BALDEV SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The above writ petitions have been filed seeking issuance of a writ to the respondents to grant disability pension to the petitioners with effect from due date with all consequential benefits.

(2.) Before I advert to the relevant facts, it will be necessary to note down the position of law with regard to admissibility of disability pension to various personnel in the Army. Pension Regulations for Army, 1961 (herein -after referred to as "the Regulations") have been brought for settlement of all claims of pension, gratuity and allowances of personnel of Indian Army, at the time of individuals retirement, release, resignation, discharge and death etc. Part -I of these Regulations stipulates that unless otherwise specifically provided a disability pension may be granted to any individual who is invalided from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 per cent or over. The question whether a disability is attributable to or aggravated by military service shall be determined under the rules in Appendix II. Appendix -II referred to in Regulation 173 has 9 Clauses and Annexures. For the purposes of entitlement and disbursement of disability pension, Clause (2), Clause (4) and Clause (7) of Appendix -II is relevant. The Army Act, 1950 (Section 192) empowers the Central Government to frame Regulations for defence personnel. Clause (ii) clearly stipulates that disablement or death shall be accepted as due to military service provided it is certified that the disablement is due to a wound, injury or disease attributable to military service, or arose during military service and has been and remains aggravated thereby. The relevant rules are Rules 2, 3, 4 and 7 which read as follows: "2. Disablement or death shall be accepted as due to military service provided it is certified that: (a) the disablement is due to a wound, injury or disease which - (i) is attributable to military service; or (ii) existed before or arose during military service and has been and remains aggravated thereby; (b) The death was due to or hastened by -(i) a wound, injury or disease which was attributable to military service; or (ii) the Aggravation by military service of a wound, injury or disease which existed before or arose during military service. (3) There must be a casual connection between disablement and military service for attributability or aggravation to be conceded. (4) In deciding on the issue of entitlement all the evidence, both direct and circumstantial, will be taken into account and the benefit of reasonable doubt will be given to the claimant. This benefit will be given more liberally to the claimant in field service cases. (7) In respect of disease, the following rules will be observed: (a) Cases, in which it is established that conditions of military service did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease will fall for acceptance on the basis of aggravation. (b) A disease which has led to an individuals discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of the individuals acceptance for military service. However, if medical opinion holds, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service the disease will not be deemed to have arisen during service. (c) If a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service."

(3.) Whether the disability is due to an injury which is attributable to military service or an injury which existed before or arose during military service and has been and remains aggravated thereby is an issue which has been considered both by this Court as also the apex Court. These Regulations have been enacted to confer certain benefits upon Army personnel who have rendered their services in various forms and places under extreme climatic condition and is undoubtedly a beneficial legislation. While interpreting the provisions of such legislation, the Court has always adopted liberal construction favoring claims. The beneficial legislation is statutorily and necessarily required to confer benefits, rather than deprive them of the disability pension. In fact, in order to safeguard the rights of persons with disabilities and enabling them to enjoy equal opportunity and help them to fully participate in national life, the Central Government has also come out with a comprehensive legislation which is commonly known as "Persons and Disabilities, Equal Opportunity, Protection of Rights and other participation Act", 1995. The petitioners are not seeking any relief in terms of this statute. But be that as it may the fact of the matter that keeping in view the various hardship which the citizens of the country have been facing and as encouragement thereof a comprehensive legislation has been brought in to provide remedial measures for the disabled persons who have contributed in great measure and value in protecting this Country and defending its barriers. A person does not acquire or suffer disability by choice and such a person, if not protected, is not only bound to suffer personally but also make other suffer who are dependant upon him economically and socially. Of course, the entitlement of pension has to be within the frame work of the Regulations which have been interpreted by various Courts from time to time. Recently, this Court in a judgment rendered CWP No.742 of 2003 titled as Santosh Kumar v. Union of India and others, has held that a person is entitled to disability pension while considering various provisions of the Regulations. And earlier decisions of this Court in Piar Chand v. Union of India and another, 1995 (2) S.LJ. 1230, CWP No. 382 of 1992, Ajit Kumar v. Union of India, Chamel Singh v. Union of India and Others, Latest HLJ 2004 HP 671, and three decisions of the Apex Court in Union of India and another v. Baljit Singh, (1996) 11 Supreme Court Cases 315, Union of India and others v. Dhir Singh China, Colonel, (2003) 2 Supreme Court Cases 382 and Controller of Defence Accounts (Pension) and others v. S. Balachandran Nair, (2005) 13 Supreme Court Cases 128, have held that to be entitled to disability pension, it must be established that the disability has occurred due to a wound injury or disease which is attributable to military service or existed before or during military service and has been and remains aggravated thereby. It is also to be established that the condition of military service determine or contribute to the onset of the disease condition totally attributable to the military service as also the aggravation thereof. Undoubtedly, the opinion of the Medical Board is to be given primacy. However, the circumstance rendering the said opinion assailable would empower and entitled this Court to step in, examine the same and if need be set aside the same for effectuating justifiable statutory relief as may be necessitated under the various circumstances.