REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5655 OF 2010

(Arising out of Special Leave Petition (C) No. 21998 of 2009)

Om Prakash Singh …Appellant

Versus

Union of India & Others …Respondents

J U D G M E N T

Dalveer Bhandari, J.

1.Leave granted.

2.This appeal is directed against the judgment and order

dated 27.3.2009 passed by the High Court of Delhi at New

Delhi in Writ Petition (Civil) No. 7834 of 2009.

3.The short question involved in this appeal pertains to the

controversy whether the appellant is entitled to disability

pension?

4.Brief facts which are necessary to dispose of the matter

are recapitulated as under:

The appellant was enrolled in the Territorial Army on

28.9.1975 as a Sepoy. At the time of joining service the

appellant was put through the medical test and was found

medically fit. According to the appellant, while serving in the

Army, he had contacted the disease known as “Unspecified

Psychosis” on 26.6.1985, which is a psychiatric disorder. The

appellant was treated in the Army Hospital at Delhi Cantt.

On the recommendations of the Medical Board which assessed

the appellant’s disability as 40%, he was invalided out from

the service. According to the Medical Board the disease of the

appellant was neither attributable to nor aggravated by the

military service.

5.The claim of the appellant for grant of disability pension

was rejected by the competent authority. The appellant filed a

Writ Petition (Civil) No. 838 of 2008 in the High Court of Delhi.

There was a similar matter pending with the High Court and

2

the High Court by a common order dated 30.4.2008 directed

the respondents to hold the Appeal Medical Boasrd with

further direction that the parameters laid down by the High

Court in the cases of Ex-Sepoy Gopal Singh Dadwal v.

Union of India & Others (2007) 1 SLR 616 and Ex-Cfn

Sugna Ram Ranoliya v. Union of India & Others 132

(2006) DLT 544 (DB) be taken into consideration.

6.The Appeal Medical Board opined that the disease of the

appellant was neither attributable to nor aggravated by the

military service because it was contracted in peace area.

Aggrieved thereby, the appellant filed Writ Petition (Civil) No.

7834 of 2009 which was dismissed by the High Court. Hence,

the present appeal by special leave.

7.We deem it appropriate to set out the relevant part of the

opinion of the Medical Board. The same is as under:

“PART V

OPINION OF THE MEDICAL BOARD

Individual’s Relationship of the Disability with Service

conditions or otherwise

Disability Attributable

to service

(Y/N)

Aggravated

by service

(Y/N)

Not

connected

with

service

(Y/N)

Reason/ cause/

specific

condition and

period in service

UNSPECIFIED

PSYCHOSIS

No No Yes *

3

* As per medical consensus, unspecified

psychosis, like schizophrenia is caused by

interaction of multiple genetic vulnerabilities

coupled with environmental, biological,

psychological and psychosocial stressors

during early childhood development or

structural and neuro-chemical damage to the

brain in infancy manifesting in adult life as

psychosis, hence it cannot be considered as

attributable to military service. However,

despite being a constitutional psychiatric

disease benefit of doubt is given to an

individual on possibility of stress and strain of

service in war like situations, threat to life by

enemy action in CIOPs or extreme

environmental conditions of prolonged

field/high altitude service, hastening the onset

or aggravating it (as specified in Annexure I to

Encirclement Rules – Classification of

Diseases). However, no such stress/strain of

military service as defined in Para 54 of

Chapter VI of Guide to medical officers

(military Pensions) 2002, which is considered

stressful enough to hasten onset or aggravate

the invaliding disease (ID), is evident in this

instant case as individual did not serve in any

field/CIOPs/High altitude areas or extreme

environmental conditions and served only in

peace stations (Cannanore and Delhi). In view

of the above, as per the principles of military

medicine, invaliding disease (ID) is considered

neither attributable to nor aggravated by

military service.

Sd/-

Col. A.T. Kalghargi

Director (Pension)

Dir AFMS (Pension)

Office of DGAFMS

Min. of Defence, New Delhi

Sd/-

Brig.V.K. Kataria

Dy. DGAFMS(Pens)

Office of DGAFMS

Min. of Defence

New Delhi.

4

Sd/-

NEATU NARANG

Lt. Col. AMC

Classified Spl (Psychiatry)

Base Hospital Delhi Cantt.”

8.The appellant asserted that the entitlement to the

disability pension flows from Regulation 173 of the Pension

Regulations for the Army 1961 – Part I (hereinafter referred to

as the Regulation). He further asserted that the High Court

fell in grave error of law in not considering this mandatory

provision. The relevant Regulation 173 of the Regulation

reads as under:

“173. Unless otherwise specifically

provided a disability pension consisting of service

element and disability element may be granted to an

individual who is invalided out of service on account

of a disability which is attributable to or aggravated

by military service in non-battle casualty and is

assessed at 20 percent or over.

The question whether a disability is

attributable to or aggravated by military service

shall be determined under the rules in Appendix-II.”

9.According to the appellant, it is clear from the above-said

Regulation that two conditions decide the entitlement to

disability pension. The first condition is that he should be

invalided out of service on account of disability which is

attributable to or aggravated by military service. The second

5

condition is that the disability should be assessed at 20% or

more. The assessment of percentage of disability is in the

domain of the medical board which examines the physical

conditions of the concerned official. In deciding the

percentage of disability the medical board is guided by the

Medical Regulations.

10.The appellant also submitted that whether a disability is

attributable to or aggravated by the military service, has to be

determined under the Entitlement Rules for Casualty

Pensionary Awards 1982 (hereinafter referred to as the

“Entitlement Rules”). According to the appellant, the opinion

of the medical board in respect of attributability does not get

supremacy and it is to be treated only of recommendatory

nature. He submitted that the Entitlement Rules have to be

applied to the facts and circumstances of each case to

determine the attributability of a disease.

11.The appellant submitted that the Entitlement Rules are

beneficial provisions and, therefore, to be interpreted liberally.

These rules are made with the object of granting disability

pension and not of denying it. He relied upon Rules 5, 9, 14

6

& 15 of the Entitlement Rules. The same are extracted as

under:

“Rule 5. The approach to the question of

entitlement to casualty pensionary awards and

evaluation of disabilities shall be based on the

following:-

Prior to and During Service

(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.

(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.

Rule 9.Onus of Proof. The claimant shall not be

called upon to prove the conditions of entitlement.

He/she will receive the benefit of any reasonable

doubt. This benefit will be given more liberally to

the claimant in field/afloat service cases.

Rule 14.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 course of the

disease will fall for acceptance on the basis of

aggravation.

(b)A disease which has led to an individual’s

discharge or death will ordinarily be deemed to

have arisen in service, if no note of it was

made at the time of the individual’s acceptance

for military service. However, if medical

7

opinion holds for reasons to be stated, that the

disease could not have been detected on

medical examination prior to acceptance for

service, the disease will not be deemed to have

arisen during service.

(c)If a disease is accepted as having arisen in

service, it must also be established that the

conditions of military service determined or

contributed to the onset of the disease and

that the conditions were due to the

circumstances of duty in military service.

Rule 15.The onset and progress of some diseases

are affected by environmental factors related to

service conditions, dietary compulsions, exposure to

noise, physical and mental stress and strain.

Diseases due to infection arising in service will

merit entitlement of attributability. Nevertheless,

attention must be given to the possibility of pre-

service history of such condition which, if proved,

could rule out entitlement of attributability but

would require consideration regarding aggravation.

For clinical discretion of common diseases reference

shall be made to the Guide to Medical Officers

(Military Pension) 1980, as amended from time to

time. The classification of diseases affected by

environmental factors in service is given in

Annexure III to these rules.”

12.According to the appellant, the High Court fell in grave

error in not considering the above stated rules. The rules are

statutory in character and, therefore, were mandatorily

required to be considered in deciding the attributability

aspect. The appellant submitted that since none of the above

8

stated rules or regulation were considered by the High Court,

the impugned judgment and order of the High Court is

required to be set aside.

13.The appellant further submitted that at the time of

entering into the service, on both occasions, he was found

medically fit in all respects. Neither the appellant had any

past psychiatric history prior to 26.6.1985 nor his family had

any background of psychiatric history. Thus the invaliding

disease arose during service and did not exist before joining

the army service. The appellant submitted that his case is

covered by Rules 5 and 14(b) of the Entitlement Rules.

According to him, the High Court was wrong in not giving the

benefit of Rule 15 of the Entitlement Rules.

14.The question whether a disability is attributable to or

aggravated by military service shall be determined under the

Rules in Appendix II. Relevant portion in Appendix II reads as

follows:

“2. Disablement or death shall be accepted as due

to military service provided it is certified that—

(a) the disablement is due to wound, injury or

disease which—

(i) is attributable to military service; or

9

(ii) existed before or arose during

military service and has been and

remains aggravated thereby;

(b) the death was due to or hastened by—

(i) a wound, injury or disease which

was attributable to military service;

or

(ii) the aggravation by military service

of a wound, injury or disease which

existed before or arose during

military service.

Note.— The rule also covers cases of death after

discharge/invaliding from service.

3. There must be a causal connection between

disablement or death and military service for

attributability or aggravation to be conceded.

4. In deciding on the issue of entitlement all the

evidence, both direct and circumstantial, will be

taken into account and the benefit of reasonable

doubt will be given to the claimant. This benefit will

be given more liberally to the claimant in field

service case.”

15.Regulation 423 deals with “Attributability to service” and

reads as under:

“423. Attributability to service.—(a) For the purpose

of determining whether the cause of a disability or

death 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. It is, however, essential to

establish whether the disability or death bore a

causal connection with the service conditions. All

evidence, 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

10

of these instructions, should be of a degree of

cogency, which though not reaching certainty,

nevertheless carry the 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 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 doubt could be given more liberally to the

individual, in cases occurring in field service/active

service areas.

(b) The cause of a disability or death resulting

from wound or injury, will be regarded as

attributable to service if the wound/injury was

sustained during the actual performance of ‘duty’ in

armed forces. In case of injuries which were self-

inflicted or due to an individual’s own serious

negligence or misconduct, the Board will also

comment how far the disability resulted from self-

infliction, negligence or misconduct.

(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

11

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.

(d) The question, whether a disability or death 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 Officer,

insofar 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 attributed to service will, however, be

decided by the pension sanctioning authority.

(e) To assist the medical officer who signs the

death certificate or the Medical Board in the case of

an invalid, the CO Unit will furnish a report on:

(i)AFMSF 81 in all cases other than those due to

injuries.

(ii)IAFY-2006 in all cases of injuries other than

battle injuries.

(f) In cases where award of disability pension or

reassessment of disabilities is concerned, a Medical

Board is always necessary and the certificate of a

single medical officer will not be accepted except in

case of stations where it is not possible or feasible

to assemble a regular Medical Board for such

purposes. The certificate of a single medical officer

in the latter case will be furnished on a Medical

Board form and countersigned by the ADMS

(Army)/DMS (Navy)/DMS (Air).”

12

16. In Union of India & Others v. Baljit Singh (1996) 11

SCC 315 this Court observed as under:

“6. ... It is seen that various criteria have been

prescribed in the guidelines under the Regulations

as to when the disease or injury is attributable to

the military service. It is seen that under Rule 173

disability pension would be computed only when

disability has occurred due to a wound, injury or

disease which is attributable to military service or

existed before or arose during military service and

has been and remains aggravated during the

military service. If these conditions are satisfied,

necessarily the incumbent is entitled to the

disability pension. This is made amply clear from

Clauses (a) to (d) of Para 7 which contemplates that

in respect of a disease the Rules enumerated

thereunder require to be observed. Clause (c)

provides that 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. Unless these conditions are

satisfied, it cannot be said that the sustenance of

injury per se is on account of military service. In

view of the report of the Medical Board of doctors, it

is not due to military service. The conclusion may

not have been satisfactorily reached that the injury

though sustained while in service, it was not on

account of military service. In each case, when a

disability pension is sought for and made a claim, it

must be affirmatively established, as a fact, as to

whether the injury sustained was due to military

service or was aggravated which contributed to

invalidation for the military service.”

13

17.A similar question came up for adjudication in the case

of Union of India & Others v. Dhir Singh China, Colonel

(Retd.) (2003) 2 SCC 382, wherein this Court in para 7 of the

said judgment observed as under:

“7. That leaves for consideration Regulation 53.

The said Regulation provides that on an officer

being compulsorily retired on account of age or on

completion of tenure, if suffering on retirement from

a disability attributable to or aggravated by military

service and recorded by service medical authority,

he may be granted, in addition to retiring pension, a

disability element as if he had been retired on

account of disability. It is not in dispute that the

respondent was compulsorily retired on attaining

the age of superannuation. The question, therefore,

which arises for consideration is whether he was

suffering, on retirement, from a disability

attributable to or aggravated by military service and

recorded by service medical authority. We have

already referred to the opinion of the Medical Board

which found that the two disabilities from which the

respondent was suffering were not attributable to or

aggravated by military service. Clearly therefore, the

opinion of the Medical Board ruled out the

applicability of Regulation 53 to the case of the

respondent. The diseases from which he was

suffering were not found to be attributable to or

aggravated by military service, and were in the

nature of constitutional diseases. Such being the

opinion of the Medical Board, in our view the

respondent can derive no benefit from Regulation

53. The opinion of the Medical Board has not been

assailed in this proceeding and, therefore, must be

accepted.”

14

18.A similar controversy came up before this Court in Union

of India & Others v. Keshar Singh (2007) 12 SCC 675, in

which this Court relied upon the Medical Board’s opinion to

the effect that the illness suffered by the respondent was not

attributable to military service.

19.In the instant case, the records reveal that, in the opinion

of the Medical Board, the condition of the appellant cannot be

said to have triggered on account of the military service. In

the opinion of the Medical Board, the disease was not at all

attributable to the military service.

20.We have heard learned counsel for the parties at length.

We are clearly of the view that the Medical Board is an expert

body and they take into consideration all relevant factors and

essential practice before arriving at any opinion and its

opinion is entitled to be given due weight, merit credence and

value.

21.In the instant case, the Medical Board has given

unanimous opinion that the disease of the appellant was

neither attributable to nor aggravated by the military service.

The findings of the Medical Board has been accepted by the

15

Division Bench of the High Court. Thus, in our considered

opinion, no interference is called for. The appellant is not

entitled to the disability pension. However, in case some

amount has ever been paid to the appellant towards the

disability pension, the same may not be recovered from him.

22.The appeal being devoid of any merit is accordingly

dismissed. However, in the facts and circumstances of the

case, we direct the parties to bear their own costs.

.………………………… J.

(Dalveer Bhandari)

………………………… .J.

(Deepak Verma)

New Delhi;

July 20, 2010

16