When disease would be deemed to have arisen in service?

The issue as to whether disability pension can be declined even
in the absence of the opinion of the Medical Board that such disease could
not be detected at the time of entry into the service has been decided by this
Court in C.W.P. No.7277 of 2013 titled as Ex. Naik Umed Singh v. Union of

India and others, decided on 14.05.2014. It has been held that in the absence
of the reasons recorded by the Invalidating or Review Medical Board that
the disease could not be detected at the time of entry into Government
Service, the claim for disability pension could not be declined. The relevant
extract from the judgment reads as under:-
“.....Therefore, in view of the judgment in Dharamvir
Singh’s case (supra), we have no hesitation to hold that if
no note is given of any disease at the time of acceptance
of an individual into service, the disease would be
deemed to have arisen in service. The Invalidation
Medical Board or Review Medical Board has to record a
categorical opinion that the disease, the reason of
invaliding out of service could not have been detected on
medical examination at the time of enrollment. In the
absence of any such finding of the Medical Board, the
disease would be deemed to have arisen in service.”

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.12579 of 2012
Date of decision: 26.5.2014
Hakam Singh

VERSUS
Union of India and others

CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON’BLE MR. JUSTICE FATEH DEEP SINGH



Challenge in the present writ petition is to an order dated
13.04.2012 passed by the Armed Forces Tribunal, Regional Bench
Chandigarh at Chandimandir, whereby claim of the petitioner for disability
pension was rejected.
The petitioner was found to be diagnosed with disability
“Hepato Intestinal Amoebiasis”. However, there is nothing on record that
the Medical Board has opined that such disease could not be diagnosed at
the time of the petitioner's entering into army service.
The issue as to whether disability pension can be declined even
in the absence of the opinion of the Medical Board that such disease could
not be detected at the time of entry into the service has been decided by this
Court in C.W.P. No.7277 of 2013 titled as Ex. Naik Umed Singh v. Union of

India and others, decided on 14.05.2014. It has been held that in the absence
of the reasons recorded by the Invalidating or Review Medical Board that
the disease could not be detected at the time of entry into Government
Service, the claim for disability pension could not be declined. The relevant
extract from the judgment reads as under:-
“.....Therefore, in view of the judgment in Dharamvir
Singh’s case (supra), we have no hesitation to hold that if
no note is given of any disease at the time of acceptance
of an individual into service, the disease would be
deemed to have arisen in service. The Invalidation
Medical Board or Review Medical Board has to record a
categorical opinion that the disease, the reason of
invaliding out of service could not have been detected on
medical examination at the time of enrollment. In the
absence of any such finding of the Medical Board, the
disease would be deemed to have arisen in service.”
Still further, the Government of India vide letter dated
31.01.2001, circulated that the persons who are entitled for less than 50%
disability should be computed as disability element as 50%; whereas in
respect of disability between 50-75% the said element should be 75% and
between 76-100%, the pension amount should be computed at the rate of
100%. It has been held by the Hon'ble Supreme Court in Civil Appeal
No.5591 of 2006 titled as KJS Buttar vs. Union of India, decided on
31.03.2011, that the benefit of the circular is admissible to all armed force
personnel and even to those who have retired prior to 1.1.1996. It has been
held that the stand of the respondent is that the disability of the appellant
cannot be enhanced to 75% because the relevant provision being para 7.2 of
Government of India, Ministry of Defence, letter dated 31.1.2001 is

applicable only to those cases where the officer was invalidated out of
service after 1.1.1996. The Court held that the restriction of the benefit to
only officers who were invalidated out of service after 01.01.1996 is
violative of Article 14 of the Constitution and is hence illegal.
In view of the above, the present petition is allowed. The
impugned order dated 13.04.2012 passed by the Armed Forces Tribunal,
Regional Bench, Chandigarh at Chandimandir, is set aside and the
respondents are directed to grant disability pension to the petitioner and also
to consider rounding off the pension in view of letter dated 31.01.2001
within a period of three months from today.
(HEMANT GUPTA)

26.05.2014

(FATEH DEEP SINGH)

Print Page