ASHWANI KUMAR EX Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, who stands discharged from Army w.e.f. 31.7.1992, has filed this petition for issue of a mandamus to the respondents to pay him disability pension in accordance with the Pension Regulations of the Army.

(2.) The petitioner was enrolled in the Indian Army on 5.1.1980 after being subjected to medical examination. He was placed in medical category 'A' (AYE). After 8 years and 9 months of service, the petitioner was treated for hypertension. On the recommendations of the medical board, he was placed in medical category BEE. His disability was accepted to be 20% and he was discharged w.e.f. 31.7.1992 on the basis of the recommendation made by the medical board. He made representation for grant of disability pension which was turned down by the CCDA (Pension), Allahabad. This is evident from Annexure P-1, dated 21.4.1993, conveyed to the petitioner by the Commanding Officer, Artillery Records. Appeal filed by the petitioner against the decision of the CCDA (Pension) has also been rejected by the Government of India on the ground that the disability on account of which he was released from service was constitutional and there was no record of exceptional or unusual mental or physical stress due to service factor. The petitioner has challenged the decision of the respondents to deny him pension on the ground that when no note was recorded about any disease or disability at the time of entry in the military service and no other reason has been recorded by the medical board to come to a conclusion that the disease of the petitioner was not such which could be discovered at the time of entry in the service, disability pension cannot be denied to him. In their reply, the respondents have admitted that the petitioner was discharged from service w.e.f. 31.7.1992 and that his disability has been assessed at 20%. However, they have stated that this assessment was for a period of 2 years only. The respondents have pleaded that the petitioner was found to be suffering from "essential hypertension" which cannot be attributed to military service. The respondents have submitted that there is no causal relationship between the disease from which the petitioner suffers and the military service and, therefore, he is not entitled to claim disability pension. The respondents have relied on Para 173 of the Army Pension Regulations and Rule 7(c) of Appendix-II to support their plea that "essential hypertension" is a constitutional disease and it cannot be treated as a disability attributable to the military service.

(3.) During the course of arguments, learned counsel for the respondents produced the original record of the medical board and argued that the petitioner's father and mother also suffered from hypertension and, therefore, disease of the petitioner must be treated as hereditary and the rejection of the claim of the petitioner for grant of disability pension is justified. Learned counsel for the petitioner relied on Para 173 of the Army Pension Regulations as well as Rule 7(b) of Appendix-II and argued that in the absence of any note recorded at the time of the petitioner's entry in the service and in the absence of any material to show that in the opinion of the medical board, the disease could not be detected on medical examination, the benefit of presumption contained in first part of Rule 7(b) of Appendix II should be given to the petitioner. He placed reliance on a judgment of this court dated 9.11.1995 in Civil Writ Petition No. 10834 of 1995 Ex. Hav. Randhir Singh v. Union of India and others.