MADAN LAL Vs. UNION OF INDIA

JUDGEMENT

(1.) AFTER serving in the Army for more than 22 years, petitioner was discharged from service on account of down grading of his medical category. The petitioner was found to be suffering from "BLUNT INJURY (RT) EYE WITHY TRAUMATIC CATRACT N -897, E -928 V -67 Z -09, which was detected by the medical board conducted on 28 -10 -02. It was mentioned in the report that the injury was not connected with the service. In essence, it is stated that the injury was not attributable to or aggravated by the military service. Aggrieved by this order, present petition has been filed.

(2.) THE petitioner contends in his writ petition that he was discharged from service on 1 -1 -2003 after having served in the army for 22 years, 8 months and 7 days. He was invalidated from service on account of down grading of his medical category. Petitioners contention is that the aforementioned injury was incurred and aggravated during the military service. Petitioner states that he had served in the army for more than 22 years and at the time of his initial recruitment, no such injury was detected by the medical board.

(3.) THE stand of the respondents is that injury suffered by the petitioner was not attributable to or aggravated during military service. The opinion of the medical board is a final word and cannot be questioned before this court. The appeal filed by the petitioner was also rejected by the respondents. Regulation 173 of the Pension Regulations, 1961 provides that disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non - battle casualty and is assessed at 20% or over. Where the disability has not been attributable to military service, no disability pension is payable to an individual. In this respect, opinion of the medical board will hold good. However, in terms of Regulation 173 Appendix -II sub rule -7 makes it incumbent that a note is to be appended regarding the disease or injury of an individual at the time of his initial recruitment by the medical board. However, the medical opinion holds for the reasons to be stated that the disease could not have been detected on medical examination prior to the acceptance in the service. This safeguard has been provided in order to ensure that the person who has suffered any disability after joining the service, is not thrown out on the whims and caprice of the authority. The note is required to be appended that the said disease could not have been detected at the time the petitioner was recruited. At the time of boarding out, the board was required to indicate that this disease could not have been detected at the time of initial recruitment and also that it could not have been aggravated during the course of military service. Scanning through the report of the medical board, none of these conditions have been complied with by the respondents. There is no certificate issued by the board that the aforesaid disease could not have been detected at the time of initial recruitment of the petitioner nor has it been said that the injury could be aggravated during the course of military service. In face of this, it shall be presumed that disease was incurred by petitioner during the course of military service.