. so
that all evidence in support or against the
claim is elucidated. Presidents of Medical
Boards should make this their personal
responsibility and ensure that opinions on
attributability, aggravation or otherwise
are supported by cogent reasons; the
approving authority should also be satisfied
that this question has been death with in
such a way as to leave no reasonable doubt.Page 28
28
9. On the question whether any persisting
deterioration has occurred, it is to be
remembered that invalidation from service
does not necessarily imply that the member's
health has deteriorated during service. The
disability may have been discovered soon
after joining and the member discharged in
his own interest in order to prevent
deterioration. In such cases, there may even
have been a temporary worsening during
service, but if the treatment given before
discharge was on grounds of expediency to
prevent a recurrence, no lasting damage was
inflicted by service and there would be no
ground for admitting entitlement. Again a
member may have been invalided from service
because he is found so weak mentally that it
is impossible to make him an efficient
soldier. This would not mean that his
condition has worsened during service, but
only that it is worse than was realized on
enrolment in the army. To sum up, in each
case the question whether any persisting
deterioration on the available evidence
which will vary according to the type of the
disability, the consensus of medical opinion
relating to the particular condition and the
clinical history.”
27. Learned counsel for the respondentUnion of India
relied on decisions of this Court in Om Prakash Singh vs.
Union of India and others,(2010) 12 SCC 667;(2009) 9 SCC
140; (2010) 11 SCC 220, etc. and submitted that this Court
has already considered the effect of Rule 5, 14a and 14(a)
and 14(b) and held that the same cannot be read in
isolation. After perusal of the aforesaid decision we findPage 29
29
that Rule 14(a), 14(b) and 14(c) as noticed and quoted
therein are similar to Rule 14 as published by the
Government of India and not Rule 14 as quoted by the
respondents in their counteraffidavit. Further, we find
that the question as raised in the present case that in
case no note of disease or disability was made at the time
of individual's acceptance for military service, the
Medical Board is required to give reasons in writing for
coming to the finding that the disease could not have been
detected on a medical examination prior to the acceptance
for service was neither raised nor answered by this Court
in those cases. Those were the cases which were decided on
the facts of the individual case based on the opinion of
the Medical Board.
28. A conjoint reading of various provisions, reproduced
above, makes it clear that:
(i) Disability pension to be granted to an individual
who is invalidated from service on account of a
disability which is attributable to or aggravated by
military service in nonbattle casualty and is assessed
Page 30
30
at 20% or over. The question
whether a disability is
attributable or aggravated by military service to be
determined under “Entitlement Rules for Casualty
Pensionary Awards, 1982" of AppendixII (Regulation
173).
(ii) A member is to be presumed in sound physical and
mental condition upon entering service if there is no
note or record at the time of entrance. In the event of
his subsequently being discharged from service on
medical grounds any deterioration in his health is to
be presumed due to service. [Rule 5 r/w Rule 14(b)].
(iii) Onus of proof is not on the claimant
(employee), the corollary is that onus of proof that
the condition for nonentitlement is with the employer.
A claimant has a right to derive benefit of any
reasonable doubt and is entitled for pensionary benefit
more liberally. (Rule 9).
(iv) If a disease is accepted to have been 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 thePage 31
31
conditions were due to the circumstances of duty in
military service. [Rule 14(c)].
(v) If no note of any disability or disease was made
at the time of individual's acceptance for military
service, a disease which has led to an individual's
discharge or death will be deemed to have arisen in
service. [14(b)].
(vi) If medical opinion holds that the disease could
not have been detected on medical examination prior to
the acceptance for service and that disease will not be
deemed to have arisen during service, the Medical Board
is required to state the reasons. [14(b)]; and
(vii) It is mandatory for the Medical Board to
follow the guidelines laid down in ChapterII of the
"Guide to Medical (Military Pension), 2002 –
"Entitledment : General Principles", including
paragraph 7,8 and 9 as referred to above.
29. We, accordingly, answer both the questions in
affirmative in favour of the appellant and against the
respondents.Page 32
32
30. In the present case it is undisputed that no note of
any disease has been recorded at the time of appellant's
acceptance for military service. The respondents have
failed to bring on record any document to suggest that the
appellant was under treatment for such a disease or by
hereditary he is suffering from such disease. In absence of
any note in the service record at the time of acceptance of
joining of appellant it was incumbent on the part of the
Medical Board to call for records and look into the same
before coming to an opinion that the disease could not have
been detected on medical examination prior to the
acceptance for military service, but nothing is on the
record to suggest that any such record was called for by
the Medical Board or looked into it and no reasons have
been recorded in writing to come to the conclusion that the
disability is not due to military service.
In fact, non
application of mind of Medical Board is apparent from
Clause (d) of paragraph 2 of the opinion of the Medical
Board, which is as follows:
____________________________________________________Page 33
33
“ (d) In the case of a disability under C
the board should state
what exactly in their opinion is the
cause thereof. YES
Disability is not related to
mil service”
________________________________________________
________
31. Paragraph 1 of 'Chapter II' – “Entitlement : General
Principles” specifically stipulates that certificate of a
constituted medical authority visàvis invalidating
disability, or death, forms the basis of compensation
payable by the Government, the decision to admit or refuse
entitlement is not solely a matter which can be determined
finally by the medical authorities alone. It may require
also the consideration of other circumstances e.g. service
conditions, preand postservice history, verification of
wound or injury, corroboration of statements, collecting
and weighing the value of evidence, and in some instances,
matters of military law and dispute. For the said reasons
the Medical Board was required to examine the cases in the
light of etiology of the particular disease and after
considering all the relevant particulars of a case, it was
required to record its conclusion with reasons in support,
Page 34
34
in clear terms and language which the Pension Sanctioning
Authority would be able to appreciate.
32. In spite of the aforesaid provisions, the Pension
Sanctioning Authority failed to notice that the Medical
Board had not given any reason in support of its opinion,
particularly when there is no note of such disease or
disability available in the service record of the appellant
at the time of acceptance for military service.
Without
going through the aforesaid facts the Pension Sanctioning
Authority mechanically passed the impugned order of
rejection based on the report of the Medical Board.
As per
Rules 5 and 9 of 'Entitlement Rules for Casualty Pensionary
Awards, 1982', the appellant is entitled for presumption
and benefit of presumption in his favour. In absence of
any evidence on record to show that the appellant was
suffering from "Genrealised seizure (Epilepsy)” at the time
of acceptance of his service, it will be presumed that the
appellant was in sound physical and mental condition at the
time of entering the service and deterioration in his
health has taken place due to service. Page 35
35
33. As per Rule 423(a) of General Rules for the purpose of
determining a question
whether the cause of a disability or
death resulting from disease is or is not attributable to
service, it is immaterial whether the cause giving rise to
the disability or death occurred in an area declared to be
a field service/active service area or under normal peace
conditions.
"Classification of diseases” have been
prescribed at Chapter IV of Annexure I;
under paragraph 4
post traumatic epilepsy and other mental changes resulting
from head injuries have been shown as one of the diseases
affected by training, marching, prolonged standing etc.
Therefore, the presumption would be that the disability of
the appellant bore a casual connection with the service
conditions.
34. In view of the finding as recorded above, we have no
option but to set aside the impugned order passed by the
Division Bench dated 31st July, 2009 in LPA No.26 of 2004
and uphold the decision of the learned Single Judge dated
20th May, 2004.
The impugned order is set aside and
accordingly the appeal is allowed.
The respondents are
directed to pay the appellant the benefit in terms of the
Page 36
36
order passed by the learned Single Judge in accordance with
law within three months if not yet paid, else they shall be
liable to pay interest as per order passed by the learned
Single Judge. No costs.
..........………………………………………………..J.
(A.K. PATNAIK)
…........…………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 2, 2013.
Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4949 OF 2013
(arising out of SLP(C)No. 6940 of 2010)
DHARAMVIR SINGH …. APPELLANT
VERSUS
UNION OF INDIA & ORS. ….RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted.
2. This appeal has been preferred by the appellant against
the judgment dated 31st July, 2009 in LPA No.26 of 2004
passed by the Division Bench of the High Court of Himachanl
Pradesh, Shimla whereby the Division Bench allowed the
appeal preferred by the Union of India and set aside the
judgment dated 20th May, 2004 passed by the learned Single
Judge in Civil Writ Petition No.660 of 2004.
3. The questions involved in this case are:Page 2
2
(i) Whether a member of Armed Forces can be presumed
to have been in sound physical and mental condition
upon entering service in absence of disabilities or
disease noted or recorded at the time of entrance.
(ii) Whether the appellant is entitled for disability
pension.
4. The factual matrix of the case is as follows:
The appellant was enrolled as Sepoy in the Corps of
Signals of the Indian Army on 15th June, 1985. Having
rendered about 9 years of service in Indian Army he was
boarded out of the service with effect from Ist April, 1994
on the ground of 20% permanent disability as he was found
suffering from “Genrealised seizure (Epilepsy)". The
Medical Board of Army opined that the "disability is not
related to military service". On the basis of disability
report, no disability pension was granted to him and when
the appellant preferred representation the respondents
rejected such prayer by an order dated 12th December, 1995
on the ground that the disability suffered by the appellant
was neither attributable to nor aggravated by the military
service. Page 3
3
5. The appellant approached the High Court of Himachal
Pradesh in Civil Writ Petition No.660 of 2004 seeking a
direction to respondents to grant disability pension with
effect from 1st April, 1994. Learned Single Judge by
judgment dated 20th May, 2004 on observing that there was
nothing on record to show that the appellant was suffering
from any disease at the time of his initial recruitment in
the Indian Army held that the disease would be deemed to be
attributable to or aggravated by the Army services.
Therefore, in terms of Regulation 173 of Pension
Regulations for the Army, 1961 the appellant is eligible
for disability pension. Learned Single Judge allowed the
writ petition and directed the respondents to grant
disability pension to the appellant as per rules with
effect from the date he was invalidated out of service and
to pay the entire arrears of pension within three months
else they shall be liable to pay interest on such arrears
at the rate of 9% per annum.
6. The Union of India challenged the decision of the
learned Single Judge before the Division Bench of the High
Court of Himachal Pradesh in LPA No.26 of 2004. On behalfPage 4
4
of the Union of India it was contended that
disease“generalized seizure" was constitutional in nature
and the same has not been found by the ReSurvey Medical
Board attributable or aggravated by military service. It
was also contended that the learned Single Judge had not
taken into consideration the relevant law while allowing
the petition. The Division Bench referring to a judgment
of this Court in Union of India and others vs. Keshar
Singh, (2007) 12 SCC 675, and Rule 7 as noticed in the said
judgment held as follows and set aside the order passed by
the learned Single Judge:
“The respondent was discharged from the
military after being placed in Low Medical
Category (CEE). The Resurvey Medical Board
had opined the disability of the respondent
neither attributable nor aggravated military
service. He was found suffering from
‘generalised seizure’. The learned Single
Judge has purportedly referred to paragraph
7(b) of AppendixIIas referred to in
Regulation 48, 173 and 185 while coming to
the conclusion that the respondent was not
suffering from the disease on account of
which he was invalidated out of the service
at the time of his initial recruitment in
the Indian Army. However, the learned Single
Judge has omitted to take note of paragraph
7(c) of AppendixII as referred to in
Regulation 48, 173 and 185 of the Pension
Regulations for the Army, 1961(PartI).Page 5
5
The legal position raised in this Letters
Patent Appeal is no more res integra in view
of law laid down by their Lordships of the
Hon'ble Supreme Court in Union of India &
Ors. Versus Keshar Singh, 2007 (4) SLR 100.
Their Lordships of the Hon'ble Supreme Court
were also seized of the matter wherein the
Medical Board had given a clear opinion that
the illness was not attributable to military
service. In this case also the soldier has
developed schizophrenia. Their Lordships of
the Hon'ble Supreme Court have held as
under:
“In support of the appeal learned
Additional Solicitor General submitted
that both learned Single Judge and the
Division Bench have lost sight of para
7(c). Both 7(b) and 7(c) have to be
read together. They read as follows:
“7(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 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.
7(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.”Page 6
6
A bare reading of the aforesaid provision
makes it clear that ordinarily if a disease
has led to the discharge of individual it
shall 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. An exception, however, is carvd
out, i.e. if medical opinion holds for
reasons to be stated that the disease could
not have been detected by Medical
Examination Board prior to acceptance for
service, the disease would not be deemed to
have arisen during service. Similarly,
clause (c) of Rule 7 makes the position
clear that if a disease is accepted as
having arisen in service it must also be
established that the condition of military
service determined or contributed to the
onset of the disease and that the conditions
are due to the circumstances of duty in
military service. There is no material
placed by the respondent in this regard.
In view of the legal position referred to
above and the fact that the Medical Board's
opinion was clearly to the effect that the
illness suffered by the respondent was not
attributable to the military service, both
the learned Single Judge and the Division
Bench were not justified in their respective
conclusion. The respondent is not entitled
to disability pension. However, on the facts
and circumstances of the case, payment
already made to the respondent by way of
disability pension shall not be recovered
from him. The appeal is allowed but in the
circumstances without any order as to
costs.”
The disease developed by the petitioner i.e.
‘generalised seizore' is constitutional inPage 7
7
nature and the Resurvey Medical Board had
specifically opined, as noticed above, that
the disability was neither attributable nor
aggravated by the military service. The
opinion of the Resurvey Medical Board has
to be given primacy.
Accordingly, the learned Single Judge has
erred in law by allowing the writ petition
only on the basis of plain reading of
paragraph 7(b) of AppendixIIas referred to
in Regulation 48, 173 and 185 of the Pension
Regulation for the Army, 1961 (PartI). He
has omitted to see clauses 7(c) of Appendix
IIof the Pension Regulations for the Army,
1961 (PatI).
Consequently, in view of the observation
made hereinabove, the Letters Patent Appeal
is allowed. The judgment of learned Single
Judge is set aside. No costs.”
7. Learned counsel for the appellant contended that the
Entitlement Rules for Casualty Pensionary Awards, 1982 have
been made effective w.e.f. Ist January, 1982 and the set of
rules is required to be read in conjunction with the Guide
to Medical Officers (Military Pension), 1980. Referring to
Rule 423(c) it was submitted that the cause of disability
or death resulting from a disease will be regarded as
attributable to service when it is established that the
disease arose during service and the conditions and
circumstances of duty in the Armed Forces determined andPage 8
8
contributed to the onset of the disease. 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 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.
8. Reliance was placed on Rules 5,6,9 and 14 to show that
the appellant was entitled to the benefit and the
respondents ought to have given the same in consideration
of the said rules. It was further contended that it will
be for the service authorities to make all practical
investigation to establish the alleged fact, calling upon
the claimant, if necessary to assist and to show that the
employee was suffering from disability or disease at the
time of appointment and such disease is not attributable to
or aggravated by service. Page 9
9
9. Per contra, according to the respondents, the question
is no more res integra having settled by this Court in
Keshar Singh (supra).
10. Learned counsel appearing on behalf of the Union of
India submitted that in each case when disability pension
is sought for and claim is made it must be affirmatively
established as a matter of fact as to whether the disease
is due to military service or that it was aggravated by
military service which contributed to invalidation from
service. According to him, in the present case, the Medical
Board has clearly opined that the invalidating disease‘left
partial motor seizure with secondary generalisation' is not
related to military service. The Medical Board having
examined the appellant and having taken into consideration
all evidence before it once submitted its opinion, it is
binding on the parties. It was contended that the opinion
of the Board has been given by the medical experts approved
by a superior Medical Officer, Brigadier. Unless the
primary condition in Regulation 173 is satisfied the
appellant cannot derive advantage. He also placed reliance
on Rules 6,8 14(c) and 17 of “Entitlement Rules forPage 10
10
Casualty Pensionary Awards, 1982” and referred to decisions
of this Court to suggest that the appellant is not entitled
to disability pension in view of the opinion of the Medical
Board comprised of experts in the field.
11. In the impugned judgment dated 31st July, 2009, the
Division Bench of the High Court placed reliance on Rules
7(a), 7(b) and 7(c) which was noticed by this Court in
Keshar Singh (supra). In Keshar Singh(supra), a judgment
of the Division Bench of the Allahabad High Court granting
disability pension was challenged before this Court. In
the said matter paragraph 7(b) of AppendixII referred to
in Regulations 48, 173 and 185 of the 'Pension Regulations
for the Army, 1961'. In support of the appeal before this
Court in Keshar Singh(supra) learned Additional Solicitor
General contended that the Division Bench of the High Court
has lost sight of Para 7(c) and both the paragraphs 7(b)
and 7(c) have to be read together. The relevant portion of
the judgment of this Court in Keshar Singh (supra) is
quoted hereunder:
“2. Background facts giving rise to the
present dispute is as follows:Page 11
11
The respondent was enrolled as Rifleman
on 15.11.1976 and was discharged from Army
on 18.10.1986. It was found that he was
suffering from Schizophrenia and the Medical
Board's report indicated his nonsuitability
for continuance in army. Medical Board
opined that the disability did not exist
before entering service and it was not
connected with service. An appeal was
preferred before prescribed appellate
authority which was dismissed on 16.4.1989.
Respondent filed a writ petition which was
allowed by learned Single Judge and as noted
above by the impugned judgment the special
appeal was dismissed. Both learned Single
Judge and the Division Bench held that it
was not mentioned at the time of entering to
army service that the respondent suffered
from Schizophrenia and therefore it was
attributable to army service. Both learned
Single Judge and the Division Bench referred
to para 7(b) of the Appendix II referred to
in Regulations 48, 173 and 185 of the
Pension Regulations, 1961 to hold that if
any disease has led to the individuals
discharge it shall be ordinarily deemed to
have arisen in the service if no note of it
was made at the time of individual's
acceptance for military service.
Accordingly, it was held that the respondent
was entitled to disability pension.
3. In support of the appeal learned
Additional Solicitor General submitted that
both learned Single Judge and the Division
Bench have lost sight of para 7(c). Both
7(b) and 7(c) have to be read together. They
read as follows"
“7 (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 toPage 12
12
acceptance for service the disease will
not be deemed to have arisen during
service.
7(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.””
12. In their counteraffidavit filed by the respondents
before this Court in the present case, it is accepted that
old Rules 7(a), (b) and 7(c) of the erstwhile
Rules/Regulations were taken into consideration by this
Court in Keshar Singh (supra) which has since been revised
by Rule 14 of revised ‘Entitlement Rules for Casualty
Pensionary Awards, 1982'. For the said reason, we are not
relying on or referring to Rule 7(b) and 7(c) of the
erstwhile Rules. According to the respondents, Rule 14(a),
14(b), 14(c) and 14(d) of the "Entitlement Rules for
Casualty Pensionary Awards to Armed Forces Personnel, 1982"
as amended vide Government of India, Ministry of Defence
letter No.1(1)/81/D(PenC) dated 20th June, 1996 needs to be
taken into consideration along with the other provisions of
Entitlement Rules, 1982. Page 13
13
13. Per contra, according to the learned counsel for the
appellant, the "Entitlement Rules for Casualty Pensionary
Awards, 1982" contained in AppendixII of the Pension
Regulations for the Army, 1961 is applicable and not the
Rules referred to and quoted in the counteraffidavit by
the respondents.
14. There being difference in the two sets of the
Entitlement Rules for Casualty Pensionary Awards referred
to by the counsel for the respondents and the appellant, on
the direction of the Court photostat copy of the 'Pension
Regulations for the Army, 1961(PartI)' along with Appendix
(ii), (referred to in Regulations 1948, 1973 and 1985),
'Guide to Medical Officers (Military Pensions) 2002'
published by the Ministry of Defence, Government of India,
New Delhi has been produced. We also called for the Pension
Regulations for the Army, 1961 from Library which contains
AppendixII 'Entitlement Rules for Casualty Pensionary
Awards, 1982' for our perusal, and we find that it is
similar to the photostat copy of the Pension Regulations
for the Army, 1961(PartI) published by the Ministry of
Defence, Government of India, New Delhi. The respondents inPage 14
14
their counteraffidavit has not made clear as to when the
Government of India, Ministry of Defence letter
No.1(1)/81/D(PenC) dated 20th June, 1996 was notified in
Gazette amending the Rules and why no such amendment has
been shown in the published Entitlement Rules for Casualty
Pensionary Awards, 1982. In their counteraffidavit they
have not mentioned that the rules extracted in their
counteraffidavit is true copy of its original.
15. For the said reason, we will rely on the "Pension
Regulations for the Army, 1961" and AppendixII
'Entitlement Rules for Casualty Pensionary Awards, 1982'
published by the Government of India, we will also discuss
the Rules 14(a), 14(b), 14 (c) and 14(d) as quoted and
relied on by the respondents.
16. Regulation 173 of Pension Regulations for the Army,
1961 relates to the primary conditions for the grant of
disability pension and reads as follows:
“Regulation 173. Unless otherwise
specifically provided a disability pension
consisting of service element and disability
element may be granted to an individual who
is invalidated out of service on account of
a disability which is attributable to orPage 15
15
aggravated by military service in nonbattle
casualty and is assessed 20 per cent or over
The question whether a disability is
attributable to or aggravated by military
service shall be determined under the rule
in Appendix II.”
17. From a bare perusal of the Regulation aforesaid, it is
clear that disability pension in normal course is to be
granted to an individual (i) who is invalidated out of
service on account of a disability which is attributable to
or aggravated by military service and (ii) who is assessed
at 20% or over disability unless otherwise it is
specifically provided.
18. A disability is 'attributable to or aggravated by
military service' to be determined under the “Entitlement
Rules for Casualty Pensionary Awards, 1982', as shown in
AppendixII. Rule 5 relates to approach to the Entitlement
Rules for Casualty Pensionary Awards, 1982 based on
presumption as shown hereunder:
“Rule5 . The approach to the
question of entitlement to casualty
pensionary awards and evaluation of
disabilities shall be based on the
following presumptions:
PRIOR TO AND DURING SERVICEPage 16
16
(a)member is presumed to have been in sound
physical and mental condition upon entering
except as to physical disabilities noted or
recorded at the time of entrance.
(b)In the event of his subsequently being
discharged from service on medical grounds
any deterioration in his health which has
taken place is due to service.”
From Rule 5 we find that a general presumption is to be
drawn that a member is presumed to have been in sound
physical and mental condition upon entering service except
as to physical disabilities noted or recorded at the time
of entrance. If a person is discharged from service on
medical ground for deterioration in his health it is to be
presumed that the deterioration in the health has taken
place due to service.
19. “Onus of proof" is not on claimant as apparent from
Rule 9, which reads as follows:
“Rule 9. ONUS OF PROOF The claimant
shall not be called upon to prove
the conditions of entitlements.
He/she will receive the benefit of
any reasonable doubt. This benefit
will be given more liberally to the
claimants in field/afloat service
cases.”Page 17
17
From a bare perusal of Rule 9 it is clear that a
member, who is declared disabled from service, is not
required to prove his entitlement of pension and such
pensionary benefits to be given more liberally to the
claimants.
20. With respect to disability due to diseases Rule 14
shall be applicable which as per the Government of India
publication reads as follows:
“Rule 14. DISEASE In respect of
diseases, the following rule will be
observed:
(a)Cases in which it is established
that conditions of Military Service
did not determine or contribute to
the onset of the disease but
influenced the subsequent courses 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.Page 18
18
(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.”
As per clause (b) of Rule 14 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.
As per clause(c) of Rule 14 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.
21. If we notice Rule 14(a), 14(b), 14(c) and 14(d) as
quoted by the respondents in their counteraffidavit, it
makes no much difference for determination of issue.
According to the respondents, Rule 14(a), 14(b), 14(c) andPage 19
19
14(d) as amended vide Government of India, Ministry of
Defence letter No.1(1)/81/D(PenC) dated 20th June, 1996
reads as follows:
“Rule 14(a) For acceptance of a disease as
attributable to military service, the
following two conditions must be satisfied
simultaneously:
(i)That the disease has arisen during the period
of military service, and
(ii)That the disease has been caused by the
conditions of employment in military service.
Rule 14(b) If medical authority holds, for
reasons to be stated, that the disease
although present at the time of enrolment
could not have been detected on medical
examination prior to acceptance for service,
the disease, will not be deemed to have
arisen during service. In case where it is
established that the military service did
not contribute to the onset or adversely
affect the course disease, entitlement for
casualty pensionary award will not be
conceded even if the disease has arisen
during service.
Rule 14(c) Cases in which 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. Page 20
20
Rule 14(d) In case of congenital,
hereditary, degenerative and constitutional
diseases which are detected after the
individual has joined service, entitlement
to disability pension shall not be conceded
unless it is clearly established that the
course of such disease was adversely
affected due to factors related to
conditions of military services.”
22. As per Rule 14(a) we notice that for acceptance of a
disease as attributable to military service, conditions are
to be satisfied that the disease has been arisen during the
military service, and caused by the conditions of
employment in military service which is similar to Rule
14(c) of the printed version as relied on by the appellant.
Rule 14(b) cited by the respondents is also similar to
published Rule 14.
Rule 14(c) cited by the respondents relates to the
cases in which 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.
Rule 14(d) cited by the respondents relates to diseases
which are detected after the individual has joined thePage 21
21
service, which entails disability pension but it is to be
established that the course of such disease was adversely
affected due to factors related to conditions of military
service.
23. If the amended version of Rule 14 as cited by the
respondents is accepted to be the Rule applicable in the
present case, even then the onus of proof shall lie on the
employerrespondents in terms of Rule 9 and not the
claimant and in case of any reasonable doubt the benefit
will go more liberally to the claimants.
24. The Rules to be followed by Medical Board in disposal
of special cases have been shown under Chapter VIII of
the“General Rules of Guide to Medical Officers (Military
Pensions) 2002. Rule 423 deals with "Attributability to
service” relevant of which reads as follows:
“423(a)For the purpose of determining
whether the cause of a disability or death
resulting from disease is or is not
attributable to service, it is immaterial
whether the cause giving rise to the
disability or death occurred in an area
declared to be a FieldService/Active Service
area or under normal peace conditions. It is
however, essential to establish whether the
disability or death bore a casual connection
with the service conditions. All evidencePage 22
22
both direct and circumstantial will be taken
into account and benefit of reasonable
doubt, if any, will be given to the
individual. The evidence to be accepted as
reasonable doubt for the purpose of these
instructions should be of a degree of
cogency, which though not reaching
certainty, nevertheless carries a high
degree of probability. In this connection,
it will be remembered that proof beyond
reasonable doubt does not mean proof beyond
a shadow of doubt. If the evidence is so
strong against an individual as to leave
only a remote possibility in his/her favour,
which can be dismissed with the sentence
"of course it is possible but not in the
least probable" the case is proved beyond
reasonable doubt. If on the other hand, the
evidence be so evenly balanced as to render
impracticable a determinate conclusion one
way or the other, then the case would be one
in which the benefit of the doubt could be
given more liberally to the individual, in
cases occurring in Field Service/Active
Service areas.
(c). The cause of a disability or death
resulting from a disease will be regarded as
attributable to Service when it is
established that the disease arose during
Service and the conditions and circumstances
of duty in the Armed Forces determined and
contributed to the onset of the disease.
Cases, in which it is established that
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 note 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 tobe
stated that the disease could not have beenPage 23
23
detected on medical examination prior to
acceptance for service, the disease will not
be deemed to have arisen during service.
(d).The question, whether a disability or
death resulting from disease is attributable
to or aggravated by service or not, will be
decided as regards its medical aspects by a
Medical Board or by the medical officer who
signs the Death Certificate. The Medical
Board/Medical Officer will specify reasons
for their/his opinion. The opinion of the
Medical Board/Medical Officers,in so far as
it relates to the actual cause of the
disability or death and the circumstances in
which it originated will be regarded as
final. The question whether the cause and
the attendant circumstances can be accepted
as attributable to/aggravated by service for
the purpose of pensionary benefits will,
however, be decided by the pension
sanctioning authority.”
25. Therefore, as per Rule 423 following procedures to be
followed by the Medical Board:
(i) Evidence both direct and circumstantial to be taken
into account by the Board and benefit of reasonable
doubt, if any would go to the individual;
(ii) a disease which has led to an individual's
discharge or death will ordinarily be treated to have
been arisen in service, if no note of it was made at
the time of individual's acceptance for service in
Armed Forces. Page 24
24
(iii) If the medical opinion holds that the disease
could not have been detected on medical examination
prior to acceptance for service and the disease will
not be deemed to have been arisen during military
service the Board is required to state the reason for
the same.
26. ‘Chapter II’of the Guide to Medical Officers (Military
Pensions) 2002 relates to “Entitlement : General
Principles". In the opening paragraph 1, it is made clear
that the Medical Board should examine cases in the light of
the etiology of the particular disease and after
considering all the relevant particulars of a case, record
their conclusions with reasons in support, in clear terms
and in a language which the Pension Sanctioning Authority
would be able to appreciate fully in determining the
question of entitlement according to the rules. Medical
officers should comment on the evidence both for and
against the concession of entitlement; the aforesaid
paragraph reads as follows:
“1. Although the certificate of a properly
constituted medical authority visavis the
invaliding disability, or death, forms the
basis of compensation payable by thePage 25
25
government, the decision to admit or refuse
entitlement is not solely a matter which can
be determined finally by the medical
authorities alone. It may require also the
consideration of other circumstances e.g.
service conditions, preand postservice
history, verification of wound or injury,
corroboration of statements, collecting and
weighing the value of evidence, and in some
instances, matters of military law and
discipline. Accordingly, Medical Boards
should examine cases in the light of the
etiology of the particular disease and after
considering all the relevant particulars of
a case, record their conclusions with
reasons in support, in clear terms and in a
language which the Pension Sanctioning
Authority, a lay body, would be able to
appreciate fully in determining the question
of entitlement according to the rules. In
expressing their opinion Medical Officers
should comment on the evidence both for and
against the concession of entitlement. In
this connection, it is as well to remember
that a bare medical opinion without reasons
in support will be of no value to the
Pension Sanctioning Authority.”
Paragraph 6 suggests the procedure to be followed by
service authorities if there is no note, or adequate note,
in the service records on which the claim is based.
Paragraph 7 talks of evidentiary value attached to the
record of a member's condition at the commencement of
service, .e.g. preenrolment history of an injury, or
disease like epilepsy, mental disorder etc. Further,Page 26
26
guidelines have been laid down at paragraphs 8 and 9, as
quoted below:
7. Evidentiary value is attached to the
record of a member's condition at the
commencement of service, and such record
has, therefore, to be accepted unless any
different conclusion has been reached due to
the inaccuracy of the record in a particular
case or otherwise. Accordingly, if the
disease leading to member's invalidation out
of service or death while in service, was
not noted in a medical report at the
commencement of service, the inference would
be that the disease arose during the period
of member's military service. It may be that
the inaccuracy or incompleteness of service
record on entry in service was due to a non
disclosure of the essential facts by the
member, e.g., preenrolment history of an
injury or disease like epilepsy, mental
disorder etc. It may also be that owing to
latency or obscurity of the symptoms, a
disability escaped detection on enrolment.
Such lack of recognition may affect the
medical categorization of the member on
enrolment and/or cause him to perform duties
harmful to his condition. Again, there may
occasionally be direct evidence of the
contraction of a disability, otherwise than
by service. In all such cases, though the
disease cannot be considered to have been
caused by service, the question of
aggravation by subsequent service conditions
will need examination.
The following are some of the diseases
which ordinarily escape detection on
enrolment:
(a)Certain congenital abnormalities
which are latent and only discoverable
on full investigations, e.g. CONGENITAL
DEFECT OF SPINE, SPINA BIFIDA,
SACRALIZATION,Page 27
27
(b)Certain familial and hereditary
diseases, e.g., HAEMOPHILIA, CONGENTIAL
SYPHILIS, HAEMOGIOBINOPATHY.
(C)Certain diseases of the heart and
blood vessels, e.g., CORONORY
ATHEROSCLEROSIS, RHEUMATIC FEVER.
(d)Diseases which may be undetectable
by physical examination on enrolment,
unless adequate history is given at the
time by the member, e.g., GASTRIC AND
DUODENAL ULCERS, EPILEPSY, MENTAL
DISORDERS, HIV INFECTIONS.
(e) Relapsing forms of mental disorders
which have intervals of normality.
(f) Diseases which have periodic
attacks e.g., BRONCHIAL ASTHMA,
EPILEPSY, CSOM ETC.
8. The question whether the invalidation
or death of a member has resulted from
service conditions, has to be judged in the
light of the record of the member's
condition on enrolment as noted in service
documents and of all other available
evidence both direct and indirect.
In addition to any documentary evidence
relative to the member's condition to
entering the service and during service, the
member must carefully and closely questioned
on the circumstances which led to the advent
of his disease, the duration, the family
history, his preservice history, etc. so
that all evidence in support or against the
claim is elucidated. Presidents of Medical
Boards should make this their personal
responsibility and ensure that opinions on
attributability, aggravation or otherwise
are supported by cogent reasons; the
approving authority should also be satisfied
that this question has been death with in
such a way as to leave no reasonable doubt.Page 28
28
9. On the question whether any persisting
deterioration has occurred, it is to be
remembered that invalidation from service
does not necessarily imply that the member's
health has deteriorated during service. The
disability may have been discovered soon
after joining and the member discharged in
his own interest in order to prevent
deterioration. In such cases, there may even
have been a temporary worsening during
service, but if the treatment given before
discharge was on grounds of expediency to
prevent a recurrence, no lasting damage was
inflicted by service and there would be no
ground for admitting entitlement. Again a
member may have been invalided from service
because he is found so weak mentally that it
is impossible to make him an efficient
soldier. This would not mean that his
condition has worsened during service, but
only that it is worse than was realized on
enrolment in the army. To sum up, in each
case the question whether any persisting
deterioration on the available evidence
which will vary according to the type of the
disability, the consensus of medical opinion
relating to the particular condition and the
clinical history.”
27. Learned counsel for the respondentUnion of India
relied on decisions of this Court in Om Prakash Singh vs.
Union of India and others,(2010) 12 SCC 667;(2009) 9 SCC
140; (2010) 11 SCC 220, etc. and submitted that this Court
has already considered the effect of Rule 5, 14a and 14(a)
and 14(b) and held that the same cannot be read in
isolation. After perusal of the aforesaid decision we findPage 29
29
that Rule 14(a), 14(b) and 14(c) as noticed and quoted
therein are similar to Rule 14 as published by the
Government of India and not Rule 14 as quoted by the
respondents in their counteraffidavit. Further, we find
that the question as raised in the present case that in
case no note of disease or disability was made at the time
of individual's acceptance for military service, the
Medical Board is required to give reasons in writing for
coming to the finding that the disease could not have been
detected on a medical examination prior to the acceptance
for service was neither raised nor answered by this Court
in those cases. Those were the cases which were decided on
the facts of the individual case based on the opinion of
the Medical Board.
28. A conjoint reading of various provisions, reproduced
above, makes it clear that:
(i) Disability pension to be granted to an individual
who is invalidated from service on account of a
disability which is attributable to or aggravated by
military service in nonbattle casualty and is assessed
Page 30
30
at 20% or over. The question
whether a disability is
attributable or aggravated by military service to be
determined under “Entitlement Rules for Casualty
Pensionary Awards, 1982" of AppendixII (Regulation
173).
(ii) A member is to be presumed in sound physical and
mental condition upon entering service if there is no
note or record at the time of entrance. In the event of
his subsequently being discharged from service on
medical grounds any deterioration in his health is to
be presumed due to service. [Rule 5 r/w Rule 14(b)].
(iii) Onus of proof is not on the claimant
(employee), the corollary is that onus of proof that
the condition for nonentitlement is with the employer.
A claimant has a right to derive benefit of any
reasonable doubt and is entitled for pensionary benefit
more liberally. (Rule 9).
(iv) If a disease is accepted to have been 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 thePage 31
31
conditions were due to the circumstances of duty in
military service. [Rule 14(c)].
(v) If no note of any disability or disease was made
at the time of individual's acceptance for military
service, a disease which has led to an individual's
discharge or death will be deemed to have arisen in
service. [14(b)].
(vi) If medical opinion holds that the disease could
not have been detected on medical examination prior to
the acceptance for service and that disease will not be
deemed to have arisen during service, the Medical Board
is required to state the reasons. [14(b)]; and
(vii) It is mandatory for the Medical Board to
follow the guidelines laid down in ChapterII of the
"Guide to Medical (Military Pension), 2002 –
"Entitledment : General Principles", including
paragraph 7,8 and 9 as referred to above.
29. We, accordingly, answer both the questions in
affirmative in favour of the appellant and against the
respondents.Page 32
32
30. In the present case it is undisputed that no note of
any disease has been recorded at the time of appellant's
acceptance for military service. The respondents have
failed to bring on record any document to suggest that the
appellant was under treatment for such a disease or by
hereditary he is suffering from such disease. In absence of
any note in the service record at the time of acceptance of
joining of appellant it was incumbent on the part of the
Medical Board to call for records and look into the same
before coming to an opinion that the disease could not have
been detected on medical examination prior to the
acceptance for military service, but nothing is on the
record to suggest that any such record was called for by
the Medical Board or looked into it and no reasons have
been recorded in writing to come to the conclusion that the
disability is not due to military service.
In fact, non
application of mind of Medical Board is apparent from
Clause (d) of paragraph 2 of the opinion of the Medical
Board, which is as follows:
____________________________________________________Page 33
33
“ (d) In the case of a disability under C
the board should state
what exactly in their opinion is the
cause thereof. YES
Disability is not related to
mil service”
________________________________________________
________
31. Paragraph 1 of 'Chapter II' – “Entitlement : General
Principles” specifically stipulates that certificate of a
constituted medical authority visàvis invalidating
disability, or death, forms the basis of compensation
payable by the Government, the decision to admit or refuse
entitlement is not solely a matter which can be determined
finally by the medical authorities alone. It may require
also the consideration of other circumstances e.g. service
conditions, preand postservice history, verification of
wound or injury, corroboration of statements, collecting
and weighing the value of evidence, and in some instances,
matters of military law and dispute. For the said reasons
the Medical Board was required to examine the cases in the
light of etiology of the particular disease and after
considering all the relevant particulars of a case, it was
required to record its conclusion with reasons in support,
Page 34
34
in clear terms and language which the Pension Sanctioning
Authority would be able to appreciate.
32. In spite of the aforesaid provisions, the Pension
Sanctioning Authority failed to notice that the Medical
Board had not given any reason in support of its opinion,
particularly when there is no note of such disease or
disability available in the service record of the appellant
at the time of acceptance for military service.
Without
going through the aforesaid facts the Pension Sanctioning
Authority mechanically passed the impugned order of
rejection based on the report of the Medical Board.
As per
Rules 5 and 9 of 'Entitlement Rules for Casualty Pensionary
Awards, 1982', the appellant is entitled for presumption
and benefit of presumption in his favour. In absence of
any evidence on record to show that the appellant was
suffering from "Genrealised seizure (Epilepsy)” at the time
of acceptance of his service, it will be presumed that the
appellant was in sound physical and mental condition at the
time of entering the service and deterioration in his
health has taken place due to service. Page 35
35
33. As per Rule 423(a) of General Rules for the purpose of
determining a question
whether the cause of a disability or
death resulting from disease is or is not attributable to
service, it is immaterial whether the cause giving rise to
the disability or death occurred in an area declared to be
a field service/active service area or under normal peace
conditions.
"Classification of diseases” have been
prescribed at Chapter IV of Annexure I;
under paragraph 4
post traumatic epilepsy and other mental changes resulting
from head injuries have been shown as one of the diseases
affected by training, marching, prolonged standing etc.
Therefore, the presumption would be that the disability of
the appellant bore a casual connection with the service
conditions.
34. In view of the finding as recorded above, we have no
option but to set aside the impugned order passed by the
Division Bench dated 31st July, 2009 in LPA No.26 of 2004
and uphold the decision of the learned Single Judge dated
20th May, 2004.
The impugned order is set aside and
accordingly the appeal is allowed.
The respondents are
directed to pay the appellant the benefit in terms of the
Page 36
36
order passed by the learned Single Judge in accordance with
law within three months if not yet paid, else they shall be
liable to pay interest as per order passed by the learned
Single Judge. No costs.
..........………………………………………………..J.
(A.K. PATNAIK)
…........…………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 2, 2013.
