UNION OF INDIA Vs. ANGREZ SINGH

JUDGEMENT

(1.) THIS Letters Patent Appeal is directed against the order dated 05 -08 -2005 passed in SWP No. 2543/2002 whereby the respondent has been held entitled to disability pension and consequently respondents have been directed to release the same in his favour.

(2.) FACTS which are not in dispute are that the respondent was enrolled in the Indian Army on 28th June, 1984 and alter basic military training, he was posted at different places and stood transferred from Suratgarh to Jalandhar for temporary duty in the beginning of year 1991. While on temporary duty he became seriously ill and was admitted to Military Hospital, Jalandhar, where he remained admitted for one month and then referred to Army Hospital, Delhi. After receiving the medical treatment, the respondent was examined by the Medical Board and was placed in 'CCC' (permanent) category, due to the disease 'HORSE SHOE KIDNEY WITH SOLITARY RENAL CALCILUS (LT) with which he was declared to be suffering. On being placed in low medical category CEE (Temporary) and then CEE (Permanent) w.e.f. 6th Nov. 1993 on account of HORSE SHOE KIDNEY WITH SOLITARY RENAL CALCILUS (LT) disease with 20% disability, the respondent was invalided out of service. The opinion of the Release Medical Board in regard to the disability of the respondent was that it is: (a) Neither attributable to/nor aggravated by military service. (b) Constitutional in nature and not related to service; (c) Attributable to/aggravated by military service by assessed at less than 20% for life w.e.f. 01 -07 -2001.

(3.) WE have heard the learned Counsel for the parties and perused the record. The contention of the learned Counsel for the appellant is that since the medical board has opined that the disability of the petitioner was not attributable to military service nor it was aggravated thereby, therefore, the respondent is not entitled to disability pension. To the contrary the contention of the learned Counsel for the respondent is that since at the time of induction of the petitioner into army in his medical examination no such disease was detected on the person of the petitioner, therefore, it is to be presumed that at that time he was physically fit and was not suffering from any such disease, which has caused the disability. The disease, according to him with which the petitioner has been found suffering during his service is to be deemed to have resulted from the conditions of military service or in any case it was aggravated thereby, therefore, the respondent was entitled to disability pension and as such, the learned Single judge was justified in allowing the writ petition in terms of regulation 173 of Pension Regulations for the Army 1961. Regulation 173 postulates that unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of disability which is attributable to or aggravated by military service and is assessed at 20 percent or above. Regulation 173 reads as follows: Primary conditions for the grant of disability pension. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of disability which is attributable to or aggravated by military service and is assessed at 20 percent or above' The question whether a disability is attributable to or aggravated to by military service shall be determined under the rule in Appendix -II.