ROSHAN LAL Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was recruited as a Sapper in August, 1971, and thereafter promoted as a Havildar in 1992. While on his annual leave in the year 1992, he contracted an eye ailment. He reported sick to the Regimental Medical Officer of the Unit and was also treated at the Base Hospital Delhi and thereafter referred to the All India Institute of Medical Sciences, New Delhi, for opinion and advice. He was also operated upon in the Base Hospital and was subsequently discharged and put under medical category CEE (Permanent) for eye sight, on 7.6.1993, for a period of two years. He was, however, boarded out on account of his low medical category without the grant of any disability pension, vide order Annexure P-1 dated 22nd December, 1994. The petitioner thereafter preferred an appeal before the Government of India against the denial of disability pension and that too was rejected vide Annexure P-2, dated 29th March, 1996, on the ground that the medical reports and the opinion of the medical authorities had indicated that the disease that the petitioner had contracted was on account of a natural process and was not attributable to or aggravated by Military Service. The orders Annexures P-1 and P-2 whereby the petitioner's claim has been declined have been impugned in the present writ petition. The petitioner, in addition, also claims that he was entitled to the payment of disability cover envisaged under paragraph 2(f) of the Army Order 27/81 on the ground that he had been invalidated out of service with 40 per cent or more disability. The respondents have denied both these claims and reliance has been placed on paragraph 173 of the Pension Regulations for the Army, Part-I, of 1961 for this purpose and it has been pleaded that the petitioner's disease was not attributable to or aggravated by Military Service and, as such, the claim had been rightly rejected. The averments of the petitioner with regard to the Insurance Cover have also been denied and it has been pleaded that nothing was due to the petitioner on that account as well.

(2.) Mr. R.S. Randhawa, the learned counsel appearing for the petitioner, has raised two arguments before me. He has first urged that paragraph 173 ibid when read along with Appendix II, and paragraphs 7(a), (b) and (c) of the Pension Regulations, it was apparent that as no note had been recorded at the time when the petitioner was enrolled in August, 1971, that he was suffering from any disease, the inference was that the said disease was attributable to Military Service. He has also urged that though in paragraph 3 of the writ petition he had specifically mentioned that the disease had been aggravated by Military Service, no specific denial had been made by the respondents in their written statement.

(3.) Mr. Tribhuwan Dahiya, the learned counsel appearing for the respondent- Union of India, has, however, placed on record an opinion of the Medical Adviser (Pension), dated July 1 1994, in which it had been opined on a review of the appeal that "ID was a constitutional disorder of inflammatory nature and that it could not be said to have been aggravated by service factors".