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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4949  OF 2013 (arising out of SLP(C)No. 6940 of 2010)

DHARAMVIR SINGH        …. APPELLANT

VERSUS

UNION OF INDIA & ORS.               ….RESPONDENTS

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

Leave granted.    

2. This appeal has been preferred by the appellant against  

the judgment dated 31st  July, 2009 in LPA No.26 of 2004  

passed by the Division Bench of the High Court of Himachanl  

Pradesh, Shimla whereby the Division Bench allowed the  

appeal preferred by the Union of India and set aside the  

judgment dated 20th  May, 2004 passed by the learned Single  

Judge in Civil Writ Petition No.660 of 2004.

3. The questions involved in this case are:

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(i) Whether a member of Armed Forces can be presumed  

to have been in sound physical and mental condition  

upon entering service in absence of  disabilities or  

disease noted or recorded at the time of entrance.

(ii) Whether the appellant is entitled for disability  

pension.  

4. The factual matrix of the case is as follows:

The appellant was enrolled as Sepoy in the Corps of  

Signals of the Indian Army on 15th  June, 1985. Having  

rendered about 9 years of service in Indian Army he was  

boarded out of the service with effect from Ist April, 1994  

on the ground of 20% permanent disability as he was found  

suffering from “Genrealised seizure (Epilepsy)".   The  

Medical Board of Army opined that the "disability is not  

related to military service".   On the basis of disability  

report, no disability pension was granted to him and when  

the appellant preferred representation the respondents  

rejected such prayer by an order dated 12th  December, 1995  

on the ground that the disability suffered by the appellant  

was neither attributable to nor aggravated by the military  

service.

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5. The  appellant approached the High Court  of Himachal  

Pradesh in Civil Writ Petition No.660 of 2004 seeking a  

direction to respondents to grant disability pension with  

effect from 1st April, 1994. Learned Single Judge by  

judgment dated 20th  May, 2004 on observing that there was  

nothing on record to show that the appellant was suffering  

from any disease at the time of his initial recruitment in  

the Indian Army held that the disease would be deemed to be  

attributable to or aggravated by the Army services.  

Therefore, in terms of Regulation 173 of Pension  

Regulations for the Army, 1961 the appellant is eligible  

for disability pension.   Learned Single Judge allowed the  

writ petition and directed the respondents to grant  

disability pension to the appellant as per rules with  

effect from the date he was invalidated out of service and  

to pay the entire arrears of pension within three months  

else they shall be liable to pay interest on such arrears  

at the rate of 9% per annum.

6. The Union of India challenged the decision of the  

learned Single Judge before the Division Bench of the High  

Court of Himachal Pradesh in LPA No.26 of 2004. On behalf

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of the Union of India it was contended that  

disease“generalized seizure" was constitutional in nature  

and the same has not been found by the Re­Survey Medical  

Board attributable or aggravated by military service. It  

was also contended that the learned Single Judge had not  

taken into consideration the relevant law while allowing  

the petition.   The Division Bench referring to a judgment  

of this Court in  Union of India and others vs. Keshar  

Singh, (2007) 12 SCC 675, and Rule 7 as noticed in the said  

judgment held as follows and set aside the order passed by  

the learned Single Judge:  

“The respondent was discharged from the  military after being placed in Low Medical  Category (CEE). The Re­survey Medical Board  had opined the disability of the respondent  neither attributable nor aggravated military  service. He was found suffering from  ‘generalised seizure’. The learned Single  Judge has purportedly referred to paragraph  7(b) of Appendix­IIas referred to in  Regulation 48, 173 and 185 while coming to  the conclusion that the respondent was not  suffering from the disease on account of  which he was invalidated out of the service  at the time of his initial recruitment in  the Indian Army. However, the learned Single  Judge has omitted to take note of paragraph  7(c) of Appendix­II as referred to in  Regulation 48, 173 and 185 of the Pension  Regulations for the Army, 1961(Part­I).

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The legal  position  raised  in  this  Letters  Patent Appeal is no more res integra in view  of law laid down by their Lordships of the  Hon'ble Supreme Court in Union of India &  Ors. Versus Keshar Singh, 2007 (4) SLR 100.  Their Lordships of the Hon'ble Supreme Court  were also seized of the matter wherein the  Medical Board had given a clear opinion that  the illness was not attributable to military  service. In this case also the soldier has  developed schizophrenia. Their Lordships of  the Hon'ble Supreme Court have held as  under:

“In support of the appeal learned  Additional Solicitor General submitted  that both learned Single Judge and the  Division Bench have lost sight of para  7(c). Both 7(b) and 7(c) have to be  read together. They read as follows:

“7(b) A disease which has led to an  individual's discharge or death will  ordinarily be deemed to have arisen in  service if no note of it was made at  the time of service. However, if  medical opinion holds for reasons to be  stated, that the disease could not have  been detected on medical examination  prior to acceptance for service the  disease will not be deemed to have  arisen during service.

7(c) If a disease is accepted 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.”

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A  bare  reading  of  the  aforesaid provision  makes it clear that ordinarily if a disease  has led to the discharge of individual it  shall ordinarily be deemed to have arisen in  service if no note of it was made at the  time of individual’s acceptance for military  service. An exception, however, is carvd  out, i.e. if medical opinion holds for  reasons to be stated that the disease could  not have been detected by Medical  Examination Board prior to acceptance for  service, the disease would not be deemed to  have arisen during service. Similarly,  clause (c) of Rule 7 makes the position  clear that if a disease is accepted as  having arisen in service it must also   be  established that the condition of military  service determined or contributed to the  onset of the disease and that the conditions  are due to the circumstances of duty in  military service. There is no material  placed by the respondent in this regard.

In view of the legal position referred to  above and the fact that the Medical Board's  opinion was clearly to the effect that the  illness suffered by the respondent was not  attributable to the military service, both  the learned Single  Judge  and  the  Division  Bench were not justified in their respective  conclusion.  The respondent is not entitled  to disability pension. However, on the facts  and circumstances of the case, payment  already made to the respondent by way of  disability pension shall not be recovered  from him.  The appeal is allowed but in the  circumstances without any order as to  costs.”

The disease developed by the petitioner i.e.  ‘generalised seizore' is constitutional in

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nature and the Re­survey Medical Board had  specifically opined, as noticed above,  that  the disability was neither attributable nor  aggravated by the military service. The  opinion of the Re­survey Medical Board has  to be given primacy.

Accordingly, the learned Single Judge has  erred in law by allowing the writ petition  only on the basis of plain reading of  paragraph 7(b) of Appendix­IIas referred to  in Regulation 48, 173 and 185 of the Pension  Regulation for the Army, 1961 (Part­I). He  has omitted to see clauses 7(c) of Appendix­ IIof the Pension Regulations for the Army,  1961 (Pat­I).   

Consequently, in view of the observation  made hereinabove, the Letters Patent Appeal  is allowed. The judgment of learned Single  Judge is set aside. No costs.”

7. Learned counsel for the appellant contended that the  

Entitlement Rules for Casualty Pensionary Awards, 1982 have  

been made effective w.e.f. Ist January, 1982 and the set of  

rules is required to be read in conjunction with the Guide  

to Medical Officers (Military Pension), 1980. Referring to  

Rule 423(c) it was submitted that the cause of disability  

or death resulting from a disease will be regarded as  

attributable to  service  when it  is established that  the  

disease arose during service and the conditions and  

circumstances of duty in the Armed Forces determined and

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contributed to the onset of the disease.  A disease which  

has led to an individual's discharge or death will  

ordinarily be deemed to have arisen in service if no note  

of it was made at the time of individual's acceptance for  

service in the Armed Forces. However, if medical opinion  

holds, for reasons to be stated that the disease could not  

have been detected on medical examination prior to  

acceptance for service, the disease will not be deemed to  

have arisen during service.  

8. Reliance was placed on Rules 5,6,9 and 14 to show that  

the appellant was entitled to the benefit and the  

respondents ought to have given the same in consideration  

of the said rules.  It was further contended that it will  

be for the service authorities to make all practical  

investigation to establish the alleged fact, calling upon  

the claimant, if necessary to assist and to show that the  

employee was suffering from disability or disease at the  

time of appointment and such disease is not attributable to  

or aggravated by service.

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9. Per contra, according to the respondents, the question  

is  no more  res integra  having settled by  this Court in  

Keshar Singh (supra).

10. Learned counsel appearing on behalf of the Union of  

India submitted that in each case when disability pension  

is sought for and claim is made it must be affirmatively  

established as a matter of fact as to whether the disease  

is due to military service or that it was aggravated by  

military service which contributed to invalidation from  

service. According to him, in the present case, the Medical  

Board has clearly opined that the invalidating disease‘left  

partial motor seizure with secondary generalisation' is not  

related to military service.   The Medical Board having  

examined the appellant and having taken into consideration  

all evidence before it once submitted its opinion, it is  

binding on the parties.  It was contended that the opinion  

of the Board has been given by the medical experts approved  

by a superior Medical Officer, Brigadier. Unless the  

primary condition in Regulation 173 is satisfied the  

appellant cannot derive advantage. He also placed reliance  

on Rules 6,8 14(c) and 17 of “Entitlement Rules for

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Casualty Pensionary Awards, 1982” and referred to decisions  

of this Court to suggest that the appellant is not entitled  

to disability pension in view of the opinion of the Medical  

Board comprised of experts in the field.

11. In the impugned judgment dated 31st  July, 2009, the  

Division Bench of the High Court placed reliance on Rules  

7(a), 7(b) and  7(c) which was noticed by  this Court in  

Keshar Singh (supra).  In    Keshar Singh(supra), a judgment  

of the Division Bench of the Allahabad High Court granting  

disability pension was challenged before this Court.   In  

the said matter paragraph 7(b) of Appendix­II referred to  

in Regulations 48, 173 and 185 of the 'Pension Regulations  

for the Army, 1961'. In support of the appeal before this  

Court in  Keshar Singh(supra)  learned Additional Solicitor  

General contended that the Division Bench of the High Court  

has lost sight of Para 7(c) and both the paragraphs 7(b)  

and 7(c) have to be read together. The relevant portion of  

the judgment of this Court in  Keshar Singh (supra)  is  

quoted hereunder:

“2. Background facts giving rise to the  present dispute is as follows:

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The respondent was enrolled as Rifleman  on 15.11.1976 and was discharged from Army  on 18.10.1986. It was found that he was  suffering from Schizophrenia and the Medical  Board's report indicated his non­suitability  for continuance in army. Medical Board  opined that the disability did not exist  before entering service and it was not  connected with service. An appeal was  preferred before prescribed appellate  authority which was dismissed on 16.4.1989.  Respondent filed a writ petition which was  allowed by learned Single Judge and as noted  above by the impugned judgment the special  appeal was dismissed. Both learned Single  Judge and the Division Bench held that it  was not mentioned at the time of entering to  army service that the respondent suffered  from Schizophrenia and therefore it was  attributable to army service. Both learned  Single Judge and the Division Bench referred  to para 7(b) of the Appendix II referred to  in Regulations 48, 173 and 185 of the  Pension Regulations,  1961  to  hold  that  if  any disease has led to the individuals  discharge it shall be ordinarily deemed to  have arisen in the service if no note of it  was made at the time of individual's  acceptance for military service.  Accordingly, it was held that the respondent  was entitled to disability pension.

3. In support of the appeal learned  Additional Solicitor General submitted that  both learned Single Judge and the Division  Bench have lost sight of para 7(c). Both  7(b) and 7(c) have to be read together. They  read as follows"

“7 (b) A disease which has led to an  individual's discharge or death will  ordinarily be deemed to have arisen in  service if no note of it was made at the  time of the individual's acceptance for  military service. However, if medical  opinion holds for reasons to be stated,  that the disease could not have been  detected on medical examination prior to

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acceptance for service the disease will  not be deemed to have arisen during  service. 7(c) If a disease is accepted 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.””

12. In their counter­affidavit filed by the respondents  

before this Court in the present case, it is accepted that  

old Rules 7(a), (b) and 7(c) of the erstwhile  

Rules/Regulations were taken into consideration by this  

Court in Keshar Singh (supra) which has  since been revised  

by Rule 14 of revised ‘Entitlement Rules for Casualty  

Pensionary Awards, 1982'. For the said reason, we are not  

relying on or referring to Rule 7(b) and 7(c) of the  

erstwhile Rules. According to the respondents, Rule 14(a),  

14(b), 14(c) and 14(d) of the "Entitlement Rules for  

Casualty Pensionary Awards to Armed Forces Personnel, 1982"  

as amended vide Government of India, Ministry of Defence  

letter No.1(1)/81/D(Pen­C) dated 20th June, 1996 needs to be  

taken into consideration along with the other provisions of  

Entitlement Rules, 1982.

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13. Per contra, according to the learned counsel for the  

appellant, the "Entitlement Rules for Casualty Pensionary  

Awards, 1982" contained in Appendix­II of the Pension  

Regulations for the Army, 1961 is applicable and not the  

Rules referred to and quoted in the counter­affidavit by  

the respondents.

14. There being difference in the two sets of the  

Entitlement Rules for Casualty Pensionary Awards referred  

to by the counsel for the respondents and the appellant, on  

the direction of the Court photostat copy of the 'Pension  

Regulations for the Army, 1961(Part­I)' along with Appendix  

(ii), (referred  to in Regulations 1948,  1973 and 1985),  

'Guide to Medical Officers (Military Pensions) 2002'  

published by the Ministry of Defence, Government of India,  

New Delhi has been produced. We also called for the Pension  

Regulations for the Army, 1961 from Library which contains  

Appendix­II­ 'Entitlement Rules for Casualty Pensionary  

Awards, 1982' for our perusal, and we find that it is  

similar to the photostat copy of the Pension Regulations  

for  the  Army, 1961(Part­I) published by  the  Ministry of  

Defence, Government of India, New Delhi. The respondents in

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their counter­affidavit has not made clear as to when the  

Government of India, Ministry of Defence letter  

No.1(1)/81/D(Pen­C) dated 20th  June, 1996 was notified in  

Gazette amending the Rules and why no such amendment has  

been shown in the published Entitlement Rules for Casualty  

Pensionary Awards, 1982. In their counter­affidavit they  

have not mentioned that the rules extracted in their  

counter­affidavit is true copy of its original.  

15. For the said reason, we will rely on the "Pension  

Regulations for the Army, 1961" and Appendix­II­  

'Entitlement Rules for Casualty Pensionary Awards, 1982'  

published by the Government of India, we will also discuss  

the Rules 14(a), 14(b), 14  (c) and  14(d)  as quoted and  

relied on by the respondents.   

16. Regulation 173 of Pension Regulations for the Army,  

1961 relates to the primary conditions for the grant of  

disability pension and reads as follows:

“Regulation 173. Unless otherwise  specifically provided a disability pension  consisting of service element and disability  element may be granted to an individual who  is invalidated out of service on account of  a disability which is attributable to or

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aggravated by military service in non­battle  casualty and is assessed 20 per cent or over

The question whether a disability is  attributable to or aggravated by military  service shall be determined under the rule  in Appendix II.”

17. From a bare perusal of the Regulation aforesaid, it is  

clear that disability pension in normal course is to be  

granted to an individual (i) who is invalidated out of  

service on account of a disability which is attributable to  

or aggravated by military service and (ii) who is assessed  

at 20% or over disability unless otherwise it is  

specifically provided.

18. A disability is 'attributable to or aggravated by  

military service' to be determined under the “Entitlement  

Rules for Casualty Pensionary Awards, 1982', as shown in  

Appendix­II. Rule 5 relates to approach to the Entitlement  

Rules for Casualty Pensionary Awards, 1982 based on  

presumption as shown hereunder:

“Rule5  . The approach to the  question of entitlement to casualty  pensionary awards and evaluation of  disabilities shall be based on the  following presumptions:

PRIOR TO AND DURING SERVICE

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(a)member is presumed to have been in sound  physical and mental condition upon entering  except as to physical disabilities noted or  recorded at the time of entrance.

(b)In the event of his subsequently being  discharged from service on medical grounds  any deterioration in his health which has  taken place is due to service.”

From Rule 5 we find that a general presumption is to be  

drawn that a member is presumed to have been in sound  

physical and mental condition upon entering service except  

as to physical disabilities noted or recorded at the time  

of entrance.   If a person is discharged from service on  

medical ground for deterioration in his health it is to be  

presumed that the deterioration  in the health has taken  

place due to service.  

19. “Onus of proof" is not on claimant as apparent from  

Rule 9, which reads as follows:

“Rule 9. ONUS OF PROOF­ The claimant  shall not be called upon to prove  the conditions of entitlements.  He/she will receive the benefit of  any reasonable doubt. This benefit  will be given more liberally to the  claimants in field/afloat service  cases.”

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From a bare perusal of Rule 9 it is clear that a  

member, who is declared disabled from service, is not  

required to prove his entitlement of pension and such  

pensionary benefits to be given more liberally to the  

claimants.  

20. With respect to disability due to diseases Rule 14  

shall be applicable which as per the Government of India  

publication reads as follows:

“Rule 14. DISEASE­  In respect of  diseases, the following rule will be  observed:­

(a)Cases in which it is established  that conditions of Military Service  did not determine or contribute to  the onset of the disease but  influenced the subsequent courses of  the disease will fall for acceptance  on the basis of aggravation.

(b)A disease which has led to an  individual's discharge or death will  ordinarily be deemed to have arisen  in service, if no note of it was  made at the time of the individual's  acceptance for military service.  However, if medical opinion holds,  for reasons to be stated, that the  disease could not have been detected  on medical examination prior to  acceptance for service, the disease  will not be deemed to have arisen  during service.

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(c)If a disease is accepted 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.”

As per clause (b) of Rule 14 a disease which has led to  

an individual's discharge or death will ordinarily be  

deemed to have arisen in service, if no note of it was made  

at the time  of the individual's  acceptance for military  

service.  

As per clause(c) of Rule 14 if a disease is accepted 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.

21. If we notice Rule 14(a), 14(b), 14(c) and 14(d) as  

quoted by the respondents in their counter­affidavit, it  

makes no much difference for determination of issue.  

According to the respondents, Rule 14(a), 14(b), 14(c) and

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14(d) as amended vide Government of India, Ministry of  

Defence letter No.1(1)/81/D(Pen­C) dated 20th  June, 1996  

reads as follows:

“Rule 14(a)­ For acceptance of a disease as  attributable to military service, the  following two conditions must be satisfied  simultaneously:

(i)That the disease has arisen during the period  of military service, and

(ii)That the disease has been caused by the  conditions of employment in military service.

Rule 14(b)­ If medical authority holds, for  reasons to be stated, that the disease  although  present  at the time  of enrolment  could not have been detected on medical  examination prior to acceptance for service,  the disease, will not be deemed to have  arisen during service. In case where it is  established that the military service did  not contribute to the onset or adversely  affect the course disease, entitlement for  casualty pensionary award will not be  conceded even if the disease has arisen  during service.

Rule 14(c)­ Cases in which it is established  that conditions of military service did not  determine or contribute to the onset of the  disease but, influenced the subsequent  course of the disease, will fall for  acceptance on the basis of aggravation.

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Rule 14(d)­  In case of congenital,  hereditary, degenerative and constitutional  diseases which are detected after the  individual has joined service, entitlement  to disability pension shall not  be conceded  unless  it  is  clearly  established  that  the  course of such disease was adversely  affected due to factors related to  conditions of military services.”

22. As per Rule 14(a) we notice that for acceptance of a  

disease as attributable to military service, conditions are  

to be satisfied that the disease has been arisen during the  

military service, and caused by the conditions of  

employment in military service which is  similar  to Rule  

14(c) of the printed version as relied on by the appellant.  

Rule 14(b) cited by the respondents is also similar to  

published Rule 14.

Rule 14(c) cited by the respondents relates to the  

cases in which it is established that conditions of  

military service did not determine or contribute to  the  

onset of the disease but, influenced the subsequent course  

of the disease, will fall for acceptance on the basis of  

aggravation.  

Rule 14(d) cited by the respondents relates to diseases  

which are detected after the individual has joined the

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service, which entails disability pension but it is to be  

established that the course of such disease was adversely  

affected due to factors related to conditions of military  

service.  

23. If the amended version of Rule 14 as cited by the  

respondents is accepted to be the Rule applicable in the  

present case, even then the onus of proof shall lie on the  

employer­respondents in terms of Rule 9 and not the  

claimant and in case of any reasonable doubt the benefit  

will go more liberally to the claimants.  

24. The Rules to be followed by Medical Board in disposal  

of special cases have been shown under Chapter VIII of  

the“General Rules of Guide to Medical Officers (Military  

Pensions) 2002. Rule 423 deals with "Attributability   to  

service” relevant of which reads as follows:

“423(a)For the purpose of determining  whether the cause of a disability or death  resulting from disease is or is not  attributable to service, it is immaterial  whether the cause giving rise to the  disability or death occurred in an area  declared to be a FieldService/Active Service  area or under normal peace conditions. It is  however, essential to establish whether the  disability or death bore a casual connection  with the service conditions. All evidence

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both direct and circumstantial will be taken  into account and benefit of reasonable  doubt, if any, will be given to the  individual. The evidence to be accepted as  reasonable  doubt  for  the  purpose  of these  instructions should be of a degree of  cogency, which though not reaching  certainty, nevertheless carries a high  degree of probability. In this connection,  it will be remembered that proof beyond  reasonable doubt does not mean proof beyond  a shadow of doubt. If the evidence is so  strong against an individual as to leave  only a remote possibility in his/her favour,  which can be dismissed with the sentence  "of course it is possible but not in the  least  probable" the case  is proved  beyond  reasonable doubt. If on the other hand, the  evidence be so evenly balanced as to render  impracticable a determinate conclusion one  way or the other, then the case would be one  in which the benefit of the doubt could be  given more liberally to the individual, in  cases occurring in Field Service/Active  Service areas.

(c).  The cause of a disability or death  resulting from a disease will be regarded as  attributable to Service when it is  established that the disease arose during  Service and the conditions and circumstances  of duty in the Armed Forces determined and  contributed to the onset of the disease.  Cases, in which it is established that  Service conditions did not determine or  contribute to the onset of the disease but  influenced the subsequent course of the  disease, will be regarded as aggravated by  the service. A disease which has led to an  individual's discharge or death will  ordinarily be deemed to have arisen in  Service if no note of it was made at the  time of the individual's acceptance for  Service in the Armed Forces. However, if  medical opinion holds, for reasons tobe  stated that the disease could not have been

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detected on medical examination prior to  acceptance for service, the disease will not  be deemed to have arisen during service.

(d).The question, whether a disability or  death resulting from disease is attributable  to or aggravated by service or not, will be  decided as regards its medical aspects by a  Medical Board or by the medical officer who  signs the Death Certificate. The Medical  Board/Medical Officer will specify reasons  for their/his  opinion.  The  opinion  of  the  Medical Board/Medical Officers,in so far as  it relates to the actual cause of the  disability or death and the circumstances in  which it originated will be regarded as  final.  The  question whether the cause  and  the attendant circumstances can be accepted  as attributable to/aggravated by service for  the purpose of pensionary benefits will,  however, be decided by the pension  sanctioning authority.”

25. Therefore, as per Rule 423 following procedures to be  

followed by the Medical Board:   

(i) Evidence both direct and circumstantial to be taken  

into account by the Board and benefit of reasonable  

doubt, if any would go to the individual;  

(ii) a disease which has led to an individual's  

discharge or death will ordinarily be  treated to have  

been arisen in service, if no note of it was made at  

the time of individual's acceptance for service in  

Armed Forces.

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(iii) If the medical opinion holds that the disease  

could not have been  detected on  medical  examination  

prior to acceptance for service and the disease will  

not be deemed to have been arisen during military  

service the Board is required to state the reason for  

the same.  

26. ‘Chapter II’of the Guide to Medical Officers (Military  

Pensions) 2002 relates to “Entitlement : General  

Principles".  In the opening paragraph 1, it is made clear  

that the Medical Board should examine cases in the light of  

the etiology of the particular disease and after  

considering all the relevant particulars of a case, record  

their conclusions with reasons in support, in clear terms  

and in a language which the Pension Sanctioning Authority  

would be able to appreciate fully in determining the  

question of entitlement according to the rules. Medical  

officers should comment on the evidence both for and  

against the concession of entitlement; the aforesaid  

paragraph reads as follows:

“1. Although the certificate of a properly  constituted medical authority vis­a­vis the  invaliding disability, or death, forms the  basis of compensation payable by the

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government, the decision to admit or refuse  entitlement is not solely a matter which can  be determined finally by the medical  authorities alone. It may require also the  consideration of other circumstances e.g.  service conditions, pre­and post­service  history, verification of wound or injury,  corroboration of statements, collecting and  weighing the value of evidence, and in some  instances, matters of military law and  discipline. Accordingly, Medical Boards  should examine cases in the light of the  etiology of the particular disease and after  considering all the relevant particulars of  a case, record their conclusions with  reasons in support, in clear terms and in a  language which the Pension Sanctioning  Authority, a lay body, would be able to  appreciate fully in determining the question  of  entitlement  according  to the rules.  In  expressing their opinion Medical Officers  should comment on the evidence both for and  against the concession of entitlement. In  this connection, it is as well to remember  that a bare medical opinion without reasons  in support will be of no value to the  Pension Sanctioning Authority.”

Paragraph 6 suggests the procedure to be followed by  

service authorities if there is no note, or adequate note,  

in the service records on which the claim is based.  

Paragraph 7 talks of evidentiary value attached to the  

record of a member's condition at the commencement of  

service, .e.g. pre­enrolment history of an injury, or  

disease like epilepsy, mental disorder etc. Further,

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guidelines have been laid down at paragraphs 8 and 9, as  

quoted below:

7. Evidentiary value is attached to the  record of a member's condition at the  commencement of service, and such record  has,  therefore, to  be  accepted  unless  any  different conclusion has been reached due to  the inaccuracy of the record in a particular  case or otherwise. Accordingly, if the  disease leading to member's invalidation out  of service or death while in service, was  not noted in a medical report at the  commencement of service, the inference would  be that the disease arose during the period  of member's military service. It may be that  the inaccuracy or incompleteness of service  record on entry in service was due to a non­ disclosure of the essential facts by the  member, e.g., pre­enrolment history of an  injury or disease like epilepsy, mental  disorder etc. It may also be that owing to  latency or obscurity of the symptoms, a  disability escaped detection on enrolment.  Such lack of recognition may affect the  medical categorization of the member on  enrolment and/or cause him to perform duties  harmful to his condition. Again, there may  occasionally be direct evidence of the  contraction of a disability, otherwise than  by service. In all such cases, though the  disease cannot  be  considered  to have  been  caused by service, the question of  aggravation by subsequent service conditions  will need examination.

The following are some of the diseases  which ordinarily escape detection on  enrolment:­

(a)Certain congenital abnormalities  which are latent and only discoverable  on full investigations, e.g. CONGENITAL  DEFECT OF SPINE, SPINA BIFIDA,  SACRALIZATION,

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(b)Certain familial and hereditary  diseases, e.g., HAEMOPHILIA, CONGENTIAL  SYPHILIS, HAEMOGIOBINOPATHY.

(C)Certain diseases of the heart and  blood vessels, e.g., CORONORY  ATHEROSCLEROSIS, RHEUMATIC FEVER.

(d)Diseases which may be undetectable  by physical examination on enrolment,  unless adequate history is given at the  time by the member, e.g., GASTRIC AND  DUODENAL ULCERS, EPILEPSY, MENTAL  DISORDERS, HIV INFECTIONS.

(e) Relapsing forms of mental disorders  which have intervals of normality.

(f) Diseases which have periodic  attacks e.g., BRONCHIAL ASTHMA,  EPILEPSY, CSOM ETC.

8. The question whether the invalidation  or death of a member has resulted from  service conditions, has to be judged in the  light of the record of the member's  condition on enrolment as noted in service  documents and of all other available  evidence both direct and indirect.

In addition to any documentary evidence  relative to the member's condition to  entering the service and during service, the  member must carefully and closely questioned  on the circumstances which led to the advent  of his disease, the duration, the family  history, his pre­service history, etc. so  that all evidence in support or against the  claim is elucidated. Presidents of Medical  Boards should make this their personal  responsibility and ensure that opinions on  attributability, aggravation or otherwise  are supported by cogent reasons; the  approving authority should also be satisfied  that this question has been death with in  such a way as to leave no reasonable doubt.

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9. On the question whether any persisting  deterioration has occurred, it is to be  remembered that invalidation from service  does not necessarily imply that the member's  health has deteriorated during service. The  disability may have been discovered soon  after joining and the member discharged in  his own interest in order to prevent  deterioration. In such cases, there may even  have been a temporary worsening during  service, but if the treatment given before  discharge  was  on  grounds  of expediency  to  prevent a recurrence, no lasting damage was  inflicted by service and there would be no  ground for admitting entitlement. Again a  member may have been invalided from service  because he is found so weak mentally that it  is impossible to make him an efficient  soldier. This would not mean that his  condition has worsened during service, but  only that it is worse than was realized on  enrolment in the army.  To sum up, in each  case the question whether any persisting  deterioration on the available evidence  which will vary according to the type of the  disability, the consensus of medical opinion  relating to the particular condition and the  clinical history.”

27. Learned counsel for the respondent­Union of India  

relied on decisions of this Court in Om Prakash Singh vs.  

Union of India and others,(2010) 12 SCC 667;(2009) 9 SCC  

140; (2010) 11 SCC 220, etc.  and submitted that this Court  

has already considered the effect of Rule 5, 14a and 14(a)  

and 14(b) and held that the same cannot be read in  

isolation. After perusal of the aforesaid decision we find

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that Rule 14(a), 14(b) and 14(c) as noticed and quoted  

therein are similar to Rule 14 as published by the  

Government of India and not Rule 14 as quoted by the  

respondents in their counter­affidavit. Further, we find  

that the question as raised in the present case that in  

case no note of disease or disability was made at the time  

of individual's acceptance for military service, the  

Medical Board is required to give reasons in writing for  

coming to the finding that the disease could not have been  

detected on a medical examination prior to the acceptance  

for service was neither raised nor answered by this Court  

in those cases. Those were the cases which were decided on  

the facts of the individual case based on the opinion of  

the Medical Board.

28. 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 non­battle casualty and is assessed

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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 Appendix­II (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 non­entitlement is 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

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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 Chapter­II of the  

"Guide to Medical (Military Pension), 2002 –  

"Entitledment : General Principles", including  

paragraph 7,8 and 9 as referred to above.

29. We, accordingly, answer both the questions in  

affirmative in favour of the appellant and against the  

respondents.

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30. In the present case it is undisputed that no note of  

any disease has been recorded at the time of appellant's  

acceptance for military service. The respondents have  

failed to bring on record any document to suggest that the  

appellant was under treatment for such a disease or by  

hereditary he is suffering from such disease. In absence of  

any note in the service record at the time of acceptance of  

joining of appellant it was incumbent on the part of the  

Medical Board to call for records and look into the same  

before coming to an opinion that the disease could not have  

been detected on medical examination prior to the  

acceptance for military service, but nothing is on the  

record to suggest that any such record was called for by  

the Medical Board or looked into it and no reasons have  

been recorded in writing to come to the conclusion that the  

disability is not due to military service.  In fact, non­

application of mind of Medical Board is apparent from  

Clause (d) of paragraph 2 of the opinion of the Medical  

Board, which is as follows:

____________________________________________________

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“  (d)  In the case of a disability under C  the board should state

         what exactly in their opinion is the     cause thereof.  YES

Disability is not related to  mil service”

________________________________________________ ________

31. Paragraph 1 of 'Chapter II' – “Entitlement : General  

Principles” specifically stipulates that certificate of a  

constituted medical authority vis­à­vis invalidating  

disability, or death, forms the basis of compensation  

payable by the Government, the decision to admit or refuse  

entitlement is not solely a matter which can be determined  

finally by the medical authorities alone. It may require  

also the consideration of other circumstances e.g. service  

conditions, pre­and post­service history, verification of  

wound or injury, corroboration of statements, collecting  

and weighing the value of evidence, and in some instances,  

matters of military law and dispute. For the said reasons  

the Medical Board was required to examine the cases in the  

light of etiology of the particular disease and after  

considering all the relevant particulars of a case, it was  

required to record its conclusion with reasons in support,

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in clear terms and language which the Pension Sanctioning  

Authority would be able to appreciate.

32. In spite of the aforesaid provisions, the Pension  

Sanctioning Authority failed to notice that the Medical  

Board had not given any reason in support of its opinion,  

particularly when there is no note of such disease or  

disability available in the service record of the appellant  

at the time  of acceptance for military service.  Without  

going through the aforesaid facts the Pension Sanctioning  

Authority mechanically passed the impugned order of  

rejection based on the report of the Medical Board. As per  

Rules 5 and 9 of 'Entitlement Rules for Casualty Pensionary  

Awards, 1982', the appellant is entitled for presumption  

and benefit of presumption in his favour.   In absence of  

any evidence on record to show that the appellant was  

suffering from "Genrealised seizure (Epilepsy)” at the time  

of acceptance of his service, it will be presumed that the  

appellant was in sound physical and mental condition at the  

time of entering the service and deterioration in his  

health has taken place due to service.

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33. As per Rule 423(a) of General Rules for the purpose of  

determining a question whether the cause of a disability or  

death resulting from disease is or is not attributable to  

service, it is immaterial whether the cause giving rise to  

the disability or death occurred in an area declared to be  

a field service/active service area or under normal peace  

conditions.   "Classification   of diseases” have been  

prescribed at Chapter IV of Annexure I; under paragraph 4  

post traumatic epilepsy and other mental changes resulting  

from head injuries have been shown as one of the diseases  

affected by training, marching, prolonged standing etc.  

Therefore, the presumption would be that the disability of  

the  appellant bore a casual  connection with  the  service  

conditions.

34. In view of the finding as recorded above, we have no  

option but to set aside the impugned order passed by the  

Division Bench dated 31st  July, 2009 in LPA No.26 of 2004  

and uphold the decision of the learned Single Judge dated  

20th  May, 2004. The impugned order is set aside and  

accordingly the appeal is allowed. The respondents are  

directed to pay the appellant the benefit in terms of the

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order passed by the learned Single Judge in accordance with  

law within three months if not yet paid, else they shall be  

liable to pay interest as per order passed by the learned  

Single Judge. No costs.

     ..........………………………………………………..J.    (A.K. PATNAIK)

…........…………………………………………….J.              (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI, JULY 2, 2013.