2025:MHC:944WP No. 26638 of 2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 07-03-2025

CORAM

THE HONOURABLE MR JUSTICE S. M. SUBRAMANIAM

AND

THE HONOURABLE MR.JUSTICE K.RAJASEKAR

WP No. 26638 of 2024

and

W.M.P.Nos.29155 & 29160 of 2024

1. Union Of India

Rep.by its Defence Secretary,

Govt Of India,

Ministry Of Defence-D,(Pension and

Grievances)

No.535 'A' Wing,

Sena Bhawan, New Delhi-110 011.

2.The Director,

PS-4,AG's BRANCH, ARMY HEAD

QUARTERS,DHQ PO,

NEW DELHI-110 011.

3.Officer Incharge

APS Records,

PIN-900 746,

C/o 56 APO

4.The Chief Postmaster

Anna Road Hpo,Chennai-600 002.

Petitioner(s)

1/23

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Vs

1. R.Kannan

(EX-JC-834045-N SUB)

s/o.Rengan,

No.1A1, 1st Floor,

Vasanth Apartments,

Chengannachetti Street,

Chindatripet,

Chennai - 600 002.

2.The Registrar,

Armed Forces Tribunal, Rudra Road,

St.Thomas Mount, Chennai-600 016.

Respondent(s)

PRAYER

Writ Petition filed under Article 226 of the Constitution of India, to call for the

records dated 25-11-2022 passed in O.A. 92/2018 on the file of the 2nd

respondent, thereby quashing the impugned order and render justice.

For Petitioner(s):Mr.V.Balasubramanian

Senior Panel Counsel

For Respondent(s):Mr.R. Malaichamy for R1

R2-Tribunal

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ORDER

(Order of the Court was made by S.M.Subramaniam J.)

Under assail is the order dated 25.11.2022 passed in O.A.No.92 of 2018

on the file of the Armed Forces Tribunal, Regional Bench, Chennai.

2. The Union of India represented by the Secretary, Ministry of Defence

is the writ petitioner before this Court.

3. The first respondent ex-service man instituted Original Application

before the Armed Forces Tribunal (hereinafter referred as AFT) challenging the

validity of the order dated 13.09.2017, wherein the competent authority of the

Ministry of Defence rejected the appeal on the ground that the ID is neither

attributable to nor aggravated by military service. The Tribunal allowed the

disability claim of the first respondent relying on the Judgment of the Hon’ble

Apex Court in Dharamvir Singh vs. Union of India and Others reported in

(2013) 7 SCC 316.

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4. The facts in nut shell not seriously disputed between the parties would

reveal that the first respondent was enrolled in Indian Army Postal Service on

07.11.1985 on deputation. He was placed in medical category S1H1A1P2E1

(Permanent) for disability 'Coronary Artery Disease (Anterior Wall Myocardial

Infraction)' and he was retained in service against sheltered appointment from

24.10.2014 to 23.10.2016. Thereafter, he was discharged on reaching the age

limit from Army to his parent department i.e, Department of Posts on

30.06.2016 for continuation of further remaining service till completion of age

limit under Central Civil Services (CCS) Rules, 1972.

5. The first respondent claimed disability element of pension. Release

Medical Board assessed the disability "Coronary Artery Disease (Anterior Wall

Myocardial Infarction) with normal LV function" @30% for life and net

assessment qualifying for disability element of disability pension @ Nil for life

and opined that the ID is neither attributable to nor aggravated by military

service.

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6. The Release Medical Board opined that IDs as neither attributable to

nor aggravated by military service. Therefore, the appellants have declined to

consider the claim of the first respondent for grant of disability pension. Thus,

the Original Application came to be instituted.

7. Mr.V.Balasubramanian, the learned Counsel for the petitioners would

submit that the Release Medical Board considered the nature of disability and

opined the ID as neither attributable to nor aggravated by military service.

However, the Tribunal granted disability pension relying on the Judgment of the

Hon’ble Apex Court in Dharamvir Singh's case cited supra, which would not

have any direct application with reference to the facts and rules applicable as far

as the petitioner is concerned.

8. As per the rule which came into force in the year 2008, the Medical

Board’s opinion became final, unless the employee could able to produce

incriminating evidence rebutting the medical board’s opinion. In the present

case, the release medical board’s opinion was not disputed. Therefore, the

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Tribunal has committed an error in granting disability pension.

9. In 2008 rules, the presumption factor was deleted and the Dharamvir

Singh’s case was decided based on the presumption factor and based on the old

rule of the year 1961. Therefore, the said Judgment ought not to have been

relied upon by the Arms Tribunal for granting the relief of disability pension in

favour of the first respondent. When the rule underwent change and new rule

came into force, the Judgment delivered based on the old rule need not be relied

upon. Thus, the present writ petition is to be considered.

10. Mr.R.Malaichamy, the learned counsel appearing on behalf of the first

respondent would strenuously oppose by stating that the legal principles settled

in Dharamvir Singh’s case is in force. Therefore, the Tribunal has rightly

approached the issues relying on the legal principles. The burden of proof is on

the side of the officials. Therefore, it is to be presumed that the disability

occurred due to the services rendered in hard and critical areas. When such a

presumption is available to an employee in Indian Army, the same need not be

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denied merely on technical grounds as the service personal in Indian Army are

deputed to critical places, high altitude places, for performing hard duties, and

considering these factors the element of disability pension has been introduced.

The life style of these personal in Indian Army are also taken into consideration

for grant of disability pension. On some occasions it may not be possible to find

out the reason for disabilities and that exactly is the reason that the presumptive

factors are adopted in favour of the employees and the said benefits need not be

denied. Thus, the Dharamvir Singh's case is holding the field and followed by

the Tribunal. Therefore, the present writ petition is to be rejected.

11. This Court considered the rival submissions made between the parties

to the lis on hand.

12. Pension Regulations for the Army 1961 Section III provides

Disability Pensionary Awards. Regulation 48 (a) reads as under:

“*Disability Pension When Admissible

48(a) Unless otherwise specifically provided a

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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 percent 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.”

13. Appendix II to Regulation 48(b) provides entitlement rules for

casualty Pensionary Awards. Clause 5 rules as under:

“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 but are discharged before the

completion of their engagement will be deemed to have been

invalidated out of service.

5.The approach to the question of entitlement to casualty

pensionary awards and evaluation of disabilities shall be based

on the following presumptions:

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PRIOR TO AND DURING SERVICE

(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.

........

8. Attributability / aggravation shall be conceded if causal

connection between death/disablement and military service is

certified by appropriate medical authority.

ONUS OF PROOF

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.”

14. Pertinently, new pension regulations for the Army came into effect

from 1

st

July 2008. Further, the new pension regulations have not been

adjudicated in Dharamvir Singh’s case. The applicable provision for disability

pension under the current Pension Regulation for the army are necessarily to be

considered by this Court.

15. Regulation 37 reads as under:

“DISABILITY ELEMENT IN ADDITION TO RETIRING

PENSION TO OFFICER RETIRED ON ATTAINING THE

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PRESCRIBED AGE OF RETIREMENT

37 (a) An Officer who retires on attaining the prescribed

age of retirement or on completion of tenure, if found suffering

on retirement, from a disability which is either attributable to or

aggravated by military service and so recorded by Release

Medical Board, may be granted in addition to the retiring

pension admissible, a disability element from the date of

retirement if the degree of disability is accepted at 20% or more.

(b) The disability element for 100% disability shall be at

the rate laid down in Regulation 94 (b) below. For disabilities

less than 100% but not less than 20%, the above rates shall be

proportionately reduced. Provisions contained in Regulation

94(c) shall not be applicable for computing disability element.”

16. Regulation 53 of the New Regulation reads as under:

DISABILITY ELEMENT FOR DISABILITY AT THE TIME

OF DISCHARGE / RETIREMENT

53 (a) An individual released/retired/discharged on

completion of term of engagement or on completion of service

limits or on attaining the prescribed age (irrespective of his

period of engagement), if found suffering from a disability

attributable to or aggravated by military service and so

recorded by Release Medical Board, may be granted disability

element in addition to service pension or service gratuity from

the date of retirement/discharge, if the accepted degree of

disability is assessed at 20 percent or more.

(b) The disability element for 100% disability shall be at

the rate laid down in Regulation 98(b) below. For disabilities

less than 100% but not less than 20%, the above rates shall be

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proportionately reduced. Provisions contained in Regulation

98(c) shall not be applicable for computing disability element.”

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.”

17. In Dharamvir Singh’s case, the fact reveals that the ex-service man,

was covered under the old pension regulations. Therefore, his case was

considered based on the old pension regulation of the year 1961. Subsequent to

Dharamvir Singh’s case, the legal principles are considered by the Hon’ble

Supreme Court of India, in the case of Ex CFN Narsingh Yadav vs. Union of

India and Others reported in (2019) 9 SCC 667 wherein following observations

are made:

“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

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the time by the member.

19. Therefore, each case has to be examined whether the

duties assigned to the individual may have led to stress and

strain leading to Psychosis and psychoneurosis. Relapsing

forms of mental disorders which have intervals of normality and

Epilepsy are undetectable diseases while carrying out physical

examination on enrolment, unless adequate history is given at

the time by the member. Even if he was suffering from any

mental disorder prior to enrolment, the same could not be

detected as there were intervals of normality. The appellant was

posted in peace station as a Vehicle Mechanic. Neither the

nature of job nor the place of posting was such which could

have caused stress and strain leading to disability as attributed

to or aggravated by military service.

20. In the present case, clause 14(d), as amended in the

year 1996 and reproduced above, would be applicable as

entitlement to disability pension shall not be considered unless it

is clearly established that the cause of such disease was

adversely affected due to factors related to conditions of military

service. Though, the provision of grant of disability pension is a

beneficial provision but, mental disorder at the time of

recruitment cannot normally be detected when a person behaves

normally. Since there is a possibility of non-detection of mental

disorder, therefore, it cannot be said that Schizophrenia is

presumed to be attributed to or aggravated by military service.

21. Though, the opinion of the Medical Board is subject to

judicial review but the Courts are not possessed of expertise to

dispute such report unless there is strong medical evidence on

record to dispute the opinion of the Medical Board which may

warrant the constitution of the Review Medical Board. The

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invaliding Medical Board has categorically held that the

appellant is not fit for further service and there is no material on

record to doubt the correctness of the Report of the invaliding

Medical Board.”

18. In the case of Union of India vs. Ex Sep R.Munusamy reported in

2022 Live Law (SC) 619 the Apex Court made the following observation:

“16.The Tribunal does not sit in appeal over the expert

opinion of a Medical Board holding that the disability suffered

by a soldier was not attributable to or aggravated by military

service. There was no reason for the Tribunal not to accept the

opinion of the Release Medical Board held on 30th January

1997 and no reasons have been disclosed. In the absence of any

finding of infirmity in the decision making process adopted by

the Release Medical Board, there could be no reason to direct

the constitution of a Resurvey Medical Board, and in any case,

not after two decades from the date of discharge.

.....

24. Even though, the Tribunal accepted that there might

be cases, where an ailment/disease could be wholly unrelated to

military service and the denial of disability pension could be

justified on that ground, the Tribunal overlooked the mandate of

Rule 14(c) of the Entitlement Rules. From the Report of the

Resurvey Medical Board, as extracted in the impugned judgment

and order, it does not appear that the Review Medical Board

gave any opinion as contemplated in Rule 14(b) or 14(c) of the

Entitlement Rules. There were no materials before the Tribunal,

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on the basis of which the Tribunal could have been satisfied

that, the conditions of service of the Respondent contributed to

his disability and/or ailment. The Review Medical Board only

assessed the extent of the disability of the Respondent and the

approximate duration of the disability, but not the cause thereof.

25. What exactly is the reason for a disability or ailment

may not be possible for anyone to establish. Many ailments may

not be detectable at the time of medical check-up, particularly

where symptoms occur at intervals. Reliance would necessarily

have to be placed on expert medical opinion based on an in

depth study of the cause and nature of an ailment/disability

including the symptoms thereof, the conditions of service to

which the soldier was exposed and the connection between the

cause/aggravation of the ailment/disability and the conditions

and/or requirements of service. The Tribunal patently erred in

law in proceeding on the basis of a misconceived notion that any

ailment or disability of a soldier, not noted at the time of

recruitment but detected or diagnosed at the time of his

discharge or earlier, would entitle the soldier to disability

pension on the presumption that the disability was attributable

to military service, whether or not the disability led to his

discharge, and the onus was on the employer to prove otherwise,

which the Appellants in this case had failed to do.

26. In this case, since the discharge was on administrative

grounds and not medical grounds, there was no occasion for the

Release Medical Board or for that matter, the Resurvey Medical

Board to give any opinion as to cause and nature of the ailment

of the Respondent of “Right Partial Seizure with Secondary

Generalisation 345” as diagnosed, whether such disability/

ailment could reasonably have gone undetected at the time of

appointment of the Respondent, in terms of Rule 14(b) of the

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Entitlement Rules. The Appellants did not get the opportunity to

show that the ailment was not caused or aggravated by military

service in terms of Rule 14(b) and 14(c) of the Entitlement Rules

referred to above. The claim of the Respondent for disability

pension should not have been entertained and that too, 20 years

after his discharge.

19. In the context of the above Judgments, the facts of each case and the

legal principles are to be considered. Let us now consider the principles laid

down in Dharamvir Singh’s case cited supra. The issue considered by the

Hon'ble Apex Court was, whether the disability which, each one of the

respondents suffered was attributable to or aggravated by military service. In

this context, the Hon’ble Supreme Court made an observation that the

deterioration of health is normally presumed due to military service unless

medical records available on record are otherwise. It is presumed that at the

time of appointment, the Army man was fit and appointed. Therefore,

deterioration of health is to be attached to the military service rendered and

therefore, the disability pension should be consequential.

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20. Pertinently, in Dharamvir Singh’s case, the Hon’ble Supreme Court

held that from Rule 14(b) Old Pension Regulation of the Entitlement Rules, it is

clear that if the medial opinion was to hold that the decease suffered by the

members of the armed forces would not have been detected prior to service, the

medical board must state the reasons for saying so. Admittedly, the disability

pension is a beneficial provision and to be interpreted liberally, so as to benefit

those who have been sent home with disability, even before they completed

their tenure in the armed forces. However, the eligibility criteria is to be fixed

based on the rules and the medical records. The disability pension, even as per

the Dharamvir Singh’s case cannot be automatic, but subject to assessment by

the Release Medical Board and the conditions stipulated in the rules. It is further

observed by the Hon’ble Apex Court that denial of disability pension can be

justified on the ground it must be affirmatively proved that the decease had

nothing to do with the service. However, the burden to establish such a

disconnect would lie heavily upon the employer or otherwise the rule raised the

presumption.

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21. Thus, the spirit of the Judgment is unambiguous. The Judgment says

that if the decease had nothing to do with the services, then, the employer has to

prove the factum. If the burden of proof is not discharged by the employer, then,

the presumption shall go in favour of the employee. A soldier cannot be asked to

prove that the decease was on account of military service or was aggravated by

the same.

22. The above narration of the principles on Dharamvir Singh’s case

would abundantly make it clear that the disability pension is not automatic, but

to be considered based on the rule as well as the medical report by the Release

Medical Board. Even the Arms Tribunal has to consider the facts with reference

to the principles laid down in Dharamvir Singh’s case. The presumptive factor

cannot be applied in a routine manner so as to grant disability pension to all the

cases. Each case is to be considered on case-to-case basis and the facts should

be ascertained, whether such disability is attributable to military service or

otherwise. The presumption would not give a conclusive right to get disability

pension. Presumption is the principle applicable in the event of department not

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discharging its duty to establish that the disability is not attributable to military

service.

23. At the outset, this Court is of the considered opinion that disability

pension is a welfare provision, which is to be extended to the applicable cases.

However, such disability pension cannot be granted automatically merely based

on certain presumptions and assumptions. Pension regulation contemplates

eligibility for disability element of pension and one of the condition is that the

disability is attributable to military service and the burden of proof is also

shifted to the employer to establish the medical report of the Release Medical

Board.

24. As observed by the Hon’ble Apex Court in subsequent Judgments,

High Court not being an expert body, cannot substitute its opinion especially in

medical reports. Even, in the event of submitting an incriminating documents

disputing the medical reports, the course left open to the Courts are to refer the

matter to the Review Medical Board, and the High Court cannot substitute its

opinion on the medical reports.

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25. The disability element of pension was rejected on the ground that the

discharge from service is neither attributable to nor aggravated by military

service. In this context, the medical board proceedings are placed before this

Court. The opinion of the medical board in the case of the first respondent is

extracted hereunder:

1. Cause Relationship of the Disability with Service conditions or otherwise

Disability Attributa

ble to

service

(Y/N)

Aggravated

by service

(Y/N)

Not

connected

with service

(Y/N)

Reason/cause/speci

fic conditions and

period in service

Coronary Artery

Disease (AWMI)

non obstructive

Lad disease Mild

LV Dysfunction

No No Yes Onset of disability

is in peace area. 4

days charter of

duties does not

reveal any

exceptional stress

and strain incident.

26. In the case of Union of India vs. Ravinder Kumar reported in (2015)

12 SCC 291 the Apex Court made the following observation:

“4. This Court recently decided an identical case in

Union of India v. Jujhar Singh and after reconsidering a large

number of earlier judgments including Ministry of Defence v.

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A.V.Damodaran, Baljit Singh and ESI Corporation v. Francis

De Costa, came to the conclusion that in view of Regulation

179, a discharged person can be granted disability pension only

if the disability is attributable to or aggravated by military

service and such a finding has been recorded by Service

Medical Authorities. In case the Medical Authorities record the

specific finding to the effect that disability was neither

attributable to nor aggravated by the military service, the court

should not ignore such a finding for the reason that Medical

Board is specialised authority composed of expert medical

doctors and it is a final authority to give opinion regarding

attributability and aggravation of the disability due to the

military service and the conditions of service resulting in the

disablement of the individual. A person claiming disability

pension must be able to show a reasonable nexus between the

act, omission or commission resulting in an injury/ailment to the

person and the normal expected standard of duties and way of

life expected from such person.”

27. Perusal of the medical record further reveals that the case of the

employee discharged are examined based on several other factors which all are

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found in the medical report. Even in Dharamvir Singh’s case itself the

procedures to be followed has been considered. Requisite information and

assessment by the revised medical board in the present case would be sufficient

that the case of the first respondent was considered on different angles,

medically.

28. Thus, this Court do not find any justification for grant of disability

pension to the first respondent. The Armed Forces Tribunal though relied on

Dharamvir Singh’s case cited supra not considered the application of legal

principles in the context of the facts. Thus, the said order cannot be sustained.

Accordingly the order impugned in O.A.No.92 of 2018, dated 25.11.2022 is set

aside. The writ petition stands allowed. There shall be no order as to costs.

Consequently, the connected miscellaneous petition stands closed.

(S.M.SUBRAMANIAM J.) (K.RAJASEKAR J.)

07-03-2025

veda

Index:Yes/No

Speaking/Non-speaking order

Internet:Yes

Neutral Citation:Yes/No

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To

1. Union Of India

Rep.by its Defence Secretary,

Govt Of India,

Ministry Of Defence-D,(Pension and

Grievances)

No.535 'A' Wing,

Sena Bhawan, New Delhi-110 011.

2.The Director,

PS-4,AG's BRANCH, ARMY HEAD

QUARTERS,DHQ PO,

NEW DELHI-110 011.

3.Officer Incharge,

APS Records,

PIN-900 746,

C/o 56 APO

4.The Chief Postmaster,

Anna Road Hpo,Chennai-600 002.

5.The Registrar,

Armed Forces Tribunal, Rudra Road,

St.Thomas Mount, Chennai-600 016.

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S.M.SUBRAMANIAM J.

AND

K.RAJASEKAR J.

veda

WP No. 26638 of 2024

07-03-2025

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