As per case facts, ex-servicemen were denied disability pension because Release Medical Boards opined their disabilities were 'NANA' (neither attributable nor aggravated by military service). Their intra-departmental appeals were dismissed. ...
No Acts & Articles mentioned in this case
2026 INSC 993
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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UNION
OF INDIA & ORS. …APPELLANT(S)
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COL. NC ISAAC (RETD.) …RESPONDENT(S)
With
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J U D G M E N T
Table of Contents
I. Introduction ................................................................................... 30
II. Governing Rules ........................................................................... 32
A. Background and Evolution of the Entitlement Rules 32
B. Pension Regulations for Army, 1961 33
C. Entitlement Rules for Casualty Pensionary Awards, 1982 38
D. Entitlement Rules for Casualty Pensionary Awards, 2008 42
III. Developments through Judicial Interpretation ........................... 48
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A. Position prior to Dharamvir Singh v. Union of India 48
B. Decision of this Court in Dharamvir 52
C. Decisions subsequent to Dharamvir 59
D. Recapitulation of Relevant High Court Orders 61
IV. Party Submissions ........................................................................ 65
A. Arguments advanced by Ld. Attorney General 65
B. Arguments advanced by Respondents 67
V. Analysis ......................................................................................... 70
A. What is the true purport of the Entitlement Rules 2008? 70
i. Promulgation or Issuance of Entitlement Rules 2008 73
ii. The Raksha Mantri Report’s Findings 74
B. Whether the Entitlement Rules 2008 make a significant
departure from the Entitlement Rules 1982? 82
i. No significant change in core scheme 84
ii. Limited Qualification – Rule 7’s proviso 90
VI. Conclusion ..................................................................................... 91
I. Introduction
1. Leave granted in Special Leave Petitions.
2.
The appeals before us are only a speck in comparison to the number
of similar matters that have already been taken up and dismissed by this
Court on delay and on merits. When civil appeals and special leave
petitions involving questions concerning disability element of service
pension (“disability pension”) of ex-servicemen were routinely listed
before us, many of them filed with enormous delay, we asked the learned
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Attorney General to inquire as to why the Union is preferring so many
appeals. We were concerned, not about the filing of appeals, but about
the system in which such disputes remained unresolved despite a
conclusive judgment of this Court. Nothing really happened thereafter. In
the meanwhile, appeals and Special Leave Petitions were being filed, and
this burgeoning docket had to be taken up for disposal. These matters
need not have been dealt with separately as there is no distinction
between these appeals and those that were dismissed, but as the learned
Attorney General addressed us on the merits of the matter, we considered
it appropriate to deal with the contentions and dispose them.
3. It is relevant to state that in each of these cases, a Release Medical
Board (“RMB”) had, at the first instance of assessment, opined that the
disability caused to an ex-serviceman was neither attributable nor
aggravated (“NANA”) by military service. Relying on the Medical Board’s
opinion, the intra-departmental appeals of the ex-servicemen were also
dismissed. Assailing these orders, the ex-servicemen went to the Armed
Forces Tribunal (“AFT”) or the High Courts, which interfered and
proceeded to grant disability pension on the premise that disability was
either attributable or aggravated (A/A) by military service. The present
appeals challenge both the AFT Orders and the orders of various High
Courts which confirmed the AFT orders.
Page 32 of 93
4. The controversy before us is confined to the entitlement to disability
element of service pension upon retirement, i.e., completion of service or
engagement.
5. For determining this controversy, it would be necessary for us to
examine the underlying legal framework, i.e., the Entitlement Rules for
Casualty Pensionary Awards to Armed Forces Personnel, 1982
(“Entitlement Rules 1982”), and Entitlement Rules for Casualty
Pensionary Awards to Armed Forces Personnel, 2008
1
(“Entitlement
Rules 2008”), the precedents on the subject and the respective
submissions of the parties.
II. Governing Rules
A. Background and Evolution of the Entitlement Rules
6.
Starting from the pre-independence era, against the backdrop of the
Indian freedom struggle and the Second World War, the British
Government promulgated the Pension Regulations of 1940, introducing
definitive regulations for pensions and other benefits for persons serving
in the army.
6.1 The period between 1943 and 1945 witnessed the active
involvement of Indian soldiers fighting for the British Armed Forces. During
1
There is much controversy about the very existence of such rules. This issue will be examined in the
latter part of this judgment.
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this period, the concept of a disability benefit was introduced for the first
time, adopting a liberal approach to its entitlement. Subsequently, the
notification of the Wartime Rules, 1946, introduced the principle of
attributability through the explicit use of phrases such as directly
attributable and materially aggravated.
6.2
Later, upon attaining Independence, the Army Act, 1950, the Air
Force Act, 1950, and the Navy Act, 1957, provided for dedicated pension
regulations. These regulations codified the substantive right to the grant
of disability pension under specified circumstances, which shall be
adverted to in detail later in this judgment.
6.3 Due to large-scale casualties during the unanticipated and tragic
Indo-China and Indo-Pak wars of 1962 and 1971, context-specific
entitlement rules were formulated on 26.12.1962, 16.12.1971, and
01.02.1972 to make special provisions covering cases of death and
disability.
B. Pension Regulations for Army, 1961
7.
In the year 1961, the Pension Regulations for Army, 1961 (“PRA
1961”) were issued, superseding the 1940 Regulations. The 1961 PRA
structurally categorised pensionary benefits based on rank and mode of
cessation.
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7.1 In so far as rank is concerned, Chapter II (Regulations 47 to 64) of
PRA 1961 governs the Disability Pensionary Awards for Commissioned
Officers, whereas Chapter III (Regulations 172 to 190) delineates the
parallel framework for Junior Commissioned Officers (JCOs) and Other
Ranks (ORs).
7.2
In so far as cessation is concerned, the regulations categorise the
modes of cessation into, i) invalidment from service before
superannuation and ii) normal retirement on superannuation or end of
service. Normal retirement occurs when an individual successfully
completes their prescribed service obligation, tenure, or age limit,
representing a routine, non- medical exit from the forces. In contrast,
medical invalidment occurs when a serviceman’s career is prematurely
terminated (boarded out) by an Invaliding Board because they are found
medically unfit for further service. When an individual is medically
invalided, the exact entitlement crystallizes, based on whether or not the
medical board classifies the disability as attributable to or aggravated by
military service.
2
If the invalidating disability is classified as A/A, the soldier
is granted disability pension. Conversely, if the soldier is invalided due to
a NANA disability, they are not entitled to a disability pension but may
receive an “invalid pension”, as a financial safety net, provided they have
2
Disability should be assessed at 20% or more as per Regulation 179 of 2008 Pension Regulations
read with Rule 4 of the Entitlement Rules 2008.
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completed the requisite minimum qualifying service, which is generally 10
years. If they are invalidated without the required service, they are entitled
to an “invalid gratuity”, which is a one-time payment.
3
7.3 For cases involving premature medical invalidation, Regulation 48
for officers and Regulation 173 for JCOs and ORs establish the primary
threshold for the grant of a full disability pension. These provisions
mandated that if an individual is invalidated from service on account of a
disability assessed at 20% or over, and such disability is either attributable
to or aggravated by military service, they will be awarded a disability
pension comprising both a service element and a disability element -
“Reg 48 - Disability Pension When Admissible -
(a) Unless otherwise specifically provided a disability pension
consisting of service element and disability element may be
granted to an officer who is invalided out of service on account
of a disability which is attributable to or aggravated by military
service in non-battle casualty cases and is assessed at 20%
or more.
(b) The question whether a disability is attributable to or
aggravated by military service shall be determined under the
rules in Appendix II.
Reg 173 - Primary conditions for the grant of disability
pension-
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% or over.
The question whether a disability is attributable to or
aggravated by military service shall be determined under the
rule in Appendix II.”
3
Regulation 59, Army Pension Regulations, 2008.
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7.4 Expanding this scheme, Regulation 173A introduces a legal fiction
for JCOs and ORs permanently placed in a Low Medical Category (LMC)
i.e., if such personnel are discharged because no suitable alternative
employment could be provided then they are legally deemed to have been
invalidated from service -
“Reg 173A - Individuals discharged on account of their
being permanently in low medical category-
Individuals who are placed in a lower medical category (other
than ‘E’) permanently and who are discharged because no
alternative employment in their own trade/category suitable to
their low medical category could be provided or who are
unwilling to accept the alternative employment or who having
retained in alternative appointment are discharged before
completion of their engagement, shall be deemed to have
been invalided from service for the purpose of the entitlement
rules laid down in Appendix II to these Regulations.”
8. In the present batch of appeals, the expression “disability pension”
has frequently been used loosely in the pleadings, obscuring a subtle
distinction between an invalid pension and a disability pension. We have,
however, maintained that distinction by referring to the first category of as
cases of invalidation and the latter as cases involving regular discharge
from service. We will now deal with the latter category.
9. Dealing with the latter class of personnel who have retired from
service in normal course, Regulation 53 for officers and Regulation 179
for JCOs and ORs govern individuals who retired upon reaching the
prescribed age, completion of tenure, or service limits. Under these
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provisions, if a soldier suffered from a disability upon retirement that was
accepted as either attributable to or aggravated by military service (A/A),
they were entitled to receive a “disability element” in addition to their
ordinary service pension -
“Reg 53- Officers Compulsorily Retired on account of Age
or on Completion of Tenure-
(1) An officer retired on completion of tenure or on completion
of terms of engagement or on attaining the age of 50 years
(irrespective of their period of engagement), if found suffering
from a disability attributable to or aggravated by military
Service and recorded by service Medical Authorities, shall be
deemed to have been invalided out of service and shall be
granted disability pension from the date of retirement, if the
accepted degree of disability is 20% or more, and service
element if the degree of disability is less than 20%. The retiring
pension/retiring gratuity, if already sanctioned and paid, shall
be adjusted against the disability pension/service element, as
the case may be.
(2) The disability element referred to in clause (1) above shall
be assessed on the accepted degree of disablement at the
time of retirement/discharge on the basis of the rank held on
the date on which the wound/injury was sustained or in the
case of disease on the date of first removal from duty on
account of that disease.
Note: In the case of an officer discharged on fulfilling the terms
of his retirement, his unwillingness to continue in service
beyond the period of his engagement should not effect his title
to the disability element under the provision of the above
regulation.
Reg 179 - Disability at the time of retirement/discharge -
An individual retired/discharged on completion of tenure or on
completion of service limits or on completion of terms of
engagement or on attaining the age of 50 years (irrespective
of their period of engagement), if found suffering from a
disability attributable to or aggravated by military service and
recorded by Service Medical Authorities, shall be deemed to
have been invalided out of service and shall be granted
disability pension from the date of retirement, if the accepted
degree of disability is 20% or more, and service element if the
degree of disability is less than 20%. The service
pension/service gratuity, if already sanctioned and paid, shall
Page 38 of 93
be adjusted against the disability pension/service element, as
the case may be.
(2) The disability element referred to in clause (1) above shall
be assessed on the accepted degree of disablement at the
time of retirement/discharge on the basis of the rank held on
the date on which the wound/injury was sustained or in the
case of disease on the date of first removal from duty on
account of that disease.”
10.
The fundamental question of whether a disability is attributable to or
aggravated by military service has to be determined under the
accompanying Entitlement Rules.
4
Therefore, while the Pension
Regulations of 1961 established the substantive right to the award, the
precise manner of determining attributability, aggravation, and the degree
of disability remains strictly governed by the prevailing Entitlement Rules.
C. Entitlement Rules for Casualty Pensionary Awards, 1982
11.
To comprehend the core principles governing disability pension, it is
essential to first examine the Entitlement Rules 1982. On 22.11.1983, the
consolidated Entitlement Rules for Casualty Pensionary Awards, 1982,
were notified, and made applicable to personnel who became non-
effective from 01.01.1982.
11.1 The foundation of the framework lies in the twin presumptions
stipulated under Rule 5. It mandates that a service member is presumed
to have been in sound physical and mental condition upon entering
service, except for any physical disabilities explicitly noted at the time of
4
See Regulations 48 and 173 of the PRA, 1961, read with the Entitlement Rules 1982.
Page 39 of 93
entrance. Consequently, if a member is discharged on medical grounds,
Rule 5 presumes that any deterioration in their health occurred due to
military service. The said presumption provision reads as follows -
“Rule 5 – The approach to the question of entitlement to
casualty pensionary awards and evaluation of disabilities
shall be based on the following presumptions: --
(a) 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.”
11.2 Rule 5 operates in tandem with Rule 4, which dictates invalidation
from service as a pre-condition for entitlement to disability pension. Rule
4 further clarifies that personnel placed permanently in a lower medical
category and subsequently discharged are legally deemed to have been
invalidated out of service -
“Rule 4 - Invaliding from service is a necessary condition for
grant of disability pension. An individual who, at the time of his
release under the Release Regulations is in a lower medical
category than that in which he was recruited will be treated as
invalidated from service. JCO/OR and equivalents in other
services who are placed permanently in a medical category
other than ‘A’ and are discharged because no alternative
employment suitable to their low medical category can be
provided, as well as those who having been retained in
alternative employment will be deemed to have been
invalidated out of service.”
11.3 Building upon these initial presumptions, Rules 6 and 8 define the
exact medical parameters for disablement or death on the one hand and
attributability/aggravation by military service on the other hand. Disability
or death is accepted only when it is certified by the appropriate medical
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authority and attributability/aggravation is conceded only when there is a
causal connection between death/disablement and military service and
certified by appropriate medical authority. These two rules read as follows
“Rule 6- Disablement or death shall be accepted as due to
military service provided it is certified by appropriate
medical authority that -
(a) The disablement is due to a wound, injury or disease which
(i) is attributable to military service, or
(ii) existed before or arose during military service and has been
and remains aggravated thereby. This will also include the
precipitating /hastening of the onset of a disability.
(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.
Rule 8- Attributability/aggravation shall be conceded if casual
connection between death/disablement and military service is
certified by appropriate medical authority.”
11.4 The most crucial aspect of these rules is the burden of proof , which
is addressed in Rule 9. Serving as a beneficial measure, this rule insulates
the claimant-serviceman from being called upon to prove the conditions
of their entitlement. Instead, the claimant legally receives the benefit of
any reasonable doubt, a benefit that this rule directs to be applied even
more liberally for those involved in field or afloat service. Rule 9 reads
thus:
“Rule 9 - 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.”
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11.5 In the same breath, it is necessary to mention and extract Rule 20
of the Entitlement Rules 1982, which speaks about aggravation -
“Rule 20 - AGGRAVATION: If it is established that the
disability was not caused by service, attributability shall not be
conceded, however, aggravation by service is to be accepted
unless any worsening in his condition was not due to his
service or worsening did not persist on the date of discharge/
claim.”
11.6 The Entitlement Rules 1982 also provide specific operational
frameworks for assessing injuries and diseases under Rules 14, 15, and
23. Under Rule 14, injuries sustained while a person is on duty are
deemed to have resulted from military service, safeguarding the soldier
unless there is evidence of serious negligence, misconduct, or self-
infliction. For diseases, Rule 15 recognises that even if the harsh
conditions of military service did not directly cause the onset of an illness,
but materially influenced or worsened its subsequent course, the claim
falls squarely within the bounds of acceptance based on aggravation. To
finalise the process, Rule 23 clarifies that assessment of the degree of
this disability is entirely a matter of medical judgment, determined purely
by comparing the disabled individual to a normal healthy person of the
same age and sex, without factoring in extraneous circumstances or the
individual’s earning capacity:
“Rule 23- Assessment of degree of disability is entirely a
matter of medical judgement and is the responsibility of
the medical authorities.
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The degree of disablement due to service/duty of a member of
the military forces shall be assessed by making a comparison
between the conditions of the member as so disabled and the
conditions of a normal healthy person of same age and sex,
without taking into account the earning capacity of the member
in his disable condition in his own or any other specific trade
or occupation, and without taking into account the effects of
any individual factor or extraneous circumstances.
Where disablement is due to more than one disability a
composite assessment of the degree of disablement shall also
be made by reference to the combined effect of all such
disabilities in addition to separate assessment for each
disability...”
12.
Between 1996 and 2001, the Government of India issued various
policy letters bringing about certain changes, including the aftermath of
the Fifth Central Pay Commission, which introduced, among other things,
the concept of broad-banding of disability percentage on invalidment. It is
stated in some of these policy letters that the Pension Regulations of the
three services would in due course be correspondingly amended. In 2002,
the Guide to Medical Officers (Military Pensions) was promulgated as a
technical, disease- specific guide to assist medical officers in applying the
Entitlement Rules and in the assessment of the percentage of disability,
retaining a liberal approach consistent with the Entitlement Rules 1982.
D. Entitlement Rules for Casualty Pensionary Awards, 2008
13.
Learned Attorney General submits that on 18.01.2010, the
Entitlement Rules 1982 were superseded with effect from 1
st
January
2008 and the Entitlement Rules 2008 were brought into force.
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13.1 Before we deal with the Entitlement Rules 2008, it is necessary for
us to mention that there is a great amount of uncertainty about the very
existence of the Entitlement Rules 2008. This is not a casual statement
but an enquiry which eluded this Court from time to time. However, as the
Ld. AG insisted on the existence of these rules, for completion of
narration, we will deal with this and the Entitlement Rules 2008 as they
are presented before us, before entering into a detailed discussion.
13.2 Ld. AG submits that certain focal changes were made under the
Entitlement Rules 2008, such as the removal of the presumption clause
and the addition of the causal connection requirement to prove
attributability. It is submitted that Rule 5 formally removes the ipso facto
presumption of attributability by altering the sacrosanct weightage
attached to the medical test conducted at the entry stage and that the
mere manifestation of a disease during military service does not per se
establish attributability or aggravation. According to the Learned AG, this
rule limits initial medical examination to a broad physical check and is not
exhaustive; hence, it may fail to detect dormant, hereditary, constitutional,
or congenital diseases that can manifest later in life irrespective of service
conditions -
“Rule 5 - The medical test at the time of entry is not exhaustive,
but its scope is limited to broad physical examination.
Therefore, it may not detect some dormant disease. Besides,
certain hereditary constitutional and congenital diseases may
manifest later in life, irrespective of service conditions. The
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mere fact that a disease has manifested during military service
does not per se establish attributability to or aggravation by
military service.”
13.3
Rule 4 outlines the foundational preconditions concerning
invalidment from service. Rule 4(a) clearly dictates that invalidation with a
disablement caused by service factors is a condition precedent for
granting a disability pension. Crucially, however, it preserves the right to
a “disability element” for personnel who retire or are discharged in a low
medical category upon completing their terms of engagement, provided
the disability is attributable to or aggravated by military service and
assessed at not less than 20%.
5
Rules 4(b) and 4(c) expand on this by
clarifying that individuals boarded out on medical grounds before
completing their engagement are treated as invalided. Furthermore, a
legal fiction of “deemed invalidment” is created for Personnel Below
Officer Rank (PBOR) placed in a permanent low medical category who
are discharged because suitable alternative employment cannot be
provided, they refuse such employment, or they are discharged before
their engagement ends despite being retained in an alternative role -
Rule 4- Invalidment from Service :
(a) Invalidation from service with disablement caused by
service factors is a condition precedent for grant of disability
pension. However, disability element will also be admissible to
personnel who retire or are discharged on completion of terms
of engagement in low medical category on account of disability
attributable to or aggravated by military service, provided the
disability is accepted as not less than 20%.
5
Identical to the deeming fiction under erstwhile Rule 4 of 1982 Entitlement Rules.
Page 45 of 93
(b) An individual who is boarded out of service on medical
grounds before completion of terms of engagement shall be
treated as invalided from service.
(c) PBOR and equivalent ranks in other services who are
placed permanently in a medical category other than SHAPE
1 or equivalent and are discharged because (i) no alternative
employment suitable to their low medical category can be
provided, or, (ii) they are unwilling to accept alternative
employment, or, (iii) they having been retained in alternative
employment are discharged before the completion of their
engagement, shall be deemed to have been invalided out of
service.
13.4
This is intrinsically linked to Rule 6, which imposes a strict
requirement that a definitive causal connection between the disability (or
death) and military service must be affirmatively established by the
appropriate authorities to grant a casualty award -
“Rule 6- Causal Connection- For award of disability
pension/special family pension, a causal connection between
disability or death and military service has to be established by
appropriate authorities.”
13.5 Despite this stricter causal threshold, Rule 7 retains the most
contentious protective procedural shield for the servicemen regarding the
onus of proof. The onus of proof contemplated under Rule 9 of the
Entitlement Rules 1982 is modified and has been subjected to a
quintessential 15 years’ time period requirement. It states that, ordinarily,
the claimant will not be called upon to prove the conditions of entitlement,
transferring this burden to the authorities. The only exception provided is
when a claim is preferred after 15 years, by which time service documents
are typically destroyed, under which circumstances the onus to prove
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entitlement shifts to the claimant. Rule 7 of the present Entitlement Rules
2008, as amended, reads thus -
“Rule 7- Onus of Proof - Ordinarily the claimant will not be
called upon to prove the condition of entitlement. However,
where the claim is preferred after 15 years of
discharge/retirement/invalidment/release by which time the
service documents of the claimant are destroyed after the
prescribed retention period, the onus to prove the entitlement
would lie on the claimant.”
13.6
While the Entitlement Rules 1982 deemed that discharge or death
is deemed to have arisen in service if on the date of entry, no note was
made by RMB, the amended Rule 10 introduces the “causal connection”
which requires twin conditions to be satisfied in order to attribute the
injury/disease to military service. Rule 10(b)(iii) is significant as it supplies
a distinct proviso for cases where the cause of the disease is not known
at all. It concedes attributability in case the cause of the disease is
unknown. In substance, this proviso is the direct successor to Rule 20(a)
of the Entitlement Rules 1982-
“Rule 10 – Attributability
(a) Injuries:
In respect of accidents or injuries, the following rules shall be
observed:
(i) Injuries sustained when the individual is ‘on duty’, as
defined shall be treated as attributable to military service,
(provided a nexus between injury and military service is
established).
(ii) In cases of self-inflicted injuries while ‘on duty’,
attributability shall not be conceded unless it is established that
service factors were responsible for such action.
(b) Diseases:
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(i) For acceptance of a disease as attributable to military
service, the following two conditions must be satisfied
simultaneously:-
a) That the disease has arisen during the period of
military service, and
b) That the disease has been caused by the conditions
of employment in military service.
(ii) Diseases due to infection arising in service other than
that transmitted through sexual contact shall merit an
entitlement of attributability and where the disease may have
been contacted prior to enrolment or during leave, the
incubation period of the disease will be taken into
consideration on the basis of clinical course as determined by
the competent medical authority.
(iii) If nothing at all is known about the cause of disease
and the presumption of the entitlement in favour of the
claimant is not rebutted, attributability should be conceded on
the basis of the clinical picture and current scientific medical
application.
(iv) When the diagnosis and/or treatment of a disease
was faulty, unsatisfactory or delayed due to exigencies of
service, disability caused due to any adverse effects arising as
a complication shall be conceded as attributable.”
13.7 Rule 11 specifically provides for the additional criteria on
aggravation in the following words -
“Rule 11 – Aggravation - A disability shall be conceded
aggravated by service if its onset is hastened or the
subsequent course is worsened by specific conditions of
military service, such as posted in places of extreme climatic
conditions, environmental factors related to service conditions
e.g., field operations, High Altitudes, etc.”
13.8 It is necessary to read these provisions with Regulation 423(a) of
the Regulations for the Medical Services of the Armed Forces, 2010
("RMSAF"), which governs the medical process by which attributability
and aggravation are determined, and provides as follows -
“Regulation 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
Page 48 of 93
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 the benefit of
reasonable doubt, if any, will be given to the individual…”
13.9 While the Ld. AG submits that the Entitlement Rules 2008 constitute
a fundamental departure in the framework for granting or rejecting the
disability element of service pension, learned counsel for the respondent-
ex-servicemen vehemently counter this proposition. They contend that the
foundational principles of the Entitlement Rules 1982 remain virtually
unaltered, characterizing the Entitlement Rules 2008 as introducing mere
changes in form rather than any abrogation of substantive rights. It is their
submission that the beneficial protections enshrined in the Entitlement
Rules 1982 continue to flow seamlessly into the 2008 regime. Before we
consider the changes, if any, brought about by the Entitlement Rules
2008, it will be beneficial to consult the legal precedents on the subject.
These precedents existed before the substantive decision of this Court in
Dharamvir Singh v. Union of India
6
was delivered.
III. Developments through Judicial Interpretation
A. Position prior to Dharamvir Singh v. Union of India
6
(2013) 7 SCC 316.
Page 49 of 93
14. Ld. AG placed reliance on Secretary, Ministry of Defence v. A.V.
Damodaran
7
to submit that the fact that a disease arising during service
would not suffice by itself for an entitlement to disability element unless
the conditions of military service determined or contributed to its onset. A
perusal of A.V. Damodaran’s case shows that the original applicant
therein was enrolled in Army in 1979 and was discharged on 30.06.1984
owing to being diagnosed with ‘Schizophrenia’. Relying on Regulation 173
and Regulations 423 on ‘Attributability of service’ of Pension Regulations
for the Army it was observed that if a disease is accepted as having arisen
in service, it must also be established that the conditions of military service
contributed to onset of disease. Thus, since the medical Board had opined
the disability to be ‘NANA’, this Court held that Respondent was not
entitled to disability pension, however, any amount already paid was
directed not to be recovered.
14.1 Ld. AG further submitted that in a catena of cases prior to
Dharamvir, Disability Pension was outrightly denied. Some of these cases
are briefly discussed below -
14.2 In Controller of Defence Accounts (Pension) and Ors. v. S.
Balachandran Nair
8
case, the Respondent had joined the Army in 1972
and was discharged from service on account of illness identified as
7
(2009) 9 SCC 140.
8
(2005) 13 SCC 128.
Page 50 of 93
‘anxiety neurosis’. Relying upon dicta in Union of India vs. Baljit Singh
9
as
well as Union of India vs. Dhir Singh China
10
, it was held that where the
Medical Board found that there was no proof of injury having been
sustained due to military service/ attributable thereto, the direction to pay
disability pension was not correct. This Court held that Respondent was
not entitled to disability pension but payment already made with regard to
disability pension was directed not to be recovered.
14.3 In Union of India and Ors. v. Ajay Wahi
11
case, Respondent was
commissioned on 27.02.1977 and opted for invalidment/ pre- mature
retirement on 20.10.1994 after being diagnosed with Bronchial Asthma
and Low Backache by Medical Board (the same being opined as ‘NANA’).
Herein, this Court observed that an officer is entitled for disability pension
only when he is invalided out of service on account of disability attributable
to military service or aggravated thereby and shall not be entitled for
disability pension in case of voluntary retirement, unless it is found and
held that the officer deserved to be invalided out of service on account of
disability attributable to military service but same was not granted for
unjustified reasons. Hence, Disability Pension was denied in this case.
9
(1996) 11 SCC 315.
10
(2003) 2 SCC 382.
11
(2010) 11 SCC 213.
Page 51 of 93
14.4 In Union of India and Ors. v. Surinder Singh Rathore
12
case, the
Respondent was employed as a Signal Man in the army on 05.01.1985
and subsequently, released from service in low medical category as
suffering from ‘Maculopathy Eye’ opined as ‘NANA’. Relying on Union of
India vs. Baljit Singh
13
it was observed that in each case when a disability
pension is sought for making a claim, it must be affirmatively established
as to whether the injury sustained was due to military service or was
aggravated which contributed to invalidation for military service. Hence,
Disability Pension was denied in this case also.
14.5 In Union of India and Anr. v. Talwinder Singh
14
case, the
Respondent was enrolled for Infantry on 23.05.1987 and placed in low
medical category in 1990. The Release Medical Board opined that the
attributability/aggravation factors of disability “perforating injury left eye”
were to be assessed at 30% for life and ‘NANA’. Relying on Regulation
179 of Pension Regulation of Army (PRA) as well as a catena of earlier
verdicts such as in Union of India vs. Baljit Singh, Regional Director, E.S.I.
Corporation vs. Francis De Costa,
15
it was observed that if medical board
records any specific finding that a disability is NANA, the same cannot be
eschewed for the reason that the Medical board is a specialized authority
12
(2008) 5 SCC 747.
13
(1996) 11 SCC 315.
14
(2012) 5 SCC 480.
15
(1996) 6 SCC 1.
Page 52 of 93
comprising of expert medical doctors. The view taken in Secretary,
Ministry of Defence vs. Ajit Singh
16
was further reiterated i.e., a person
claiming disability pension must be able to show a reasonable nexus
between act, omission or commission resulting in injury to person along
with the normal expected standard of duties and way of life expected from
such person. Hence, this Court again denied disability pension.
14.6 Resultantly, Ld. AG relying on the above cases, submitted that
entitlement to disability element is not an automatic consequence of any
illness or disability occurring or manifesting during military service. The
mere fact that the individual was medically fit at enrolment and
subsequently developed a disease establishes only the time of its
manifestation; it does not establish the presumption that the disease was
caused or aggravated by service.
B. Decision of this Court in Dharamvir
15. Ld. AG also submitted that the case of Dharamvir Singh v. Union of
India
17
(“Dharamvir”) was decided on the basis of Entitlement Rules 1982
whereas the present Entitlement Rules 2008 had materially altered the
presumptive framework by expressly recognising that manifestation of a
disease during service does not per se establish attributability or
aggravation.
16
(2009) 7 SCC 328.
17
(2013) 7 SCC 316.
Page 53 of 93
15.1 At this stage, it is necessary to examine Dharamvir’s case wherein
a Sepoy in the Indian Army was boarded out of service with effect from
01.04.1994 on ground of 20% permanent disability owing to ‘generalized
seizure (epilepsy)’ which was considered to be ‘NANA’, leading to a
rejection of the disability pension. Aggrieved, he filed a Writ Petition at the
High Court, wherein a Single Judge granted disability pension but a
Division Bench set aside the relief in an appeal filed by Union of India.
When the case reached the Supreme Court, the following issues were
framed –
“2. The questions involved in this case are:
2.1. 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?
2.2. Whether the appellant is entitled for disability pension?”
15.2 The Court, after closely reading the Pension Regulations for the
Army, 1961, Entitlement Rules for Casualty Pensionary Awards, 1982 and
the Guide to Medical Officers (Military Pensions), 2002, reached the
following conclusions –
“29. A conjoint reading of various provisions, reproduced
above, makes it clear that:
29.1. Disability pension to be granted to an individual who is
invalided from service on account of a disability which is
attributable to or aggravated by military service in non-battle
casualty and is assessed at 20% or over. The question
whether a disability is attributable to or aggravated by military
service to be determined under the Entitlement Rules for
Casualty Pensionary Awards, 1982 of Appendix II (Regulation
173).
Page 54 of 93
29.2. 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 read with Rule 14(b)].
29.3. The onus of proof is not on the claimant (employee), the
corollary is that onus of proof that the condition for non-
entitlement 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).
29.4. 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 the conditions were due to the circumstances
of duty in military service [Rule 14(c)].
29.5. 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 [Rule 14(b)].
29.6. 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 [Rule 14(b)]; and
29.7. It is mandatory for the Medical Board to follow the
guidelines laid down in Chapter II of the Guide to Medical
Officers (Military Pensions), 2002 — “Entitlement: General
Principles”, including Paras 7, 8 and 9 as referred to above
(para 27).
30. We, accordingly, answer both the questions in affirmative
in favour of the appellant and against the respondents.
31. In the present case it is undisputed that no note of any
disease has been recorded at the time of the 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 the absence of any note in the
service record at the time of acceptance of joining of the
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
Page 55 of 93
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 Para 2 of the opinion of the Medical Board, which
is as follows:
“(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 military service”
32. Para 1 of Chapter II — “Entitlement: General Principles”
specifically stipulates that certificate of a constituted medical
authority vis-à-vis 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, pre- and post-service
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, in
clear terms and language which the Pension Sanctioning
Authority would be able to appreciate.
33. 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 the Entitlement Rules for
Casualty Pensionary Awards, 1982, the appellant is entitled
for presumption and benefit of presumption in his favour. In the
absence of any evidence on record to show that the appellant
was suffering from “generalised 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 56 of 93
34. As per Rule 423(a) of the 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 Para 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 causal connection
with the service conditions.
35. 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 31-7-2009 in Union of India v. Dharamvir
Singh and uphold the decision of the learned Single Judge
dated 20-5-. 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 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 the order passed by the learned Single Judge. No
costs.”
15.3 In view of above observations, it is clear that the court relied on
Regulation 173 of PRA, 1961 as well as Rule 5 of Entitlement Rules 1982
to note 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. As regards ‘onus of proof’, it
was considered to be not on the claimant as per Rule 9 of Entitlement
Rules 1982. Rule 423 of Chapter VIII of General Rules of Guide to Medical
Officers was also considered to suggest that direct and circumstantial
evidence must be taken into account and benefit of doubt must always go
to the individual.
Page 57 of 93
15.4 Further, Para 7 of Chapter II of Guide to Medical Officers was relied
upon to suggest the evidentiary value attached to the record of a
member’s condition at commencement of service i.e., pre-enrolment
history of an injury or disease like epilepsy, mental disorder and so on.
15.5 Lastly, Dharamvir observed that the pension sanctioning authority
mechanically passed the impugned order based on a report of the Medical
Board which gave no reason in support of its opinion. It concluded that in
absence of any evidence on record to show that the Appellant was
suffering from ‘generalized seizure’ at the time of acceptance of his
service, it will be presumed that 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.
15.6 Principles laid down in Dharamvir can be summarised as follows -
a) Grant of Disability Pension to an individual who is invalided from
service on account of a disability which is attributable to or aggravated
(A/A) by military service in non-battle casualty and is assessed at 20%
or over, is to be determined under Regulation 173 of Entitlement Rules
for Casualty Pensionary Awards, 1982 of Appendix II.
b) A member is to be presumed in sound condition upon entering service
and in the event of subsequently being discharged from service on
medical grounds, presumption will arise if any deterioration in health
Page 58 of 93
occurs due to service [Rule 5 read with Rule 14(b) of the Entitlement
Rules 1982].
c) The onus of proof is not on the claimant (employee), but on the
employer. A claimant has a right to derive benefit of any reasonable
doubt. [Rule 9 of the Entitlement Rules 1982].
d) 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. [Rule 14(c) of
Entitlement Rules 1982].
e) If no record 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 [Rule 14(b) of Entitlement Rules 1982].
f) Medical Board shall state reasons if it 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 [Rule 14(b) of Entitlement Rules 1982]
g) Medical Board shall mandatorily follow the guidelines laid down in
Chapter II of the Guide to Medical Officers (Military Pensions), 2002 —
“Entitlement: General Principles”. [Para 27 of Entitlement Rules 1982 ].
Page 59 of 93
15.7 Thus, Dharamvir became an authority for its conclusions on
presumption of attributability, causality and burden of proof to grant
disability pension to ex-servicemen.
C. Decisions subsequent to Dharamvir
16. In the above context, Ld. AG made a grievance that certain Tribunal
Orders
18
had mechanically followed Dharamvir without adequately
examining the governing Rules, the mode of cessation of service, nature
of disease, medical opinion or factual circumstance in which the principles
formulated in this case arose. To further his submission about the
necessity for fact- specific application of Dharamvir principles, Ld. AG
pointed towards the dicta in Ex. Gnr. Laxmanram Poonia v. Union of
India
19
as well as Narsingh Yadav vs. Union of India
20
, wherein it was
observed that without considering the aetiology of disease and other
particulars of individual case, non-detection at entry would not necessarily
conclude the medical question of service led causation.
16.1 In this context, it is relevant to note the decision in Narsingh Yadav ,
wherein this Court observed as follows -
“15. We find that it is not mechanical application of the principle
that any disorder not mentioned at the time of enrolment is
presumed to be attributed to or aggravated by military service.
18
OA 174/2023 Order 17.08.2023 AFT New Delhi, OA 1336/2023 Order 08.01.2024 AFT New Delhi,
OA 1733/2023 Order 15.05.2024 AFT New Delhi, ОА 62/2022 Order 18.04.2023 AFT New Delhi, OA
411/2020 Order 13.02.2024 AFT New Delhi, OA 1865/2021 Order 16.11.2022 AFT Chandigarh, OA
1263/2020 Order 01.04.2022 AFT Chandigarh, OA 1165/2021 Order 01.02.2022 AFT Chandigarh
19
(2017) 4 SCC 697.
20
(2019) 9 SCC 667.
Page 60 of 93
The question is as to whether the person was posted in harsh
and adverse conditions which led to mental imbalance.
…
18. Therefore, each case has to be examined whether the
duties assigned to the individual may have led to stress and
strain leading to Psychosis and psychoneurosis. Relapsing
forms of mental disorders which have intervals of normality
and epilepsy are undetectable diseases while carrying out
physical examination on enrolment, unless adequate history is
given at the time by the member.”
16.2 In Rajumon T.M. v. Union of India,
21
this Court discussed the
question of rendering reasons for opinion of Medical Board and held that
if the serviceman is denied disability pension on the basis of an
unreasoned Medical Board report, the decision of board will be construed
to be unsustainable in law.
16.3 It is appropriate to state that post- 2013, the legal landscape mostly
consisted of cases which followed the dictum in Dharamvir. Accordingly,
the Respondents relied on cases such as Union of India vs. Rajbir Singh
22
where this Court followed Dharamvir and emphasised that attributability
or aggravation of a disability must be determined under the Entitlement
Rules for Casualty Pensionary Awards, 1982, particularly Rule 5.
Following Dharamvir, this Court held that where a serviceman is
discharged on medical grounds and the Medical Board gives no reasons
to rebut the presumption, the disability is presumed to have arisen in, or
21
2025 SCC OnLine SC 1064.
22
(2015) 12 SCC 264.
Page 61 of 93
been attributable to, service. The same principle was followed in Union of
India v. Manjeet Singh.
23
16.4 Further, in Union of India vs. Angad Singh Titaria
24
where this Court,
relying on Regulation 153 of the Pension Regulations for the Army and
Rules 4, 5, 9 and 14 of the Entitlement Rules, emphasised that a mere
conclusion by the Medical Board that a disability is not attributable to
service, without reasons, demonstrates non-application of mind and
cannot defeat the claim for disability pension. The same requirement of
onus and reasons was reiterated in Bijender Singh v. Union of India .
25
16.5
Thus, Post-2013 landscape saw the following propositions emerge
- Firstly, that this Court rarely passed any order relying upon the
Entitlement Rules 2008; Secondly, High Courts (relying on Gawas Anil
Madso, K. Bhaskaran, Col. Balbir Singh) brushing aside Entitlement Rules
2008, also arrived at the conclusion that Entitlement Rules 2008 were
more in form than in substance and that any alteration in method of
determination of beneficial provision under the Entitlement Rules 1982
would amount to alteration in service condition of personnel to their
disadvantage, which was legally impermissible.
D. Recapitulation of Relevant High Court Orders
23
(2015) 12 SCC 275.
24
(2015) 12 SCC 257.
25
2025 SCC OnLine SC 895.
Page 62 of 93
17. A bifurcation was also made by Ld. AG between a large number of
High Court Orders post 01.01.2008 where the reasoning appeared to start
and end with Dharamvir /fitness at enrolment/subsequent onset, without
applying the changed test of causal connection of Entitlement Rules 2008,
without a disease- specific GMO analysis and a separate category of
longer High Court verdicts which were not cryptic in form but remained
vulnerable because they continued to use the Entitlement Rules 1982
presumption and burden framework.
17.1 Ld. AG pointed out cases such as Union of India vs. Ex Sub Gawas
Anil Madso
26
, where the Delhi High Court accepted that the Entitlement
Rules 2008 removed the earlier presumption and that manifestation
during service did not per se establish attributability. It was submitted
before us that Gawas Anil Madso despite relying on Dharamvir Singh had
observed that the mere fact that a disease arises during service does not,
by itself, establish that it is attributable to military service. On facts,
however, the Court declined to interfere with the Armed Forces Tribunal’s
grant of disability pension. It nevertheless held that the RMB must identify
some other cause for the disease, and even treated the relationship
between stress and diabetes as a matter of “common knowledge”. Ld. AG
relied on Union of India v. Ex. Sep. R. Munusamy
27
to submit that the
26
2025 SCC OnLine Del 2018.
27
2022 SCC OnLine SC 892.
Page 63 of 93
Tribunal could not sit in appeal over the expert opinion of a Medical Board
and that, absent any demonstrated infirmity in the decision- making
process of the Medical Board, there was no justification even for directing
a fresh medical assessment.
17.2 Ld. AG also submitted that in Col. Balbir Singh vs. Union of India
28
,
the Delhi High Court noted the altered 2008 regime but did not enter a
comparison. It reasoned, on fact, that the possibility of earlier field service
precipitating later disease could not be ruled out. It is relevant to note that
upon a symbiotic reading of the Rules, the Court culled out the following
points -
“Para 68. From a plain reading of Regulation 423(a) of the
Regulations for the Medical Services of the Armed Forces,
2010, it is clear that whether a disability or death occurs in a
Field/Active service area or under normal Peace conditions is
immaterial.
Para 69. Nonetheless, it must be noted that even in Peace
Stations, military service is inherently stressful due to a
combination of factors such as strict discipline, long working
hours, limited personal freedom, and constant readiness for
deployment. The psychological burden of being away from
family, living in isolated or challenging environments, and
coping with the uncertainty of sudden transfers or duties adds
to this strain. Additionally, the toll of continuous combat
training further contributes to mental fatigue. Despite the
absence of active conflict or the challenges of hard area
postings, the demanding nature of military life at peace
stations can significantly impact the overall well-being of
personnel.
Para 70. Undisputably, even when not on the front lines or in
hard areas, soldiers are aware that the threat is never far
away. This environment, where danger is a constant reality for
their peers and could become their own at any moment,
creates a persistent state of mental and emotional strain that
28
2025 DHC 5082- DB.
Page 64 of 93
cannot be overlooked. Thus, military service, whether in peace
locations or operational zones, inherently carries stress that
may predispose Force personnel to medical conditions such
as hypertension.
…
Para 79. Considering all the factors together, it is evident that
the mere fact that the onset of the disease occurred during a
peace area posting is not sufficient to negate the cumulative
stress of military service, which can contribute to the
development of diseases such as Primary Hypertension, IHD
etc. The RMB’s opinion that the onset took place in a peace
station and therefore the disease is not attributable to or
aggravated by military service cannot be sustained.”
17.3 The clearest articulation of the differences between the Entitlement
Rules of 1982 and 2008 came in Union of India v. Bhaskaran N.
29
The
Kerala High Court in Bhaskaran held that the Entitlement Rules 2008
altered the earlier position by recognising that dormant, hereditary and
congenital diseases may not be detected at recruitment. Bhaskaran also
observed that the burden of proof under the Entitlement Rules 2008
continues to lie on the establishment as long as the petition seeking
disability pension was filed within 15 years of retirement. The Tribunal
there had failed to consider these changes and the Medical Board’s
opinion, so the High Court remanded the matter for fresh consideration. It
is significant to note that the Court ultimately, after analysing a myriad of
previous decisions, arrived at the following conclusions -
“Para 50. On a detailed analysis of the factual aspects,
approach adopted by the Supreme Court in the cases referred
to above and principles laid down, we are of the view that the
following conclusions can be arrived at:
29
2024 SCC OnLine Ker 7023.
Page 65 of 93
(i) As a basic premise, the AFT shall give due deference to the
opinion of the Medical Board, an expert body, and will not
lightly interfere with or substitute the views of the Medical
Board experts.
(ii) However, in justifiable circumstances, the Tribunal can set
aside the department’s decision founded on medical opinion
when the opinion is arrived at without considering germane
factors or omitting the relevant factors. Also when the reasons
for the conclusions are not discernible, interference may be
permissible. The Tribunal will have to keep in mind all
parameters of law in the matter of dealing with expert opinion
and merely because, a review of the finding of the Medical
Board is permissible, the Tribunal shall not interfere or
substitute the views.
(iii) A party challenging the decision of the Department taken
on the basis of the opinion of the Medical Board, will have to
demonstrate a strong prima facie case before the Tribunal that
such decision falls within the parameters for interference by
the Tribunal and it will not be advisable for the Tribunal to
straight away shift the burden on the Department merely on
the ground that the decision is challenged.
(iv) If the Tribunal comes to a conclusion that the views of the
Medical Board based on which the order is passed by the
department cannot be sustained, the Tribunal would direct the
department to reconstitute/constitute a review Medical Board
and obtain fresh opinion instead of substituting the opinion of
the experts with own opinion arrived at on the basis of
materials-on -record, unless exceptional circumstances so
warrants.
(v) However, in cases where the assessment by the Board
called in question after a long lapse of time and a fresh
assessment will be of no assistance to resolve the dispute in
the nature of the disability claimed at a distant point of time
such review may not be directed. In such cases tribunal/court
may take appropriate decision with reference to the materials
placed on record as well as the facts of the cases.”
IV. Party Submissions
A. Arguments advanced by Ld. Attorney General
18. The learned Attorney General of India appearing for the Union of
India made the following arguments -
Page 66 of 93
18.1 Entitlement to the disability element is contingent upon the
satisfaction of two distinct requirements: first , a finding that the disability
is attributable to or aggravated by military service (A/A); and second, an
accepted degree of disability of 20% or more. The satisfaction of the
quantitative threshold cannot, by itself, establish the requisite causal
nexus with service.
18.2 Mere manifestation of a disease during military service does not, by
itself, establish that the disease was attributable to or aggravated by such
service. The Entitlement Rules 2008 require a disease-specific and
individualised assessment having regard to the nature of the disease, the
conditions of service, the individual’s clinical and service history, and the
existence of a causal connection between the two.
18.3 Dharamvir Singh, having been decided in the context of the
Entitlement Rules 1982 and on its particular factual foundation, cannot be
mechanically applied to cases governed by the Entitlement Rules 2008.
In particular, the decision cannot be understood as creating an irrebuttable
or automatic presumption that every disability first manifested during
service is attributable to military service.
18.4 The opinion of a duly constituted Medical Board, being an expert
determination on questions of medical causation, is entitled to due weight
and ought not to be substituted by a court merely because another view
Page 67 of 93
is possible. Judicial interference is warranted only where a clear defect is
demonstrated, such as absence of reasons, failure to consider germane
material, or other manifest error; ordinarily, any such defect should result
in reconsideration by the appropriate medical authority rather than
substitution of the court’s own medical conclusion.
18.5 Diseases of constitutional, metabolic or degenerative origin,
including hypertension, diabetes mellitus and ischaemic heart disease,
require consideration in accordance with the disease- specific criteria
under the applicable Rules and medical guidelines, and cannot be
presumed to be service-related merely by reason of their manifestation
during service. It is further submitted that belated challenges to NANA
determinations ought to be approached with caution where the passage
of time has impaired the availability of contemporaneous medical or
service material necessary to establish the requisite causal nexus.
B. Arguments advanced by Respondents
19. We have heard the following learned counsels appearing on behalf
of the Respondents’ ex-servicemen - Mr. Sudhanshu Pandey, Mr. M.V.
Mukunda, Brig. Shrivastava, Mr. U.S. Maurya, Col. Naresh Ghai, Mr.
Siddharth Agarwal, Mr. Girish Kumar, Mr. Ajit Kakkar, Mr. Praveen Kumar,
Mr. Aditya Puar, Col. I.S. Singh, Mr. Baldev Singh, Mr. Maheravesh Rein,
Page 68 of 93
Mr. Vivekbhai Patel and Ms. Kanti. Their cumulative submissions are
summarized as follows -
19.1 The statutory framework of the Armed Forces Tribunal Act, 2007
empowers the Tribunal to adjudicate disputed questions of fact akin to a
civil court. This argument was pressed to refute the Union’s contention
that AFT cannot sit in appeal over RMB’s scientific and technical findings.
19.2 Entitlement rules have always been fundamentally aligned with the
harsh realities of military service, encompassing extreme climatic
conditions, counter-insurgency operations, prolonged family separations,
and rigorous peace-time duties such as aid to civil authorities. The core
philosophy, evolving from the 1940 Regulations through the Entitlement
Rules 1982, remained heavily loaded in favour of the soldiers, establishing
a settled legal position that the sanction of disability pension is the rule
and its denial the exception.
19.3 The Entitlement Rules 2008 introduced merely cosmetic changes in
form rather than any substantive abrogation of the soldiers’ rights. Relying
on Col. Balbir Singh which concluded that the Entitlement Rules 2008 did
not alter the underlying philosophy of the earlier regime, it was urged that
permitting the Union to reopen settled cases based on a purported shift in
the Entitlement Rules 2008 would result in a gross miscarriage of justice.
Page 69 of 93
19.4 Reliance was placed on a tabular comparison between the erstwhile
Entitlement Rules 1982 and the Entitlement Rules 2008 to demonstrate
that there is no material difference in their meaning or interpretation. It was
specifically pointed out that the “onus of proof” clause remains entirely
intact, i.e., just as Rule 9 of the Entitlement Rules 1982 insulated the
claimant from proving the conditions of entitlement, Rule 7 of the
Entitlement Rules 2008 similarly mandates that, ordinarily, the claimant
shall not be called upon to prove entitlement. It was submitted that in
instances where the actual cause of a disease is unknown, both Rule
10(b)(iii) of the Entitlement Rules 2008 and its predecessor Rule 20(a)
identically provide that if the presumption of entitlement is not rebutted by
the authorities, attributability should be conceded (deemed) on the basis
of the clinical picture and current scientific application. Since, the
Entitlement Rules are substantially similar, Dharamvir Singh, Rajbir,
Angad Singh Titaria continue to hold the field.
19.5 Rule 11 of the Entitlement Rules 2008 much like Rule 20 of the
Entitlement Rules 1982 concedes aggravation if the onset or subsequent
course of a disability is hastened or worsened by specific conditions of
military service. Crucially, this Court’s attention was drawn to Regulation
423(a) of the RMSAF, emphasizing that the 1980 and 2010 versions
explicitly direct that benefit of reasonable doubt must be given to the
Page 70 of 93
individual, and both state that it is immaterial whether the cause giving
rise to the disability occurred in a field service area or under normal peace
conditions, provided a causal connection with service conditions exists.
19.6 Consequently, it was asserted that the binding law laid down by this
Court in Dharamvir Singh v. Union of India still holds the correct position
of law and squarely covers the present cases, and that the High Courts
and Tribunals below committed no error in its application.
19.7 A Committee of Experts in the Raksha Mantri directed the
withdrawal of all the pending NANA cases in 2015. This recommendation,
having been accepted by the Raksha Mantri, needs to be acted upon.
19.8 Alternatively, the Entitlement Rules 2008, are invalid and have no
force of law for having not been duly notified by the relevant department
under the Allocation of Business Rules, 1961.
19.9 Most of the appeals filed are filed belatedly with significant delay,
which is yet to be condoned by this Court.
V. Analysis
A. What is the true purport of the Entitlement Rules 2008?
20. Based on the various contentions put forth by the parties, the
principal question that arises for our determination is whether the
Entitlement Rules 2008, could be treated as having binding legal force in
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the absence of material demonstrating their valid promulgation. We are
constrained to observe that this question appears to have eluded scrutiny
by this Court on more than one occasion. It is relevant to note that the
Entitlement Rules 2008 trace their origin to Pension Regulations and as
regards the said Pension Regulations itself, this Court in Dharamvir
observed the following –
“14. …We also called for the Pension Regulations for the
Army, 1961 from the Library which contains Appendix II
“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 (Part I)
published by the Ministry of Defence, Government of India,
New Delhi. The respondents in their counter-affidavit have not
made clear as to when the Government of India, Ministry of
Defence Letter No. 1(1)/81/D(Pen-C) dated 20-6-1996 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 counter-
affidavit they have not mentioned that the Rules extracted in
their counter -affidavit is true copy of its original.”
20.1 Apart from the above, in Union of India & Ors. v. Ex Swr Sanjay
Kumar
30
, when the Armed Forces Tribunal, which had to grapple with a
similar situation, raised a question on the existence the 2008 Pension Regulations, the Union was similarly unable to answer. Since the present case is arising in a similar context, it is necessary to extract the relevant
paragraphs –
“8. By our order dated 04.12.2014, we directed Union of India
to provide us a correct and authentic copy of the Pension
Regulation for Army, 1961 as well as Gazette copy of the said
30
RA 36/2014 with MA 701/2014 in OA 239/2013 dated 22.12.2015 at Armed Forces Tribunal, Principal
Bench at New Delhi.
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Pension Regulations. We directed the Union of India to give
the details of the amendments made in the Pension Regulation
from time to time. We also directed respondents to state,
whether Pension Regulation for Army, 2008 have come into
force? If the Pension Regulation of 2008 have come into force
then said Regulation is effective from which date? On
29.01.2015, it was submitted by the learned counsel for the
Union of India, that in Pension Regulations, 1961, there are
about 167 amendments and, therefore, for filing a correct and
authentic copy of the Pension Regulation time may be granted
to the respondents. On 29.01.2015 we noticed that in the
affidavit submitted by the respondents, it has been stated that
the Regulations of 1961 are not statutory Regulations framed
under the Army Act, 1950 and the said Regulations are issued
with the executive powers vested with the Government of India
obviously, under Article 73 of the Constitution of India…The
matter was taken up lastly on 16.07.2015 and on that day,
learned counsel for UOI submitted copy of the Pension
Regulations for the Army, 2008 and it was stated that both the
Pension Regulations were framed by following the procedure
as laid down for passing executive order (in exercise of power
conferred by Article 73 of the Constitution of India)…
Para 11. We have already given notice to the respondents to
show that, whether the Pension Regulation for the Army, 1961
and Pension Regulations for Army, 2008 are the “‘Regulations”
as defined in the clause (xxi) of Section 3 of the Army Act, 1950
and heard learned counsel for the parties on this issue.
Therefore, we deem it proper to observe on this issue as it is
important issue arising in this review application though co-
laterally. Looking to the importance of the issue, we are
touching this subject in detail.
Para 13. …In the case in hand the Government has not named
the above Regulations as “Pension Order” or “Government
order’ or in any other manner so as to indicate that the Pension
Regulations for Army, 1961 and the Pension Regulations,
2008 are Government orders and not the Regulations. We do
not find any reason for naming these Regulations as Pension
‘Regulations” when Government’s own case is that these
‘Regulations’ are not the ‘Regulations”…
Para 14. Our above observation is relevant because of the
reason that it was very difficult for the Government to produce
one authentic copy of the above Pension Regulations much
less to a copy of the Pension Regulation with complete
amendments. It is admitted case that there is no authentic
publication of above Regulations by the Government. There is
no Gazette publication of these Regulations or Govt. orders.
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During the course of arguments, we have come across other
different provisions printed in the books published by the
private persons which also are different from the provisions
provided to us by the UOI...”
20.2 In the same case, when the Union approached this Court, they were
asked to produce an authentic copy of Pension Regulations.
31
Again, they
failed to do so. Consequently, the Union’s Appeal was dismissed.
32
i. Promulgation or I ssuance of Entitlement Rules 2008
21. As earlier noted, it is not disputed that the entitlement to disability
pension of Armed Forces personnel has been governed by a series of
statutory and regulatory instruments, including the Pension Regulations
and the Entitlement Rules 1982. The material placed before the Court
traces the evolution of this framework and indicates that the Entitlement
Rules 1982 formed part of the established regime governing the grant of
disability pension.
22. The difficulty arises in respect of the Entitlement Rules 2008. Upon
an examination, we find that the Union was unable to demonstrate fully
the source, the time and the method by which the said Entitlement Rules
2008 were brought into force by repealing or superseding the Entitlement
Rules 1982. Instead, the Ld. AG asserted that amendments had been
made from time to time and were not necessarily promulgated as separate
31
Orders dated 16.01.2020, 18.01.2022 in Civil Appeal Nos.10630- 10632/2017.
32
Order dated 30.03.2022 in Civil Appeal Nos.10630- 10632/2017.
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Rules. Ld. AG submits that the Entitlement Rules 2008 were issued vide
letter dated 18.01.2010 as a compilation of policy developed through
consultation with competent authorities.
ii. The Raksha Mantri Report’s Findings
23. In this context, we also need to refer to Ministry of Defence’s
“Review of Service and Pension Matters including Potential Disputes,
Minimizing Litigation and Strengthening Institutional Mechanisms related
to redressal of grievances” Report, 2015 (“Raksha Mantri Report”). This
report is of seminal importance as it directly speaks about the legitimacy
of the Entitlement Rules 2008. It is particularly relevant to extract and
examine Para 2.4.8 of Chapter II of this Report because of its strong
observations on the legality of the Entitlement Rules 2008 -
“(Para 2.4.8- Suspect Legality of Pension Regulations,
2008 and Entitlement Rules, 2010) –
…
When we raised the question about the legality of the Pension
Regulations, it was intimated to us by representatives of the
DESW that as also informed to the top echelons of the DESW,
the new Pension Regulations, 2008 were merely a collection
of latest policies as issued from time to time and made no
substantive or material changes to Pension Regulations, 1961.
We were informed that it was just an exercise undertaken by officers of the Defence Accounts Department of collating all
policies in one compilation for the ease of reference and
operation. We have also been informed that no minutes have
been maintained about any discussions undertaken while
“compiling” these so called “Regulations”. We were candidly
however, informed that these do not have the sanction of the
DoPPW as required under the Rules of Business and even the
higher authorities did not minutely go through the same since
they were intimated that these “Regulations” were merely a
collection of the latest orders and not new rules per se. We
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were also informed that these were issued to the environment
after the file was ‘seen’ by the then Raksha Mantri. We are
however constrained to observe that the higher echelons of
the DESW or of the MoD or even the then Raksha Mantri have
been kept totally in the dark about the reality and illegality of
these ‘Regulations’ or the fact that many changes have been
incorporated in the same by a sleight of hand in the name of
‘compiling’ existing policies.
To take a very few examples- the language of Regulation 16
of the Pension Regulations 1961 clearly implies that (unlike in
the civil services) pension is not forfeited in the defence
services on voluntary resignation unless a person is called
upon to resign by the organisation or called upon to retire and
he refuses to do so. However, while ostensibly ‘compiling’ the
said Regulation as Pension Regulations 2008, it has been
cleverly and innocuously provided in Note 5 under Regulation
17 that pension shall be forfeited on resignation. The reason
of this deceivingly clever attempt is not far to seek. Based on
Regulation 16, the Supreme Court in Union of India Vs Lt Col
PS Bhargava 1997 AIR (SC) 565 had ruled that under the
Pension Regulations, there was no automatic forfeiture of
service for pension or gratuity unless the person was called
upon to resign or retire, this of course was different than the
view prevailing in the Accounts wing or even in the Services
HQ. To cleverly blunt-out the effect of the Supreme Court
decision and to override the law with their own interpretation,
the innocuous looking note has been added in the Pension
Regulations 2008, but alas, without any sanction of the Union
Cabinet, without due process, without approval of the DoPPW
and against law laid down by the Supreme Court.”
It is also useful to notice Para 2.2.1 of Chapter II of the 2015 Report, which
addresses the broader pattern of incorrect NANA determinations and
records as follows -
“The problem however is that the rigid interpretation and
application of said rules in a literal, unscientific and
mathematical manner and issuance of contradictory local
instructions are leading to denial of disability benefits by
incorrectly declaring disabilities "Neither Attributable, Nor
Aggravated by military service" (NANA) which are otherwise
authorized to be eligible for benefits under the rules. Apart
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from leading to denial of disability benefits, this also results in
denial of any form of pension and consequently a dignified life
if the disability of a person discharged with less than
pensionable service is declared NANA. To take an example
from the Entitlement Rules, 1982, Rules 5 and 14(b) provide
that in case of discharge from service in low medical category,
there is a codified presumption that the deterioration in health
is due to service for disabilities that are contracted in service.
Rule 18 of the Entitlement Rules clearly states that ‘inherent
constitutional tendency’ is not a disease in itself as is routinely
declared by the Medical Boards. Rule 19 provides that if the
worsening of a condition persists till the time of discharge…
then aggravation is to be accepted. Though Rule 20(a) points
out that in case nothing is known of the disease and if
presumption of entitlement is not rebutted, then attributability
should be conceded, still disabilities are routinely declared as
NANA with reasons such as ‘idiopathic’ or ‘cause unknown’.
Rule 423 of the Regulations for Medical Services in the Armed
Forces (RMSAF) ordains that service in peace or field has no
linkage whatsoever with attributability of disabilities to military
service but still disabilities are regularly treated NANA on the
pretext that the disability had arisen in a ‘peace area’.”
24. Upon this examination, 2015 Report explicitly noted that the 2008
Pension Regulations and the Entitlement Rules 2008 have no sanctity of
law and that they are not validly issued documents on the ground that they
unlawfully introduced substantive, regressive changes to retirees’ pension
rights without requisite Cabinet/Department of Pension and Pensioners’
Welfare (“DoPPW”) approval, stakeholder consultation, or proper records,
and created an unjustified disparity between the Army and the other two
Services. The conclusions of the Report with regard to the legality are -
“The Committee hence regretfully observes that the so called
‘Pension Regulations 2008’ and ‘Entitlement Rules, 2010’
have no sanctity of law and are not validly issued documents.
We say so on the strength of the following grounds:
● That these documents are not just a ‘collection’ of latest
instructions etc issued from time to time after
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implementation of successive pay commission reports
as has been projected very innocently. Many
substantive provisions of the actual regulations
stand amended by way of a sleight of hand in these
so called ‘Regulations’. For example, there is no pay
commission report and acceptance thereof which
directs a change in the pensionary benefits on
resignation in the defence services or the definition of
‘invalidation’, besides multiple other changes illegally
carried out which we are not noting so as not to burden
the dockets of our report.
● That no approval of the Union Cabinet has been
obtained on these changes introduced cleverly in the
text of these ‘Regulations’ and also no approval from the DoPPW which alone is authorized as per the Allocation
of Business Rules, 1961, to approve pensionary
provisions of civil, railway and defence personnel.
● That there has been no due democratic process or even
any discussion with stakeholders before introducing
these ‘Regulations’ or ‘Rules’. Needless to state rules
and pensionary policies cannot be imposed as one-way
traffic by clandestinely introducing amendments by
changing the language of substantive provisions in the
garb of making a ‘compilation’.
● That no recorded minutes or notes of any alterations or
amendments are available and the work of reframing
and rewording had been handed over to officials of the
Defence Accounts Department. Hence ultimately, the
language chosen and imposed by a few officers has
been circulated in the form of ‘Regulations’ and that too
by altering the precious rights of retirees. Even the then
Raksha Mantri was not informed about the true picture
and the file was apparently simply shown to him without
informing him about the fact that substantive provisions
and rights of retirees had been altered. Thereafter, the
‘Regulations’ were simply circulated by way of a letter
stating ‘RM has seen.
● Pension Regulations of the three services are pari
materia to a great extent. While these Regulations of
2008 have been issued only for the Army, we are told
that the other two services continue with the old (actual)
Regulations. The question arises whether such a
situation be allowed to prevail wherein different services
are governed by varied provisions and that the Army is
saddled with regressive changes which are not applied
to the other two services.
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The Committee hence strongly observes that the so-
called ‘Pension Regulations, 2008’ or the ‘Entitlement
Rules, 2010’ have no sanctity of law as far as alteration of
entitlements is concerned. The same can at best be
adopted to regulate procedural aspects and if there is a
conflict between the same and the actual Pension
Regulations 1961 or actual Entitlement Rules 1982
thereby affecting the rights of pensioners negatively, then
the Regulations of 1961 and Rules of 1982 shall prevail to
determine the entitlement. The Committee also
recommends that any such changes in the future may be
perused by senior officers of the Ministry with the minutest eye
so that no amendment of beneficial or welfare oriented
provisions is carried out by a sleight of hand. In fact, any
change that may be recommended should be first put before
the Standing Committee for Welfare of Ex-Servicemen as
discussed in preceding parts of this Report. We would have
recommended an enquiry into the officers involved in this
crude attempt to change the entitlements of pensioners and
disabled soldiers but refrain ourselves from doing so since
many officers involved in this episode would have retired by
now.”
(emphasis supplied)
25. In order to address our concerns about the legitimacy of the
Entitlement Rules 2008, the Ld. AG brought to our notice and filed
photocopies of what is referred to as Department of Ex-Servicemen
Welfare’s (“DESW”) ‘Implementation Status on the Recommendations of
the Raksha Mantri’s Committee of Experts Concerning DESW’. There is
a tabulated column comprising of the recommendations of the Raksha
Mantri Committee on the one hand and on the other side what is called
the status as regards the recommendations of the Raksha Mantri
Committee. The DESW’s proposal indicates as follows -
“Partially Accepted :
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As per Para 3 of Transaction of Business Rules,1961, as
amended from time to time, all business allotted to a
Department under the Gol (Allocation of Business, Rules
1961, shall be disposed of by, or under the general or special
directions of, the Minister-in -charge. As per Allocation of
Business, Rules 1961, as amended from time to time,
administration of the Entitlement Rules to Casuality
Pensionary Awards to the Armed Forces Personnel has been
allotted to DESW.
Many policy changes have taken place after issuance of
Pension Regulations for the Army,1961 and Entitlement Rules
for Casualty Pensionary Awards, 1982 by various policy orders
issued from time to time with the approval of Competent
Authorities. The Pension Regulations have been amended
from time to time through policy letters issued with the
approval of Competent Authority.
The Pension Regulations have been amended from time to
time through policy letters issued with the approval of
Competent Authority. Further, policy letters are issued in
implementation of recommendations of Pay Commission,
Hon’ble AFT/Supreme Court’s Judgement/orders, Cabinet
Secretary Committee recommendations and proposals
received from Services and Ex-Servicemen associations after
due consultation with CGDA, DoP&PW, Service Hgrs
Department of Expenditure through MoD(Finance/Pension)
and with the approval of competent authority.
Further, several pension policy letters have been issued in
pursuance of the policy letters issued by DoP&PW for the
Civilian Employees. On several occasions, DoP&PW has
stated that “Defence personnel are governed by different sets
of rules framed under Army Act, Naval Act and Air Force Act
and the CCS(Pension) Rules and CCS (EOP) Rules are not
applicable to them. In view of this, MoD being the
Administrative Ministry may take an administrative decision
taking into consideration the rules and regulations applicable
in case of Defence personnel.”
Entitlement Rules for the Casualty Pensionary Awards 1982
have also been superseded by Entitlement Rules for the
Casualty Pensionary Awards 2008 (issued vide MoD letter
dated18.01.2010). It has been mentioned in the MOD letter
dated 18.01.2010 that the Entitlement Rules 2008 shall apply
in cases of disablement or death of service personnel who
became non- effective on or after 01.01.2008. All Govt. orders
issued upto 6th CPC were compiled into PRA-2008. The draft
regulation for Army, Navy and Air Force after incorporating all
the Govt. orders up to 7% CPC is under process in
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consultation with CGDA,PCDA(P), three Services including
Ministry of Law & Justice.
Meeting of Standing Committee for Welfare of Ex-servicemen
Is held under the Chairmanship of Hon’ble RRM from time to
time. Representatives from Ex-Servicemen associations,
DGR, KSB, CGDA/PCDA, ECHS and other stakeholders are
the participants. The issues related to pensionary matters of
Defence forces personnel are deliberated therein.
It may be seen from above discussions that Pension
Regulations for the Army, 2008 and Entitlement Rules-2008
(issued in 2010) are valid documents. In view of this, the
observation of Expert Committee that Pension Regulation
2008/Entitlement Rule have no sanctity of law is not correct.
Placing of pension policy order before Standing Committee for
welfare of Ex-Servicemen prior to issuance is neither
mandatory nor practical. As and when required, comments of
Services and other stakeholders including DoP&PW are
obtained before issue of Govt. order.
The observations of the Committee that any such changes in
the future may be perused by senior officers of the Ministry are
already in vogue in this Department as approval of competent
authorities i.e. approval of Secretary (ESW), Hon’ble RM and
concurrence of Department of Expenditure is obtained in case
of policy change. The approval of the Cabinet is also obtained
whenever requires. Further, the Defence pension issues are
also discussed in the meeting of Standing Committee for
Welfare of Ex- Servicemen from time to time.”
26. On this point, it is necessary to examine the relevant provisions of
the allocation of business rules to determine the competent authority to
formulate and amend pensionary policy. Under the Second Schedule to
the Allocation of Business Rules, 1961, the Department of Pension and
Pensioners’ Welfare is allocated the “formulation of policy and co-
ordination of matters relating to retirement benefits to Central Government
employees (Civil, Defence and Railway Pensioners)”. The Department of
Ex-Servicemen Welfare, by contrast, is allocated only the “administration
of— (a) the Pension Regulations for the Army, 1961 (Parts I and II); (b)
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the Pension Regulations for the Air Force, 1961 (Parts I and II); (c) the
Navy (Pension) Regulations, 1964; and (d) the Entitlement Rules to
Casualty Pensionary Awards to the Armed Forces Personnel, 1982”.
27. The learned counsels for the respondents have vehemently argued
that the DESW’s authority is confined to administering four regulations,
and has no power to formulate, amend, or issue a fresh instrument in their
place. Therefore, they would contend, the Entitlement Rules 2008 fell
outside its mandate. It is further argued that change in policy would only
vest within DoPPW’s remit, which the 2015 Report itself records was
never obtained. Subsequent observations made by DESW do not answer
the questions raised.
28. It appears that the Entitlement Rules 2008 is a collation of the
modified executive instructions issued subsequent to the Entitlement
Rules 1982. We are at a loss to understand as to why the position of a
rule that governs pensionary benefits be shrouded in mystery.
Transparency, clarity and certainty are of enormous importance for any
legitimate action. There should not be dissatisfaction and lack of
confidence in the minds of ex-servicemen about the manner in which their
claims and entitlement are being dealt with. It is necessary, rather
compelling, that the applicable rules/regulations are formulated and
notified authoritatively by the competent authority as early as possible.
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B. Whether the Entitlement Rules 2008 make a significant
departure from the Entitlement Rules 1982?
29. Leaving apart the question of legal effect of Entitlement Rules 2008,
the further question that arises for our consideration is whether the
Entitlement Rules 1982 have actually been varied or modified by the
Entitlement Rules 2008. The following is a comparative chart comprising
of each subject such as, presumption at entry, onus of proof, when cause
of disability is unknown, aggravation and benefit of doubt. As against
each of these subjects, we have indicated the position of the Rule as it
existed under the Entitlement Rules 1982 and compared with the
Entitlement Rules 2008.
Subject Entitlement Rules 1982 Entitlement Rules 2008
Presumption
at Entry
Rule 5. The approach to the
question of entitlement to
casualty pensionary awards and
evaluation of disabilities shall be
based on the following
presumptions: (a) 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.
Rule 5. Medical Test at entry
stage: The medical test at the
time of entry is not exhaustive,
but its scope is limited to broad physical examination. Therefore, it may not detect some dormant
disease. Besides, certain
hereditary constitutional and
congenital diseases may
manifest later in life, irrespective
of service conditions. The mere
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(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.
fact that a disease has
manifested during military
service does not per se establish attributability to or aggravation by military service.
Causal
Connection
Rule 8 -
Attributability/aggravation shall
be conceded if casual
connection between death/
disablement and military service
is certified by appropriate
medical authority.
Rule 6 - Causal Connection- For
award of disability
pension/special family pension,
a causal connection between
disability or death and military
service has to be established by appropriate authorities.
Onus of
Proof
Rule 9 - Onus of Proof
The Claimant shall not be called
upon to prove the condition of
entitlements. He/she will receive
the benefit of any reasonable
doubt. This benefit will be given
more liberally to claimants in
field/afloat service cases.
Rule 7 - Onus of Proof
Ordinarily, Claimant will not be
called upon to prove the
condition of entitlement.
However, where the claim is
preferred after 15 years of
discharge/retirement/invalidment
/release by which time the
service documents of claimant
are destroyed after prescribed
retention period, the onus to
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prove entitlement would lie on
the claimant.
Aggravation Rule 20 - If it is established that
the disability was not caused by
service, attributability shall not be
conceded. However,
aggravation by service is to be
accepted unless any worsening
in his condition was not due to
his service or worsening did not persist on the date of discharge/
claim.
Rule 11 - A disability shall be
conceded aggravated by service
if its onset is hastened or the
subsequent course is worsened
by specific conditions of military service, such as posted in places
of extreme climatic conditions,
environmental factors related to
service conditions e.g., Fields,
Operations, High Altitudes etc.
When Cause
of disability
is unknown
Rule 20(a) - If nothing at all is
known about the cause of the
disease, and presumption of the
entitlement in favour of the
claimant is not rebutted,
attributability should be
conceded.
Rule 10(b)(iii) - If nothing at all is
known about the cause of
disease and the presumption of
the entitlement in favour of the
claimant is not rebutted,
attributability should be
conceded on the basis of the
clinical picture and current
scientific medical application.
i. No significant change in core scheme
30. Having conducted a comparative analysis of the modifications in the
Entitlement Rules 2008, our opinion against each subject is as follows –
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30.1 Presumption at Entry of Service: Rule 5 of the Entitlement Rules
1982 clearly creates a presumption that a member of service is in sound
physical and mental health at the time of entrance, and as such, any
disability at the time of discharge would be attributable to military service.
Rule 5 of the Entitlement Rules 2008 withdraws this presumption by
adding a causal connection requirement. It notes ‘mere fact that a disease
has manifested during military service does not per se establish
attributability to or aggravation by military service’.
30.2 Causal Connection: Rule 8 of the Entitlement Rules 1982 and Rule
6 of the Entitlement Rules 2008 even though the framing is different, in
substance, are identical. Rule 8 requires an appropriate medical authority
to certify the causal connection, while Rule 6 of the Entitlement Rules
2008 requires an appropriate authority to establish a causal connection.
30.3 Onus of Proof: Rule 9 of the Entitlement Rules 1982 holds that the
ex-servicemen will receive a reasonable benefit of doubt and that they
shall not be called upon to prove their disability is attributable to service.
Rule 7 of the Entitlement Rules 2008 broadly carries forward this rule
position and continues to place the onus of proof on the employer.
30.4 However, this rule carves out a narrow exception to this rule, being
claims made after 15 years of discharge/retirement/invalidment/release.
While this exception is significant for different reasons, which shall be
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discussed, suffice it to say that Rule 7 of Entitlement Rules 2008 broadly
carries forward Rule 9 of Entitlement Rules 1982.
30.5 Aggravation: Rule 20 of the Entitlement Rules 1982 operates for
servicemen who have disabilities which may not be attributable to service,
but may have been aggravated by service. It assumes aggravation unless
it is specifically proved that aggravation was not caused due to service.
Rule 11 of the Entitlement Rules 2008 not only reproduces an identical
scheme from the earlier rule, but also further clarifies the Rule by noting
that “disability shall be conceded aggravated by service if its onset is
hastened or the subsequent course is worsened by specific conditions”.
30.6 When cause of disability is unknown: Rule 20(a) of the
Entitlement Rules 1982 concedes attributability to military service in cases
where the cause of disease is unknown. Rule 10(b)(iii) of the Entitlement
Rules 2008 parallels this logic and only clarifies that attributability is to be
conceded on basis of clinical picture and current scientific medical
application.
30.7 Conclusion: The mere addition of a causal requirement and a
removal of the presumption that when a member joins service healthy,
and, if, he leaves with a disability, it ought to be attributable to the military
service, does not, by itself, change the core scheme of the Entitlement
Rules 2008 because the other beneficial provisions broadly remain
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untouched. The onus to prove that the member’s disability is not
attributable to service still lies on the employer. The relevant rules
regarding attributability and aggravation continue to hold that if cause of
disability is unknown, and presumption of attributability is not rebutted,
then the disability is attributable to service. Rule 7 of the Entitlement Rules
2008 read with Rule 423 of the RMSAF, 2010 continue to generate a
reasonable benefit of doubt in favour of the service member.
31. The enquiry that we have conducted to see whether there is any
variation in the Entitlement Rules 2008 has actually been done, even more
meticulously, by the High Courts in cases of Bhaskaran, Anil Madso and
Col. Balbir Singh. For instance, the relevant paragraphs from Bhaskaran
are reproduced –
“Para 45. By employing the word “ordinarily”, the rule-making
authority has obviously diluted the rigor of the burden which
was on the establishment under the Rules of 1982. The
intention is very clear that in all cases and under all
circumstances it shall no longer be the burden of the
establishment to show that the employee is not entitled for the
benefit. In appropriate cases the employee shall discharge the
onus of proof to seek the benefit. The learned Senior Central
Government Counsel placed emphasis on this Rule and
argued that the same has made a drastic change in the matter
of onus of proof. According to the learned counsel, claimants
cannot no longer raise a demand and leave it to the
establishment to rebut. We shall now examine this contention.
We note that the second part of Rule 7 opens with the
expression “however” and the said sentence operates like a
proviso carving out exception to the general rule found in the
previous sentence. Reason for providing the exception is also
clear from the latter sentence that; when claim is preferred
after 15 years, by that time, the service documents of the
claimant would be destroyed. Hence, ostensibly, the rule
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making authority altered the tenor of the rule regarding onus
of proof in view of the fact that when belated claims are raised
the establishment will not be in possession of the relevant
records and in such situations the employee may obtain undue
advantages. Unscrupulous persons waiting for destruction of
records and raising claims thereafter is also a conceivable
situation. Nonetheless, the intention of the rule makers
regarding claims made within 15 years discernible from the
language employed, is that the onus will continue to be
primarily on the Department. We therefore hold with respect to
Rule 7 of the Entitlement Rules of 2008 that the said provision
does not exonerate the establishment totally from the burden
of proof and in all cases in which the claim is raised within 15
years from the date of
discharge/retirement/invalidment/release, the onus of proof
will be primarily on the Department. Only in cases wherein
claims are raised after 15 years, the burden will be entirely on
the claimant. While holding thus, we have kept in mind the
observation of the Supreme Court in Union of India v. Vijay
Kumar that the Entitlement Rules are beneficial in nature and
ought to be liberally construed.
46. In continuance of the discussion on the onus of proof , we
note the submission of the learned SCGSC that the onus on
the Department is discharged by referring the employee to the
Medical Board and if the opinion of the Board is in favour of
granting disability pension, the authorities normally accept the
opinion. He submitted that in case the opinion of the Board is
not in favour, then the burden of the Department shall be
treated as discharged and the person claiming the benefit shall
bear the onus. In other words the Department must be deemed
to have rebutted the presumptions under the Rules by
obtaining the medical opinion. We can accept the position
canvassed only with riders, keeping in mind the statutory
scheme and objectives of providing disability pension. The
burden of the Department can be considered as effectively
discharged and presumptions rebutted, in the case of a
negative opinion by the Board, only when such opinion is
sound and not flawed in any manner. We are also of the view
that the employee can discharge his initial burden by pointing
out the infirmities and illegalities in the procedure or
conclusions of the Board. Once a prima facie case is thus
made out by the applicant for scrutiny of the opinion of the
Medical Board, the Department shall be bound to vindicate the
same.
Para 47. Regarding attributability of injuries and diseases also,
the position under the Rules has undergone notable changes.
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Under Rule 13 of the Entitlement Rules of 1982, injuries
sustained when the employee is on duty shall be deemed to
have resulted from military service and diseases which led to
discharge or death of the individual will ordinarily be deemed
to have arisen in service if no note of it was made at the time
of entry to service. Nevertheless, under Rule 10 of the
Entitlement Rules of 2008 injuries sustained when the
individual is on duty shall be treated as attributable to military
service, provided a nexus between the injury and military
service is established. Likewise, in the matter of diseases also,
under the same rule two conditions are to be satisfied that the disease has arisen during the period of military service and
that the disease has been caused by the conditions of
employment in military service.
Para 48. In dealing with cases governed by the Entitlement
Rules of 2008, the Tribunals and courts should be mindful of
the significant changes noted in the previous paragraphs. The
principles enunciated by the Supreme Court in various cases
referred above on analysing the provisions of the Regulations
of 1961 and the Entitlement Rules of 1982 are to be
understood as derived from the analysis of the provisions of
those laws only. Mechanically adopting the principles laid
down on the basis of analysis of the provisions of the
Entitlement Rules of 1982 read with Regulations of 1961, to
decide cases governed by the Entitlement Rules of 2008,
would be therefore improper and incorrect.
Interference with the opinion of the Medical Board
Para 49. Under the provisions relating to granting of disability
pension the most important element is the opinion of the
Medical Board. Functioning of the Medical Board is guided by
the guidelines issued from time to time. Whether the disability
has causal connection to military service is a crucial aspect
which essentially depends upon the opinion of the Medical
Board. In most of the cases wherein disability pension is
refused by the authorities, opinion of the Medical Board is the
only decisive factor. We have already referred to various
judgments of the Supreme Court dealing with the opinions of
Medical Boards.”
31.1 The aforementioned High Court judgments in Bhaskaran, Anil
Madso and Col. Balbir Singh converge with our opinion that even though
Entitlement Rules 2008 removed the automatic presumption and
strengthened the requirement of causal nexus, they did not dismantle the
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claimant-protective structure of the Rules, particularly the continued
allocation of primary burden to the establishment and beneficial principles
governing attributability, aggravation and reasonable doubt. Bhaskaran
reaches the same conclusion that the onus of proof is similar, with a minor
caveat (reversal of onus in belated claims), and, that
attributability/aggravation to military service can be established through
causal connection, which, in our opinion, existed in Entitlement Rules
1982 as well. Anil Madso recognises that the Entitlement Rules 2008
removed the earlier presumption under Rule 5, but still holds that this did
not automatically shift the burden of establishing entitlement onto the
claimant, since Rule 7 continues to place the initial burden on the
establishment.
32. The present appeals, therefore, have no independent legs to stand
because several special leave petitions and civil appeals against such
orders have already been dismissed.
33
ii. Limited Qualification – Rule 7’s proviso
33. We are not prepared to go so far as to hold that the two sets of Rules
are identical in every particular, or that no difference whatsoever exists
between them. Rule 7 of the Entitlement Rules 2008 introduces a proviso,
absent in Rule 9 of the Entitlement Rules 1982, shifting the onus to the
33
For instance, SLP (No. 30497/2025) against Col. Balbir Singh has been dismissed.
Page 91 of 93
claimant where the claim is preferred more than fifteen years after
discharge, invalidment or release.
34. In our view the Entitlement Rules 2008, assuming they otherwise
have legal effect, substantially reproduce the 1982 scheme of causal
connection, onus, and attributability/aggravation subject only to the limited
qualification introduced by the proviso to Rule 7.
35. Rule 7 of the Entitlement Rules 2008 shifts the burden onto the ex-
servicemen if he approaches the medical board/court after a period of 15
years. If the medical board and the appeals had rejected the claim but the
AFT or the High Court have routinely allowed the application or the Writ
Petition by following the principle of presumption or the decision in
Dharamvir without a detailed examination of the evidence adduced by the
ex-servicemen in support of their case, then there is certainly a case for
revisiting those decisions. It is for the Union to identify such cases and
raise appropriate objections to demonstrate that the burden is discharged
or not.
VI. Conclusion
36. Raksha Mantri Report 2015 observed, “While the world has moved
much ahead… in India many disabled soldiers are still denied disability
benefits on hyper-technical reasons… It is important to realize that there
is inherent stress and strain in military service. In all democracies,
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disabilities arising in service or during authorized leave are considered as
attributable or aggravated by military service”.
37. Raksha Mantri Report recommended the immediate withdrawal of
appeals of this nature pending against disabled soldiers, a
recommendation that has not been faithfully implemented. Appeals such
as these are filed and continue to be filed, even after the Ministry of
Defence accepted the Committee’s recommendation for withdrawal of this
class of litigation
34
.
38. The sad part of this litigation is that, out of around 271 Civil Appeals
and Special Leave Petitions, most of them are barred by limitation. Many
similar appeals that were barred by limitation have already been
dismissed in the past; the present batch is only a small number that
survive. Moreover, it is significant to note that the number of appeals
rejected at the first appellate stage, after a dismissal by the RMB, far
exceeds those accepted. As per information obtained under the Right to
Information Act, 2005, of the 2,997 appeals before the First Appellate
Authority, almost 2,855 of the claims were rejected and only 142 appeals
are accepted. Before the Second Appellate Authority, out of 456 appeals,
439 were rejected and only 17 appeals are accepted.
39. Having considered the matter in detail, we are of the opinion that,
34
Ministry of Defence letter dt. 07.09.2018 (MoD ID No. 4(5)/D(CMU)/2018).
Page 93 of 93
i) No case for interference in the present Special Leave
Petitions/Civil Appeals is made out. They are accordingly dismissed
on the grounds of delay as well as on merits.
ii) We find considerable force in the submission made by the Ld.
AG that the opinion of the Medical Board deserves to be given due
weight and ought not to be substituted by a Court merely because
another view is possible. In pending matters, the Tribunal must
scrutinize in detail the opinion and reasons expressed by the
Medical Board before deciding upon the claims.
iii) If a claimant approaches the relevant forum after a period of
fifteen years, the principle in Rule 7 of the Entitlement Rules 2008
applies and the burden shifts. Onus in such a case will be on the
applicant to prove the conditions of entitlement.
40. With the clarification as indicated hereinabove, the present batch of
matters stands dismissed.
41. There shall be no order as to costs.
………………………………....J.
[PAMIDIGHANTAM SRI NARASIMHA]
………………………………....J.
[ALOK ARADHE]
NEW DELHI;
SEPTEMBER 15, 2026.
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