Union Of India And Others vs Ex L Naik Gurdev Singh And Another
2025 Latest Caselaw 839 P&H

Punjab-Haryana High Court

Union Of India And Others vs Ex L Naik Gurdev Singh And Another on 14 January, 2025

Bench: Sureshwar Thakur, Sudeepti Sharma

                              Neutral Citation No:=2025:PHHC:003624-DB

CWP-34967 of 2024               1




        IN THE HIGH COURT OF PUNJAB & HARYANA
                    AT CHANDIGARH.

                                            CWP-34967 of 2024
                                            Reserved on: 20.12.2024
                                            Pronounced on:14.01.2025

UNION OF INDIA AND ORS.                                      .....Petitioners


                                    Versus


Ex. L. NAIK GURDEV SINGH AND ANOTHER                         ..Respondents



CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
       HON'BLE MRS. JUSTICE SUDEEPTI SHARMA


Argued by: Mr. Amit Arora, Advocate,
           for the petitioners-UOI.

            ****

SURESHWAR THAKUR, J.

1. Through the instant writ petition, the petitioner herein-

Union of India, prays for the setting aside of the order dated 26.07.2021

(Annexure P-1), as passed by the learned Armed Forces Tribunal

concerned, wherebys the claim of respondent No. 1 for the grant of

disability pension was allowed.

Factual Background

2. Respondent No. 1 joined Army on 06.10.1979 in a fit state

of health and was discharged from service with effect from 31.10.1996.

Thereafter, respondent No.1 was re-enrolled into DSC on 21.05.2000

and was discharged therefroms on 31.05.2010 post rendering 10 years

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and 11 days of service. During the course of his service, he incurred the

disability of "PRIMARY HYPERTENSION". The said disability was

assessed @ 30 % for life, by the release medical board.

3. The disability element claim of respondent No.1 was

rejected by the Competent Authority, thus on the ground that the supra

disability was neither attributable to nor being aggravated by rendition

of military service.

4. Respondent No. 1 filed O.A., before the learned Armed

Forces Tribunal concerned, wherebys he cast a challenge to the afore

said rejection order. The said O.A., became allowed vide order dated

26.07.2021. The operative part of the said order is extracted hereinafter.

"The Original Application is, accordingly, allowed and applicant is held entitled for service element of DSC service and disability element @ 50% against 30% disability w.e.f. 01.06.2010 for life. The respondents are directed to calculate the arrears accordingly and to pay the same to the applicant within a period of three months from the date of receipt of a certified copy of this order by the learned counsel for the respondents/OIC, Legal Cell, failing which the arrears shall carry an interest @8% p.a. from the date of this order."

5. Feeling aggrieved from the aforesaid order as passed upon

the O.A. (supra), by the learned Armed Forces Tribunal concerned, the

petitioner-Union of India has filed thereagainst the instant writ petition

before this Court.

Inferences of this Court.

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6. Before proceeding to make an effective adjudication upon

the present writ petition, a useful assistance for determining whether

the befallment of any disease vis-à-vis any member of the defence

personnel, but post his being enrolled in the army, despite at the initial

stage, upon his becoming enlisted, as a member of the combatant

defence establishment, rather the same remaining undetected, yet the

apposite eruption, thus post enlistment hence being construable to be

either congenital or being construable to become aggravated or being

attributable to military service, thus is acquired, from, the principles set

forth in the judgment rendered by the Hon'ble Apex Court, in case titled

as Dharamvir Singh Vs. Union of India, reported in (2013) 7 SCC

316. The relevant paragraphs of the said verdict are extracted

hereinafter.

29. A conjoint reading of various provisions, reproduced above, makes it clear that:

(i) Disability pension to be granted to an individual who is invalidated from 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. The question whether a disability is attributable or aggravated by military service to be determined under "Entitlement Rules for Casualty Pensionary Awards, 1982" of Appendix-II (Regulation 173).

(ii) A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be presumed due to service. [Rule 5 r/w Rule 14(b)].

(iii) Onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for non-entitlement is

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with the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally.

(Rule 9).

(iv) If a disease is accepted to have been 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. [Rule 14(c)].

(v) If no note of any disability or disease was made at the time of individual's acceptance for military service, a disease which has led to an individual's discharge or death will be deemed to have arisen in service. [14(b)].

(vi) If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and that disease will not be deemed to have arisen during service, the Medical Board is required to state the reasons. [14(b)]; and

(vii) It is mandatory for the Medical Board to follow the guidelines laid down in Chapter-II of the "Guide to Medical (Military Pension), 2002 - "Entitlement : General Principles", including paragraph 7,8 and 9 as referred to above.

30. We, accordingly, answer both the questions in affirmative in favour of the appellant and against the respondents.

7. An incisive reading(s) of the above extracted principles,

though pointedly declare, that when a disability becomes entailed upon

any member of the combatant defence establishment, and which is to

the extent of 20 % or over, thereupon, though any such disabled

member is required to be invalided from the Army, but yet he is

required to be assigned the benefit of disability pension.

8. Nonetheless, the assignment of disability pension to any

member of the combatant defence establishment, who becomes entailed 4 of 16

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with a disability in a quantum of 20 % or more, but imperatively

requires a declaration from the Medical Board, rather candidly

pronouncing that the said attained disability being attributable to or

becoming aggravated by military service. The said declaration becomes

enjoined by the "Entitlement Rules for Casualty Pensionary Awards,

1982" of Appendix-II (Regulation 173).

9. Furthermore, though thereins a presumption is assigned

vis-à-vis the sound physical and mental health of any member of the

defence establishment concerned, especially when at the stage of his

becoming enrolled, there is no note or record about his becoming beset

with any disease. Moreover, though thereins there is also a further

presumption, that when any deterioration theretos, thus occurs

subsequently, therebys the said happening of deterioration(s) or

onsettings of any disease, rather is to be presumed to be a sequel of his

rendering service as a member of the defence establishment.

Imperatively, the onus for proving the non endowments qua benefits

(supra) vis-à-vis the concerned, but is rested on the employer, and in

case, the said onus remains un-discharged, thereupon, the claimant

becomes entitled to receive disability pension. Moreover, all the facts

and circumstances attendant to the rendition of service by the

concerned, are to be closely scrutinized, thus for declaring whether the

onset of any disease vis-à-vis the concerned, is a sequel qua renditions

of military service and/or the same being aggravated by or being

attributable to military service.

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10. Be that as it may, thereins becomes also set forth a further

principle(s) that yet there can be denial of disability pension to the

concerned, but only upon:

a) At the time of acceptance of the concerned in military

service, some notings becoming recorded by the Medical

Board vis-a-vis his being beset with a disease which

however, becomes concluded to be yet not rendering him

unfit to become enlisted.

b) Any further deterioration thereofs, may also

subsequently become concluded by the Medical Board, to

not arise from rendition of military service nor being

attributable to military service, rather the same being a

congenital disease.

11. Further, if the medical opinion holds that the disease could

not have been detected on medical examination of the concerned being

made, thus prior to his becoming enlisted in service, thereupons, the

same will not be deemed to have arisen during service, yet in the

situation (supra), the Medical Board is required to state the reasons for

so concluding.

12. Moreover, it is also declared in supra, that it is mandatory

for the Medical Board to follow the guidelines laid down in Chapter-II

of the "Guide to Medical (Military Pension), 2002 - "Entitlement:

General Principles".

13. Therefore, it has to be now determined whether in terms of

the above principles, whether at the time of enlistment of the present

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respondent in the Army, thus after a preliminary medical examination

being made vis-a-vis his health, thus a note became recorded about

some disease besetting him and/or whether some note became

appended that the said disease was in a dormant stage. Moreover, it is

also required to be determined, from the facts at hand, whether there is

a causal nexus inter-se the eruption of the disease, and/or the onsettings

thereofs, on to his person, thus post the enrollment of the present

respondent taking place, vis-a-vis the active renditions by him of

military service, wherebys, this Court may conclude that the onset of

the disease but rather was a sequel of his rendering service in the Army

and as such was attributable or became aggravated by his rendering

military service.

14. In addition, it is also required to be gathered from the

records, whether the Medical Board, did initially proceed to make a

detailed incisive antecedental check, particularly appertaining to the

advent of the disease, through employments of State of Art medical

techniques, thus unveiling the block chain genetic connection,

wherefroms, rather the disease became sourced. Moreover, if the said

employment fails. Resultantly, therebys it may become concluded qua

eruptions thereof, thus subsequent to the apposite enlistment taking

place, rather was not congenital but owed its origin to rendition of

military service besides it being attributable to or becoming aggravated

by performance of military service. Contrarily, if the supra employed

techniques at the stage of apposite enlistment taking place, thus by the

Medical Board concerned, leads to a conclusion, that there are rather

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dormant incidences of any disease, but yet the said dormant disease not

prohibiting the enlistment of any personnel in the army, navy or air

force. Resultantly the subsequent active detection/eruption thereofs,

during the course of rendition of military service, but would naturally

lead to a well conclusion by the Medical Board, that its active eruption

but became sourced from an effective causal genetic connection

wherebys there would be denial of disability pension.

15. However, now in the said endeavour, this Court is required

to be extracting the contents of the opinion, as became recorded by the

release medical board. In the said regard, the order passed by the

second appellate authority is extracted hereinafter.

"Onset of ID was in Jul 2004 at Gangtok, Sikkim (Mod.

Fd). The individual was detected to have Primary Hypertension during

AME and was placed in low medical category. He was managed with

anti hypertensive drugs. At RMB, he was normotensive on medication

with no evidence of target organ damage. ID Primary Hypertension is

an idiopathic in origin and is per se not attributable to service.

Aggravation may be conceded if onset occurs while serving in Fd/CI

Ops/HAA services. In the instant case, onset was in a Mod Fd station.

Hence, ID is conceded as neither attributable to nor aggravated by

military service (Para 43, Chap VI, GMO 2002, amendment 2008).

16. A reading of the records reveals that at the time of the

apposite enlistment taking place rather no note became made in terms

of the principles (supra) declared by the Hon'ble Apex Court in case

titled as Dharamvir Singh Vs. Union of India (supra) by the Medical

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Board, that some disease which however, did not forbid the present

respondent, to become enlisted in the Army, did make its preliminary

onsettings. If so, the declaration of law in judgment (supra) that

therebys there is a presumption that the incurring of the said disease

was a sequel of rendition of service, is required to be favourably

endowed vis-a-vis the respondent. Though the said presumption is

rebuttable but the onus to lead evidence to rebut the said presumption

became cast upon the petitioner. However, the said cast evidence

adducing discharging onus vis-a-vis the respondent, rather for cogently

rebutting the said presumption, but naturally also did cast an onerous

duty also upon the Medical Board, to engage itself in the endeavour of

unearthing, through employments of the State of Art block chain

genetic causal connection technique(s), wherebys it may became

unraveled that the onsetting of the disease onto the army personnel,

became sourced from antecedental genetic family history. Moreover,

therebys it was also required to be stated in the medical opinion, that

the disease but for a well formed reason rather was a congenital disease

and became neither aggravated by nor became attributable to military

service.

17. However, a reading of opinion (supra), discloses that it has

been recorded in a stereo typed form and no reasons have been

recorded to the extent (supra). Reiteratedly, since no evidence to rebut

the presumption (supra) has been led by the petitioner, therebys, this

Court is constrained to give no weightage to the opinion of the medical

board, as extracted (supra). Conspicuously, therebys no credence can be

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assigned to the supra ill informed reason, besides therebys the onsetting

of the disease cannot be said to be a sequel of antecedental genetic

family history. Contrarily, it is required to be declared to arise from

rendition of military service. In addition, it is required to be declared to

be attributable or becoming aggravated by rendition of military service

by the present respondent.

18. Moreover, though it is stated thereins that the disease(s)

occurred while service became performed by the defence personnel

rather in a peace area, but since there is no express mandate in the

relevant regulations, which makes the onsettings of the disease(s) in a

peace area, to not beget a further sequel that as such, it's onsettings did

not arise from the rendition of military service nor it became

aggravated by rendition of the military service. In consequence, the

lack of the said express mandate in the regulations, does constrain this

Court to conclude, that even if the onsettings of the said disease(s) upon

the present respondent thus occurred in a peace area, thereby, the said

onsettings are to be declared to become aggravated by or being

attributable to rendition of military service.

19. Further, since in terms of the judgment rendered by the

Apex Court, in case titled as 'Union of India Vs. Ram Avtar', reported

in 2014 SCC Online 1761, whereins, a declaration is made to the

extent, that the benefit of rounding off, rather has to become endowed

to the concerned. Resultantly also thereunders an indefeasible right

became vested in the present respondent for his seeking qua the

apposite roundings off being made in his favour.

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20. Even otherwise since the declaration of law made in

verdict (supra) makes the said declaration to be an expostulation of law

in rem, therebys, the expostulation of law in rem, as made in verdict

(supra) also makes the thereunders conferred benefits vis-a-vis the

defence personnel concerned, to, prima facie, also entitle the

concerned, thus to at any time seek the granting of the endowments as

made thereunders, and that too, in the fullest complement, as spelt

thereunders, besides irrespective of the bar, if any, of delay and laches.

21. Therefore, the granting of the benefit of the apposite

roundings off, in terms of the verdict (supra) rendered by the Tribunal

concerned, also does not suffer from any illegality and is required to be

upheld.

Further arguments of the learned counsel for the petitioners

and inferences of this Court

22 The learned counsel for the petitioners submit that the

learned Tribunal has failed to harmoniously interpret the relevant

pension regulations, as the same are only applicable to calculate

pension in case of personnel who are invalided out and not to those

who are discharged on completion of terms of engagement or on some

other grounds. The said Regulations do not mandate payment of both

disability element and service element, as both are independent of each

other and are separately granted on completion of respective conditions

necessary to earn the same.

The relevant pension regulations are extracted hereinafter.

Pension Regulations for Army, 1961

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132. The minimum period of qualifying service (without

weightage) actually rendered and required for earning service pension

shall be 15 years."

266. The grant of pensionary awards to personnel of the

Defence Security Corps shall be governed by the same general rules as

are applicable to combatants of the Army, except where they are

inconsistent with the provisions of the regulations in this Chapter."

Pension Regulations for Army, 2008

47. Unless otherwise provided for, the minimum qualifying

service for earning a service pension is 15 years."

173. The grant of pensionary awards to personnel of the

Defence Security Corps shall be governed by the same Regulations as

are applicable to Personnel below Officer Rank of the Army, except

where they are inconsistent with the provisions of the Regulations in

this Chapter."

23. The learned Counsel for the petitioners submit that the

Tribunal while allowing the O.A. (supra) had wrongly interpreted the

provisions (supra) by taking Regulation 179 of the Pension Regulations

for the Army, 1961 in isolation. The said regulation 179 is extracted

hereinafter.

179. An individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or on attaining the age of 50 years (irrespective of their period of engagement), if found suffering from a disability attributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalided out of service and shall be granted disability pension from the date of retirement, if the 12 of 16

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accepted degree of disability is 20 percent or more, and service element if the degree of disability is less than 20 percent. The service pension/service gratuity, if already sanctioned and paid, shall be adjusted against the disability pension/service element, as the case may be.

24. In the said regard, it is relevant to refer to a verdict

rendered by the learned Tribunal concerned in case O.A. No. 324 of

2016 titled as Om Parkash Guleria Vs. Union of India & Ors,

decided on 10.08.2018, whereins a similar question was put forth

before the Tribunal concerned, that 'whether the applicant who was in

receipt of army pension at the time of his re-enrollment in the DSC, is

entitled to the disability pension in the DSC service also?' The learned

Tribunal concerned after considering the relevant regulations observed

that in terms of Regulation 179 of the Pension Regulations for the

Army, 1961, the applicant was entitled to disability pension consisting

of service element as well as disability element. Further, the Tribunal

also observed that the mere fact that the applicant was in receipt of

pension of his first spell of Army service does not disentitle him to

became an able recipient of the component of disability pension thus

for the second spell of service in the DSC. The said verdict was

challenged by the Union of India before the Hon'ble Supreme Court

and the same was upheld by the Apex Court in its verdict rendered in

case titled as Union Of India & Ors. Vs. Om Prakash Guleria,

decided on on 27 August, 2021, to which Civil Appeal No. (Diary No.

9346 of 2021) became assigned. The relevant paragraphs, as occur in

the said verdict are extracted hereinafter.

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"2. Besides the delay of 515 days in filing the appeal, which has not been satisfactorily explained, even on merits, we find no error in the judgment dated 10 August 2021 of the Armed Forces Tribunal. The Tribunal has correctly construed the provisions of the pension regulations and the ultimate conclusion, entitling the respondent to the service element of the disability pension and the benefit of rounding off, does not suffer from any error.

3. The Civil Appeal is, therefore, dismissed on the ground of delay as well as on merits."

25. The learned counsel for the petitioners further submits that

in the DSC service, a minimum service of 15 years was required rather

to earn service pension, whereas, respondent No. 1 had rendered only

10 years and 11 days of service with the DSC whereafters, he was not

granted further extension of service.

26. However, yet the said non rendition of the supra qualifying

period of service in the DSC but would not dis-entitle the present

respondent, to become an able recipient of the component of disability

pension, thus consisting of both service element of DSC service as well

as of the disability element. The reason being that, though the present

respondent for his service in the DSC, thus being construed to be the

apposite qualifying service, thereupon, though he was required to be

completing the requisite period of 15 years, rather for his becoming

entitled for service pension. However, when during the period of his

serving in the DSC, he acquired a disability which has been stated to

arise from rendition of military service or the same being attributable to

or aggravated by military service, therebys the said entailment of a

disability, thus during the spell of the present respondent serving in the

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DSC, whereafter he became debarred to become granted any further

extension in the DSC service, rather when he was required to be

invalided or discharged from service, as aptly done in the instant case.

27. If so, since the above impediment, did well estop the

present respondent, rather to earn the requisite period of qualifying

service, for therebys his becoming entitled for the apposite service

pension. As such, when his service neither became extended nor when

he become discharged on ground of some proven mis-conduct.

Contrarily, when merely on account of disability (supra), as became

entailed upon him, that too, evidently during the phase of his rendering

military service, that he became precluded to complete the supra

qualifying period, rather for his therebys earning service pension, for

his rendering service in the DSC. Resultantly, the inability of the

present respondent to complete the qualifying period of service in the

DSC, thus cannot stand in the way of his becoming endowed the benefit

of service pension, hence even for the term of 10 years and 11 days of

service rendered in the DSC, reiteratedly merely on the premise that he

had not completed the apposite 15 years of qualifying service in the

DSC.

28. Therefore, in terms of the expostulations of law (supra)

rendered by the Hon'ble Apex Court in case titled as Union Of India vs

Om Prakash Guleria, respondent No. 1 was entitled for service

element of DSC service besides of the disability element thereof, as

aptly done by the Tribunal concerned.

Final Order of this Court.

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29. In aftermath, this Court finds no merit in the writ petition

and with observations above, the same is dismissed.

30. The impugned order, as passed by the learned Tribunal

concerned, is maintained and affirmed.

31. Disposed of alongwith all pending application(s), if any.

(SURESHWAR THAKUR) JUDGE

(SUDEEPTI SHARMA) 14.01.2025 JUDGE dinesh Whether speaking/reasoned : Yes/No Whether reportable : Yes/No

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