[Cites 6, Cited by 0]
Kerala High Court
Hony. Lt. (Sub Maj) Joogin M.S. (Retd.), ... vs Union Of India on 11 February, 2026
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K. NATARAJAN
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 11TH DAY OF FEBRUARY 2026 / 22ND MAGHA, 1947
WP(C) NO. 41268 OF 2025
PETITIONER/APPLICANT:
HONY. LT. (SUB MAJ) JOOGIN M.S. (RETD.), JC-308975 P,
AGED 54 YEARS, S/O LATE SEBASTIAN M J, MELETH HOUSE,
PARIYARAM P.O., CHALAKUDY, THRISSUR, KERALA, PIN - 680 721.
BY ADVS.
SRI.V.K.SATHYANATHAN
SHRI.VINOD K.C.
SMT.RATI VARMA
SMT.K.R.RENJU
RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH
BLOCK, NEW DELHI, PIN - 110 011
2 THE CHIEF OF ARMY STAFF, COAS'S SECRETARIAT, INTEGRATED HEAD
QUARTERS OF MOD (ARMY), SOUTH BLOCK, NEW DELHI.,
PIN - 110 011.
3 THE OFFICER-IN-CHARGE RECORDS
RECORDS OFFICE, THE MADRAS MADRAS ENGINEER GROUP, C/O 56
A.P.O., PIN - 900 493.
4 PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS)
OFFICE OF PCDA (P), DRAUPADI GHAT, ALLAHABAD, UTTAR PRADESH.,
PIN - 211 014.
BY ADV SMT.SANJANA R.NAIR, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.02.2026, THE COURT ON 11.02.2026 DELIVERED THE FOLLOWING:
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K. NATARAJAN & JOHNSON JOHN, JJ.
---------------------------------------------------------
W.P.(C). No. 41268 of 2025
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Dated this the 11th day of February, 2026
JUDGMENT
Johnson John, J.
The writ petitioner was the applicant in O.A. No. 58 of 2024 before
the Armed Forces Tribunal, Regional Bench, Kochi. His application
against non grant of disability element of pension for the disability
'primary hypertension' was dismissed by the Tribunal and the same is
under challenge.
2. Heard Sri. Sathyanathan V.K., the learned counsel for the writ
petitioner and Smt. Sanjana R. Nair, the learned Central Government
Counsel appearing for the respondents.
3. The learned counsel for the writ petitioner argued that the writ
petitioner was enrolled in the Indian Army on 24.04.1990 and he was
placed in the low medical category on 03.10.2013, while serving at
Visakhapattanam for the disease 'primary hypertension' and
subsequently, he retired from service on 31.5.2020 on completion of
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terms of enrolment. It is argued that his application for disability
element of pension was dismissed for the reason that the disability was
neither attributable to nor aggravated by the military service.
4. The learned counsel for the writ petitioner argued that in view
of Rule 9 of the Entitlement Rules for Casualty Pensionary Awards, 1982,
the applicant cannot be called upon to prove the conditions of
entitlements, and that a conjoint and harmonious reading of Rules 5, 9
and 14 of Entitlement Rules (supra), shows that it is to be presumed
that a member have been in sound, physical and mental condition upon
entering service except as to physical disabilities noted or recorded at
the time of entrance and in the event of his being discharged from
service on medical grounds at any subsequent stage, it must be
presumed that any such deterioration in his health which has taken place
is due to such military service.
5. The learned Central Government Counsel appearing for the
respondents argued that the opinion of the Medical Board on the
question whether the disability is attributable to or aggravated by
military service must be respected and that the opinion expressed by
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medical experts could not be lightly brushed aside and in this
connection, she relied upon the decisions of the Honourable Supreme
Court in Union of India and Ors. v. Keshar Singh (2007) 12 SCC
675, Om Prakash Singh v Union of India and Ors. (2010) 12 SCC
667, Secretary, Ministry of Defence and Ors. v. A. V Damodaran
(Dead) through LRs. and Ors. (2009) 9 SCC 140 and Union of India
and Ors. v. Ram Prakash (2010) 11 SCC 220).
6. Regulation 37 of the Pension Regulations for the Army, Part-I
(2008) regarding disability element of pension at the time of retirement,
reads thus:
"DISABILITY ELEMENT IN ADDITION TO RETIRING
PENSION TO OFFICER RETIRED ON ATTAINING THE
PRESCRIBED AGE OF RETIREMENT
37. (a) An Officer who retires on attaining the prescribed age of
retirement or on completion of tenure, if found suffering on
retirement, from a disability which is either attributable to or
aggravated by military service and so recorded by Release Medical
Board, may be granted in addition to the retiring pension admissible, a
disability element from the date of retirement if the degree of
disability is accepted at 20% or more.
(b) The disability element for 100% disability shall be at the rate
laid down in Regulation 94 (b) below. For disabilities less than 100%
but not less than 20%, the above rates shall be proportionately
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reduced. Provisions contained in Regulation 94(c) shall not be
applicable for computing disability element."
7. In Annexure A2 opinion of the Release Medical Board on the
question as to why the disease is not related to service as per job profile
and place of posting, it is stated as follows:
"Onset of ID was on 10 Sep. 2013 at Visakhapatnam (AP), Indl
was serving in peace area at the time of onset ID. Hence ID is
conceded as NANA to miliatary service. Refer para 43 Chapter-VI
GMO Military Pension -2008"
8. The learned counsel for the writ petitioner argued that even
though the medical board assessed disability of 30% for the disease
'primary hypertension', there is no finding regarding the root cause of
the disease and in such a situation, the opinion of the medical board that
the disability was neither attributable to nor aggravated by the military
service, cannot be accepted and that the writ petitioner is entitled to
derive the benefit of the presumptions as per the Entitlement Rules
(supra). But, the learned Central Government Counsel appearing for the
respondents argued that it is not possible to identify the root cause of
primary hypertension as the risk factors are heavily linked to obesity,
lifestyle genetics etc.
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9. In Union of India v. Parashotam Dass (2025) 5 SCC 786,
the Honourable Supreme Court held that where there is denial of
fundamental right or jurisdictional error or error apparent on the face of
record, the High Court can interfere by exercising the jurisdiction under
Article 226 of the Constitution of India and that self-restraint by High
Court in exercise of jurisdiction under Article 226 of the Constitution is
distinct from putting embargo on High court in exercising such
jurisdiction. In the said decision, the Honourable Supreme Court held
thus in paragraph 30:
"30. How can courts countenance a scenario where even in the
aforesaid position, a party is left remediless? It would neither be
legal nor appropriate for this Court to say something to the
contrary or restrict the aforesaid observation enunciated in the
Constitution Bench judgment in S.N. Mukherjee [S.N. Mukherjee v.
Union of India, (1990) 4 SCC 594 : 1990 SCC (Cri) 669 : 1991 SCC
(L&S) 242] case. We would loath to carve out any exceptions,
including the ones enumerated by the learned Additional Solicitor
General extracted aforesaid as irrespective of the nature of the
matter, if there is a denial of a fundamental right under Part III of
the Constitution or there is a jurisdictional error or error apparent
on the face of the record, the High Court can exercise its
jurisdiction. There appears to be a misconception that the High
Court would reappreciate the evidence, thereby making it into a
second appeal, etc. We believe that the High Courts are quite
conscious of the parameters within which the jurisdiction is to be
exercised, and those principles, in turn, are also already enunciated
by this Court."
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10. In this case, it is not in dispute that the applicant was
discharged on completion of terms of enrolment and the disease
'primary hypertension' has been assessed neither attributable to nor
aggravated by military service by the Release Medical Board. The onset
of the disease was on 10.09.2013 at Visakhapatnam where the applicant
was serving in the peace area and therefore, in the absence of any
material to indicate that the disability assessed by the medical board is
attributable to or aggravated by military service, it cannot be held that
there is any denial of fundamental right or jurisdictional error or error
apparent on the face of the record warranting interference under Article
226 of the Constitution of India. Therefore, we find that this writ
petition is liable to be dismissed.
In the result, this writ petition is dismissed.
sd/-
K. NATARAJAN,
JUDGE.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
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APPENDIX OF WP(C) NO. 41268 OF 2025
PETITIONER'S ANNEXURES:
Annexure-A2 TRUE COPY OF THE AFMSF-16 PERTAINING TO THE
APPLICANT.
Annexure-A3 TRUE COPY OF THE LETTER NO.JC-308975P/PEN(D)
DATED 19.9.2020.
Annexure-A5 TRUE COPY OF THE LETTER
NO.B/40502/1481/2022/AG/PS-4 (1ST APPEAL) DATED
21.2.2023.
Annexure-A7 TRUE COPY OF THE LETTER
NO.B/38046A/513/2023/AG/PS-9 DATED 07.12.2023.
Annexure-A1 TRUE COPY OF THE RELEVANT PAGES OF THE DISCHARGE
BOOK.
Annexure-A4 TRUE COPY OF THE FIRST APPEAL DATED 9.8.2022.
Annexure-A6 TRUE COPY OF THE SECOND APPEAL DATED 6.4.2023.
Exhibit-P1 TRUE COPY OF THE MEMORANDUM OF ORIGINAL
APPLICATION, OA NO. 58 OF 2024 DATED 17.02.2024.
Exhibit-P2 TRUE COPY OF THE REPLY STATEMENT SUBMITTED BY
THE RESPONDENTS.
Exhibit-P3 TRUE COPY OF THE ORDER DATED 13 AUG 2024 IN O.A.
NO. 58 OF 2024 PASSED BY THE ARMED FORCES
TRIBUNAL REGIONAL BENCH, KOCHI.
RESPONDENTS' ANNEXURES: NIL
/True Copy/
P.S to Judge.
rv
