DARIYAI SINGH Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) The petitioner was recruited in the Indian Army as Sepoy on 1.2.1976 and after serving with the Kumaon Regiment, he was invalided out of service on 19.1.1993 on the recommendations of the Medical Board dated 31.12.1992, which categorised him in medical category EEE on account of his suffering from Cranio Pharyngioma (Operated). The percentage of his disability was assessed more than 20%. In his pension payment order Annexure 1, . the invaliding disability was shown as Cranio Phargioma (Operated), which was neither attributable to or aggravated by military service. His disability pension claim was rejected by the Records Officer, Records Office, Kumaon Regiment Ranikhct (respondent No. 3) vide his letter dated 9.7.1993. Annexure 2 on the ground that his disability was not attributable to or aggravated by military service. The appeal filed by the petitioner against decision taken by the respondent No. 3 was also dismissed by the Ministry of Defence, Union of India vide letter dated 11.5.1994 Annexure 5.

(2.) The petitioner averred that he was medically fit at the time of his enrolment in the Indian Army and that he did not suffer from any such disease at that time nor any Note was made by the Army Recruiting Authority that he suffered from Cranio Pharyngioma nor there is any material available with the respondents to show that the said disease could not have been detected on medical examination prior to this acceptance for service. The petitioner further averred that as per Rules the disease, which has led to an individual discharge or death will ordinarily be deemed to have arisen in service, if no Note of which was made at the time of individual's acceptance for military service, however, if medical opinion holds for reasons to be stated that such disease could not have been detected on medical examination prior to acceptance for service then the disease will not be deemed to have arisen during service. The petitioner has, therefore, prayed for issuance of writ of mandamus to the respondents to pay him the disability pension with effect from 19.1(1.93 in accordance with Rules along with interest @ 15% per annum and that Annexure 2 & 5 be also quashed.

(3.) This writ petition has been opposed on the ground that the petitioner is not entitled to claim disability pension because his disability was a constitutional disorder and not connected with the services, that such disability was neither attributable to nor was aggravated by military service. The respondents have pleaded that at the time of the recruitment of an individual in the Army, only external medical examination is conducted and as such the ailment of the petitioner namely Cranio Pharyngioma could not be detected at that time and asserted that his claim for grant of disability pension has been rightly rejected.