ROHTASH Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) THE petitioner herein who was boarded out of Army Service on medical ground claims that he is entitled to disability pension. He had submitted a representation in this behalf to the Army Authorities which was rejected. He challenged that order by filing a civil suit in the Court of Civil Judge (Senior Division), Bhiwani (Haryana). On the constitution of the Armed Forces Tribunal, this suit was transferred to the Armed Forces Tribunal and has been decided vide judgment dated 23.12.2011 whereby his suit has been dismissed being devoid of merits. The facts which are not in dispute are that the petitioner was reenrolled in army on 19.10.1977 and was discharged on 31.10.2005. Thus, by the time he had rendered 28 years of service and on that basis he is getting normal pension. The reason for discharge of the petitioner from army service was that he was suffering from "Bilateral Obstructive Uropathy and Sub -acute Cutaneous Lupus Erythematosis" and as per the medical report this put him in medical category P2 and P -3 with 60 percent composite disability. On that basis, the Release Medical Board opined that the said disease was neither attributable nor aggravated by military service and petitioner had been boarded out of army service.

(2.) THE contention of the petitioner was that when he entered the army service in October, 1977, he was hale and hearty and was not suffering from any disease. Therefore, this disease is attributed to military service or at least aggravated by the military service. Respondents, however, maintained that the petitioner was downgraded to low medical category S1 H1 A1 P3 E1 w.e.f. 27.12.2004 for "Sub acute cutaneous lupus erythematosis". After the medical examination, the Release Medical Board had opined that the aforesaid disease was neither attributable to nor aggravated to the military service. The justification given by the Medical Board for coming to this conclusion was that (a) it was constitutional disease and (b) it was not related to military service, meaning thereby the functions which were performed by the petitioner could not have led to the aforesaid disease. It is not in dispute that to earn disability pension it needs to be specified that the disease from which the army official suffered and which led to his discharge from the military service was either attributable or aggravated by the military service. The respondents have also framed requisite rules in this behalf and the primary conditions for grant of disability pension are given in Pension Regulation for the Army, 1961. Under Regulation 173, it is provided that if a person is disabled 20% or above and invalided out of service on account of a disability which is attributable to or aggravated by military service, the disability is attributable to or aggravated shall be determined under the rule in Appendix -II. Under Regulation 173 -A, the persons 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 has been retained in alternative appointment, are discharged before completion of their engagement, shall be deemed to have been invalided from service for the purpose of entitlement rules laid down in Appendix -II to these Regulations. Regulations 173 and 173 -A are reproduced herein below: -

(3.) KEEPING in view the aforesaid parameters we have to examine the disease from which the petitioner is suffering. The Tribunal has noted that "Pelvic Lipomatosis" is a disease of unknown cause characterized by overgrowth of mature non -malignant fat cells in the pelvic region, especially in the perivesical and perirectal spaces. It is a rare disease and has been linked to obesity.