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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 5605  OF 2010   

SUKHVINDER SINGH                                .…..APPELLANT

Versus

UNION OF INDIA & ORS.                                     …..RESPONDENT

O R D E R

1 This Appeal assails the Order passed by the Division Bench of  

the High Court of Delhi at New Delhi dated March 30, 2006 whereby  

WP(C) No.3923 of 2005 came to be dismissed.   The prayer in the Writ  

Petition,  inter  alia,  was  for  the  issuance  of  a  writ  directing  the  

respondents to release (a) disability pension in favour of the Petitioner  

if disability is twenty per cent and above, (b) the service element of  

pension in favour of the Petitioner and (c) to re-enrol the Petitioner if  

his disability is found less than twenty per cent.

2 Succinctly  stated,  the  facts  germane  for  deciding  the  present  

Appeal are that consequent to the Primary Medical Examination for  

Recruitment having been conducted  vis-a-vis the Appellant/Petitioner  

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on 22nd December,  2000,  he was enrolled  in  the  Indian Army as  a  

Combatant Soldier on 15th March, 2001.     It bears noting that Rule 5  

of  the  Entitlement  Rules  for  Casualty  Pensionary  Awards,  1982,  

provides  that  (a)  “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 (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.”   Even though this provision postulates a ‘casualty’ we find  

no  logical  reason  not  to  extrapolate  it  to  even  simple  injuries  or  

disabilities.     Therefore, it would be fair to assume that on the date of  

his  recruitment  the  Appellant  was  in  a  sound  health;  no  hearing  

impairment  had been detected at  that  stage,  no adverse noting had  

been made in the Medical Entry Form viz. AFMSF-2 for existence of  

any disease at the time of enrolment.    This was after the Appellant  

had  been  examined  physically  and  medically  as  contemplated  by  

Regulation 383 which reads thus:-  

“383.Responsibility  of  Recruiting  and  Medical  Officers Recruiting  officers  are  responsible  for  the  measurements, apparent age, intelligence and mental suitability  of  the  candidates  selected  by  him.    Medical  Officers  are  responsible  for  the health,  physical  fitness  for  service,  likely  extent of development and identification marks.”     

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3 We  are  not  a  little  surprised  that  although  the  Rules  or  

Regulations (Chapter VII of the Regulations for the Medical Services  

of  the  Armed Forces,  1983)  specifically  postulate  the  formation  of  

Invalidation  Medical  Boards,  they  do  not  set  out  the  medical  

parameters justifying or requiring  serviceman/officer to be removed  

from service.   This feature renders decisions taken by such Boards  

pregnable to assaults on the grounds of capriciousness or arbitrariness,  

and this is  especially so where the extent  of  the disability is below  

twenty per  cent.    Can the Authorities  be permitted to  portray that  

whilst  a  person  has  so  minor  a  disability  as  to  disentitle  him  for  

compensation,  yet  suffers  from a  disability  that  is  major  or  serious  

enough to snatch away his employment?    This is especially so since  

Regulation 132 ordains that the “minimum period of qualifying service  

(without weightage) actually rendered and required for earning service  

pension shall be 15 years.”  Moreover, in the case in hand, it appears  

that  no  efforts  were  undertaken  by  the  Respondents  to  consider  

whether the Appellant  could continue in service in a lower medical  

category.   

4 According to the Appellant, on 5.8.2001 he was slapped on the  

ear by the Instructor in the Training Centre as a consequence of which  

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he suffered shooting pain in that ear and was admitted to the Military  

Hospital,  Kamptee.    We  have  perused  the  Report  of  the  Medical  

Officer (ENT), dated 5.8.2001 which has been filed with the Appeal as  

Annexure P-1.   It contains a noting to the effect that the Appellant had  

stated that he was hit on the ear by a fellow patient in the ward.   The  

diagnosis was that there was “Substandard hearing RT ear (old) c Tr  

perforation LT TM.“  It seems to us that the discrepancy in the noting  

as to the manner in which the injury was sustained was because it was  

inconceivable  for  a  young  recruit  to  lodge  a  complaint  against  his  

Instructor.  Such a complaint would have had serious implications and  

an Inquiry under Regulation 520 of the Regulations of the Army, 1987  

would have had to be carried out.  

5 On 16.2.2002, the Appellant was presented before the Medical  

Board  which  recommended  that  the  Appellant  be  invalided  out  of  

service  with  disability  of  6  per  cent  to  10  per  cent  on  account  of  

hearing impairment.    It  will  bear  repetition that  the exercise  as  to  

whether  the  Appellant  could  be  retained  in  service  in  some  other  

category was not even thought of or considered or undertaken, in the  

face of the Pension Regulation for the Army, 1961, Part I, Appendix II  

(4) and (9) which postulates that “the claimant shall not be called upon  

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to prove the conditions of entitlement.  He/she shall receive the benefit  

of any reasonable doubt.   This benefit shall be given more liberally to  

the  claimants  in  field/afloat  service  cases.”   In  its  letter  dated  18th  

October,  2004  the  respondents  have  recorded  that  the  Invaliding  

Medical  Board  (IMB)  had  considered  the  Appellant’s  Invalided  

Disability (ID) and had concluded it to be:-

(i) as  neither  attributable  nor  aggravated  by  Military  Service; and

(ii) as  assessed  the  degree  of  disablement  of  the  said  disease at 6 to 10 per cent, permanently for life.

Inexplicably, but very significantly, it has also been recorded that the  

above disability had existed before entering service, but had remained  

undetected by the recruiting Medical Officer. It  has  further  been  

conveyed to the Appellant by the said letter that as per Regulation 173  

of  the  Pension  Regulations  for  the  Army  1961,  Part-I,  disability  

pension is granted to an individual  on his invalidment from service  

only  when his  disability  is  viewed  as  attributable  or  aggravated  by  

Military  Service  and  is  assessed   at  20  per  cent  or  above  by  the  

competent Medical Authority, and since neither of these two factors  

was  present,  the  Appellant  was  not  entitled  to  grant  of  disability  

pension  in  terms  of  the  said  Regulation.    The  said  Regulation  is  

reproduced below for ease of reference:-

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“173. Unless  otherwise  specifically  provided  a  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. 173-A.  Individuals who are placed in a lower medical category  (other than ‘E’) permanently and who are discharged because  no alternative employment in their own trade/category suitable  to  their  low medical  category could be provided or  who are  unwilling to accept the alternative employment or who having  retained  in  alternative  employment  are  discharged  before  completion of their engagement, shall be deemed to have been  invalided from service for the purpose of the entitlement rules  laid down in Appendix II to these Regulations.

Note: The  above  provision  shall  also  apply  to  individuals who are placed in a low medical category while  on extended service and discharged on the account before  the completion of the period of their extension.

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

6 We think that it is beyond cavil that a combatant soldier is liable  

to be invalided out of service only if his disability is 20 per cent or  

above and there is a further finding that he cannot discharge duties  

even after being placed in a lower medical category.   We are indeed  

satisfied to note that Rule 173 Appendix-II (10) postulates and permits  

preferment of claims even “where a disease did not actually lead to the  

member’s  discharge  from  service  but  arose  within  ten  years  

thereafter.”     We,  just  as  every  other  citizen  of  India,  would  be  

extremely  disturbed  if  the  Authorities  are  perceived  as  being  

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impervious or unsympathetic towards members of the Armed Forces  

who  have  suffered  disabilities,  without  receiving  any  form  of  

recompense  or  source  of  sustenance,  since  these  are  inextricably  

germane  to  their  source  of  livelihood.   Learned  Counsel  for  the  

respondents  has  failed  to  disclose  any  provision  empowering  the  

invaliding out of service of any person whose disability is below 20 per  

cent.  Indeed, this would tantamount to dismissal of a member of the  

Armed  Forces  without  recourse  to  a  court-martial  which  would  

automatically entitle him to reinstatement.  Regulation 143 envisages  

the ‘Re-Enrolment of Ex-Servicemen Medically Boarded Out’, where  

the disability is reassessed to be below 20 per cent.    It is, therefore,  

self contradictory to contend that the invaliding out of service of the  

Appellant  was  justified  despite  his  disability  being  of  trivial  

proportions having been adjudged between 6 to 10 per cent only.   We  

shall  presume,  albeit  fortuitously  for  the  Respondents,  that  re-

assessment  of  the  Appellant’s  disability  was  not  required  to  be  

performed because it was found to be permanent.   Otherwise, there  

would  be  a  facial  non-compliance  with  Regulation  143,  which  is  

extracted below for ease of reference:-

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“143.Re-Enrolment  of  Ex-Servicemen  Medically  Boarded  Out._(a)Ex-Servicemen, who are in receipt of disability pension,  will not be accepted for re-enrolment in the Army.

(b)Ex-Servicemen,  medically  boarded  out  without  any  disability pension or those whose disability pensions have been  stopped because of their disability having been re-assessed below  20% by the Re-Survey Boards, will be eligible for re-enrolment,  either in combatant or non-combatant (enrolled) capacity in the  Army, provided they are re-medically boarded and declared fit by  the medical authorities.   If such an ex-serviceman applies for re- enrolment and claims that he is entirely free from the disability  for which invalided, he will be medically examined by the Rtg  MO and if he considers him fit, the applicant will be advised to  apply to officer-in-charge, Records Office concerned, through the  recruiting officer for getting himself re-medically boarded.  The  officer-in-charge,  Records  Office  concerned,  on  receipt  of  the  application,  will  arrange  for  his  medical  examination  at  a  Military  Hospital  nearest  to  his  place  of  residence.    The  individual concerned will have to pay all his expenses, including  that  on  accommodation  and journey to  and  from the  place  of  medical examination.

If  the  individual  is  found  fit  and  re-enrolled  on  regular  engagement, he will be enlisted for the full period of combined  colour and reserve service, subject to the following conditions:-

(i) If he had not previously completed the minimum period  of  colour  service  after  which  he  could  be  transferred  to  the  reserve, he will rejoin the colours and his previous colour service  will count towards the minimum service required for transfer to  the reserve.

(ii) If he had previously completed the minimum period of  colour  service  required for  transfer  to  the  reserve and is  fully  trained and suitable in all other respects, he may be re-enrolled,  provided a  vacancy  in  the  reserve  exists,  and  be  immediately  transferred to the reserve.

(c) The counting of former service for pension or gratuity  is governed by the provisions of Pension Regulations.”

7 The next  submission  on behalf  of  the respondents  is  that  the  

injury/disability sustained by the Appellant is neither attributable nor  

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aggravated by Military Service, thereby disentitling him for grant of  

disability pension.    We must draw an adverse presumption against the  

respondents,  inasmuch as  no  impairment  in  the Appellant’s  hearing  

had been detected  at  the  time when he  was enrolled on 15.3.2001,  

pursuant  to  a  complete  physical  check  up.    In  fact,  an  adverse  

presumption is postulated in Appendix II (supra).    In our opinion, the  

version of the Appellant that injury was sustained by him as a result of  

his having been slapped by his Instructor, or for that matter by any  

other  Combatant,  has  credibility.    We had already adverted  to  the  

Confidential Medical Report dated 5th August, 2001 which specifically  

contains a mention of the Appellant having been assaulted.    In the  

circumstances,  we  cannot  but  conclude  that  the  injury  was  ‘either  

attributable or aggravated by Military Service’.   Having undergone a  

thorough medical examination only one year prior to the incident, had  

the injury or disability been congenital or been in existence at the time  

of recruitment, it would have been duly discovered.    Therefore, on  

both counts viz. disability to the extent of less than 20 per cent, as well  

as  it  having  been  occurred  in  the  course  of   Military  Service,  the  

findings have to be in favour of the Appellant.

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8 Paragraph 183 of the Pension Regulations for the Army 1961,  

(Part-I) stipulates as under:-

“183.  The disability pension consists of two elements viz. Service  element and disability element which shall be assessed as under: (1)   Service element ….. (2)   Disability element ….. …………………….. In case where an individual is invalidated out of service before  completion of his prescribed engagement/service limit on account  of  disability  which  is  attributable  to  or  aggravated  by  military  service and is assessed below 20 percent, he will be granted an  award equal to service element of disability pension determined in  the manner given in Regulation 183 Pension Regulations for the  Army Part-I(1961). ”  

9. We are of the persuasion, therefore, that firstly, any disability  

not recorded at the time of recruitment must be presumed to have been  

caused  subsequently  and  unless  proved  to  the  contrary  to  be  a  

consequence  of  military  service.   The  benefit  of  doubt  is  rightly  

extended in favour  of  the  member  of  the  Armed Forces;  any other  

conclusion  would  be  tantamount  to  granting  a  premium  to  the  

Recruitment Medical Board for their own negligence.   Secondly, the  

morale of the Armed Forces requires absolute and undiluted protection  

and if an injury leads to loss of service without any recompense, this  

morale would be severely undermined.  Thirdly, there appears to be no  

provisions authorising the discharge or invaliding out of service where  

the disability is below twenty per cent and seems to us to be logically  

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so.   Fourthly, wherever a member of the Armed Forces is invalided  

out of service, it  perforce has to be assumed that his disability was  

found  to  be  above  twenty  per  cent.   Fifthly,  as  per  the  extant  

Rules/Regulations,  a  disability  leading  to  invaliding  out  of  service  

would attract the grant of fifty per cent disability pension.   

10. In view of our analysis, the Appellant would be entitled to the  

Disability Pension.   The Appeal is, accordingly, accepted in the above  

terms.     The  pension  along  with  the  arrears  be  disbursed  to  the  

Appellant within three months from today.

11. As there is no representation on behalf of the Appellant, a copy  

of  this  Order  be  dispatched  to  the  Appellant  at  the  given  address.  

There will be no order as to costs.

                       ............................................J.              [VIKRAMAJIT SEN]  

                         ............................................J.

            [SHIVA KIRTI SINGH] New Delhi June 25,  2014.  

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