MOHAN LAL Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) After serving with 112 I.NF BN. (T.A.), the petitioner was invalidated out of service on the recommendations of the Medical Board which categorised him "CEE(P)" on account of contracting disease - Ani- sometropiat Amblypia in the right eye. After his discharge from service, the petitioner applied for disability pension on the ground that he had suffered disability of 20% during the course of employment and his disability was attributable to the military service. Request of the petitioner was rejected by the Officer-in-charge, Records, Dogra Regiment, Faizabad vide communication dated 5.4.1989 Annexure P-1 on the ground that the disability suffered by the petitioner was not attributable to the military service. The appeal filed by the petitioner against the decision taken by the Officer-in-charge, Record has been rejected by the Government of India vide Annexure R-2. In the writ petition, it has been alleged that the petitioner had contracted the disease during the Army service and it was aggravated during the training camp with 112 INF. BN. (T.A.) and for this, the respondents were responsible. The petitioner has prayed for issue of a writ of mandamus to the respondents to pay him disability pension in accordance with the rules. He has prayed that the decision taken by the respondents rejecting his claim for grant of disability pension be declared illegal and be quashed.

(2.) The writ petition has been opposed on the ground that the petitioner has no right to claim disability pension because his disability was constitutional and it could not be attributed to the military service or aggravated thereby. Respondents have pleaded that the petitioner did not suffer disability either during the service or during the training camp and, therefore, his claim for grant of disability pension cannot be entertained.

(3.) Mr. Sarwan Singh, learned counsel for the petitioner, argued that in view of the provisions contained in Rule 7 of the Government of India, Ministry of Defence Instructions, which have been quoted in para-15 of the Writ Petition, it is for respondents to note the constitutional disability of a person in the military service on his initial appointment and if no such note has been prepared, there must exist a reasoned medical opinion that the disability could not have been detected at the time of medical examination in entry in service and as in the case of petitioner, no such note was recorded at the time of his entry in the service, the disability suffered by the petitioner must be treated as attributable to the service. Learned counsel relied on an order dated 8.11.1993 passed in C.W.P. No. 2863 of 1993 : (Surjit Singh v. Union of India and another,1994 1 SCT 653) and submitted that his case is squarely covered by the decision in Surjit Singh's case.