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                                                                   {REPORTABLE}

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS .4357-4358 OF 2015

(arising out of SLP(Civil) Nos.13732-13733/2014)

UNION OF INDIA & ORS                    ..….APPELLANTS

                         Vs.

       MANJEET SINGH                                 …..RESPONDENT

J U D G M E N T

AMITAVA ROY, J.

Leave granted.

2. The instant appeals witness a challenge to the judgment

and  order  dated  22nd May,  2012  rendered  in  LPA(SW)  No.

157/2009 and CMA No. 211/2009 affirming the determination

made  in SWP No. 1439/2004 thereby sustaining the claim of

the respondent herein to disability pension on being boarded

out of the Army service on the ground of disabilities identified

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as   “Generalised  Tonic  Clonic  Seizure”  and   “Neurotic

Depression”.

3. The  Union  of  India  being  aggrieved  by  the  concurrent

verdicts  requiring  it  to  grant  disability  pension  to  the

respondent herein from the date of his discharge from service,

seeks  redress in the instant appeals.  

4. We have heard the learned counsel for the parties and

have perused the records.  

5. The foundational facts as offered by the rival pleadings

would  provide  the  back-drop  of  the  lingering  debate.  The

respondent had joined the Army service under the Union of

India on 06.4.1999 being awarded medical category of “AYE”

and  according  to  him  after  undergoing  rigorous  medical

examinations as prescribed. He, thereafter, underwent initial

military training at JAK Rifles Centre, Jabalpur whereafter he

was posted at No. 5 JAK Rifles at Amritsar on 5.3.2000. One

day he fell unconscious in the course of cross country practice

in the unit premises and had to be shifted to Military Hospital,

Amritsar where he was treated for his ailment.  The Medical

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Board  that  was  set  up  for  his  examination  lowered  his

category  from “AYE”  to  “CEE”  temporary  w.e.f.  April,  2000.

The respondent has pleaded that subsequent to his discharge

from the hospital  he was detained for  duties at  Kargil.   He

availed  leave  as  was  granted thereafter,  to  join  later  at  his

transit Camp at Chandigarh.  As admitted by him, while on

duty,  he  again  fell  to  the  same  illness  and  had  to  be

hospitalized.  The Review Medical Board, after examining him,

placed him in category “BEE” permanent for the first disability

and  category  “CEE”  temporary  for  the  second  disability  as

mentioned therein.  On his discharge from the hospital, the

respondent  was  sent  to  JAK  Rifles,  Jabalpur.   Though  he

applied  for  sheltered  appointment,  the  same  was  not

entertained.    It  was soon thereafter that he was invalided

from service on being adjudged unsuitable, by the invaliding

Medical  Board  which assessed his  disability  percentage  as

20%  qua   the  first  disability;   and  20%  for  the  second

disability;   summing upto 40% for  both the  diseases.   The

Board thus recommended that  he be invalided out of  Army

service which, in fact, was given effect to on 01.1.2002.  He

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unsuccessfully  appealed  against  this  decision  before  the

higher authorities.  His claim for disability pension was also

rejected on the ground that  the disabilities  detected in him

were neither  attributable  to  the  Army service  nor  could  get

aggravated therefrom.    Contending that the decision to board

him  out  of  service  and  the  denial  of  disability  pension

otherwise payable to him under the relevant rules, was illegal

and arbitrary, the respondent invoked the writ jurisdiction of

the  High  Court  of  Jammu  and  Kashmir  at  Jammu  for  its

remedial intervention.   

6. The appellants in their reply apart from the preliminary

objection to the maintainability of the assailment, in essence

pleaded that having regard to the respondent’s short service

profile which demonstrated that for a major part thereof he

had remained hospitalized during the training and thereafter,

the diseases diagnosed  could neither to be attributable to the

Army  service  nor  comprehended  to  be  aggravated  thereby.

While  admitting  that  the  respondent  had  joined  the  Army

service on 06.04.1999 and that on the completion of the basic

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military  training  he  was  posted  at  5,  JAK  Riffles  on

04.03.2000,  the  Union  of  India  set  out  in  details,  the

particulars of  the periods during which the respondent had

remained  hospitalized  for  treatment.   According  to  it,  the

official  record  did  reveal  that  he  remained  under  medical

treatment being hospitalized for the periods as hereunder:

S. No.

Period of  Hospitalization

Name of the  Hospital

Diagnosed disease

a. 24.03.2000 to  29.03.2000

Military Hospital,  Amritsar

Generalised  Tonic-Clonic Seizure

b. 30.03.2000 to  12.04.2000

Command Hospital  (Western Command) Chandimandir Military Hospital,  Amritsar

Generalised  Tonic-Clonic Seizure

c. 12.12.2001 to 5.02.2001

Military Hospital,  Amritsar

Neurotic  Depression  Generalised  Tonic-Clonic  Seizure(old)

d. 20.3.2001 to  29.3.2001

Military Hospital,  Jabalpur

Generalised  Tonic-Clonic  Seizure

Neurotic  Depression (ICD)  300 (Relapse)  

e. 30.7.2001 to Military Hospital, Generalised

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31.8.2001 Jabalpur Tonic-Clonic  Seizure

Neurotic  Depression (ICD)  300  

That based on such state of health of the respondent, he

was placed in low medical category “CEE” (temporary) w.e.f.

11.4.2000 to 10.10.2000   and thereafter in the low medical

category “BEE” (permanent) w.e.f. 11.10.2000, was mentioned

as  well.  It  was  stated  further  that  the  respondent  was

eventually  lowered  to  the  medical  category  S-3(T-24)  “CEE”

(temporary) w.e.f. 3.02.2001.

7. The Union authorities reiterated that this down grading

of the medical category was in view of the diagnosed disease

i.e.  Generalised  Tonic  Clonic  Seizure-345  and  Neurotic

Depression  (ICD)300.   It  was  admitted  that  though  the

respondent was willing to continue in sheltered appointment,

the same being not available qua his medical category, he was

discharged from Army service on medical grounds under the

relevant provisions of the Army Rules 1954 w.e.f. 31.12.2001

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and  was  finally  struck  off  from  the  strength  of  the  Army

service w.e.f.1.1.2002.

8. Prior  thereto,   the  Release  Medical  Board  held   on

30.8.2001  at   Military  Hospital,   Jabalpur  assessed  the

disability Generalised Tonic Clonic Seizure-345 at 20%  for 2

years,  disability Neurotic Depression (ICD)300  at 11-14%  for

2 years and the composite assessment of  disability  at  20%.

The Union of India in its reply did categorically state that the

Medical Board was of the opinion that the disabilities of the

respondent were neither attributable to nor aggravated by the

Army  service  and  were  instead  constitutional  in  nature.

According to it, though monetary benefits as allowable under

the relevant rules were released to the respondent, his claim

for disability pension was rejected being impermissible.   

9. That  the departmental  appeals  filed by the  respondent

had been rightly  rejected as his  constitutional  disorder was

neither  attributable  to  nor  aggravated  by  Army  service,

disentitling  him  thereto  as  per  para  173  of  the  Pension

Regulations for the Army, 1961 (part-1) (for short hereinafter

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also referred to as “Regulations”) was emphatically underlined.

It was clarified as well that at the time of entry in service, it

was not possible to conduct complete medical examination in

order  to  detect   dormant  diseases  and  that  the  tests

undertaken  were  factually  clinical  in  nature  to  ascertain

physical fitness.  Thus according to the Union, any disease of

genetic or hereditary origin was likely to go undetected at the

time of recruitment.  

10. The  learned   Single  Judge  on  an  appraisal  of  the

contemporaneous facts and the documents available on record

alongwith Regulation 173 of the Regulations and paragraphs

2, 3, 4 and 7(b) of Appendix 11 thereto returned a finding that

the invaliding Medical Board having failed to record reasons

that the disease could not be detected on medical examination

at the time of entry in service and that the same could not

have aggravated during the course of his employment, its bare

conclusion that those were constitutional in nature,  was not

in compliance of  the Regulations.  The learned Single  Judge

held that as the disability of the respondent was assessed at

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20%,  he  was  entitled  to  disability  pension  and  as  a

consequence, quashed the orders to the contrary and directed

the  Union  of  India  and  its  authorities  to  grant  disability

pension to him from the date he was discharged from service.

Time limit of four months was also outlined for the completion

of  the  exercise,  failing  which  it  was  ordered  that  the

respondent would be entitled to interest @ 7.5% p.a.

11. The Intra-Court appeal did also meet the same fate, the

Division  Bench  having  wholly  endorsed  the  determination

made  by  the  learned  Single  Judge.  It  did  further  base  its

eventual decision on the judgment of that Court in LPA (SW)

212/2006, Union of India and Others vs. Ravinder Kumar.

12. Mr.  Patwalia,  learned Addl.  Solicitor  General  appearing

on behalf  of  Union of  India has insistently  argued that  the

conclusions recorded by the High Court at both the   levels are

patently  erroneous being dehors the recorded facts and the

supporting  documents,  besides  being  incompatible  with  the

relevant rules and regulations governing the issue of disability

pension payable to a member of  the Army service on being

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boarded out therefrom on the ground of disability.   Apart from

contending that the decision in Union of  India & Others vs

Ravinder Kumar (Supra), on which the Division Bench of the

High  Court  had  placed  reliance  had  been  overturned,  the

learned  Addl.  Solicitor  General  maintained  that  as  the

respondent during his short tenure was mostly lodged in the

hospital  for  his  treatment for  the disease for  which he was

invalided from service,  it is patent that the  same could not

either  be attributable  to  Army service  or  construed to  have

been aggravated thereby.   

13. Mr. Patwalia has urged that the essential pre-requisites

for  grant  of  disability  pension  i.e.  attributability  of  the

respondent’s  disease  to  the  Army  service  or  aggravation

thereof  being non-existent  in the case in hand,  he was not

entitled thereto and therefore,  the finding to the contrary is

repugnant to the relevant rules and regulations. Drawing the

attention  of  this  Court,  inter  alia,  to  paragraph  7(b)  of

Appendix  II  to  the  Regulations,  the  learned  Addl.  Solicitor

General  has  maintained  that  the  Medical  Board  having

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unequivocally  opined  that  the  respondent’s  diseases

“Gerenalised Tonic  Clonic  Seizure  and Neurotic  Depression”

were constitutional in nature and thus he was disentitled to

disability  pension,  the  impugned  decision  is  clearly  not

sustainable  in law and on facts.   Without  prejudice to  this

plea, Mr. Patwalia has urged that in case this finding of the

Medical Board does not find favour with this Court for want of

adequate reasons.  It  is  a  fit  case for  remand to  it  (Medical

Board) for an appropriate speaking opinion.  To buttress his

contentions, he placed reliance on the following decisions of

this Court:

(1)  Secretary,  Ministry  of  Defence  &  Others  vs.   A.V. Damodaran(Dead) through LRs. &  Others -reported in (2009)9 SCC 140

(2)  Union of India & Others vs.  Jujhar Singh -reported in (2011)7 SCC 735

(3)  Dharamvir  Singh  vs.  Union  of  India  &  Others -reported in (2013) 7 SCC 316

(4)  Veer  Pal  Singh  vs.  Secretary,  Ministry  of  Defence -reported in (2013) 8 SCC 83 and

(5) Civil  Appeal  No.  1837/2009  (d/o/d  23.5.2012). Union of India & Anr. Vs Ravinder Kumar

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14. Per Contra,  Mr. Chib has assiduously asserted that as

the concurrent determinations made successively by the High

Court are based on a threadbare scrutiny of the relevant facts

and  the  provisions  of  the  law  involved,  no  interference

therewith  is  warranted.  Emphatically  contending  that  the

diseases diagnosed on the eve of the respondent’s discharge

from Army service had been acquired by him in the course of

his  tenure,  short  though,  and was thus clearly  attributable

thereto,  the  denial  of  disability  pension  to  him was  clearly

illegal, high handed, arbitrary and discriminatory. According

to  Mr.  Chib  on  a  combined  consideration  of  the  relevant

provisions of the Regulations and the Appendix II, containing

“Entitlement  Rules  for  Casualty  Pensioners  Awards  1982”

(hereinafter  referred  to  as  the  “Rules”)   and  the  “Guide  to

Medical Officers (Military Pension), 2002”, (hereinafter referred

to  as  the  “General  Principles”),  it  being  irrefutable  that  the

respondent was entitled to disability pension thereunder,  the

High  Court  was  perfectly  justified  in  affirming  the  same.

Pleading  in  particular  that  the  Medical  Board had failed  to

record any reason whatsoever in support of its conclusion that

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either  the  disease  detected  or  the  disability  consequent

thereupon  was  neither  attributable  to  Army  service  nor

aggravated thereby, he urged that the respondent could not

have been denied disability pension on the vague remark that

the said diseases were constitutional in nature.  According to

Mr.  Chib,  the  Medical  Board  having  failed,  without  any

justification to record the reasons in support of its conclusion

that the diseases were constitutional in nature, the very basis

of  denial  of  disability  pension  to  the  respondent  had  been

rendered non est. According to learned counsel, the relevant

rules  and  regulations  are  to  be  essentially  construed  and

interpreted liberally and in the realistic perspectives and not

pedantically  to facilitate  effectuation of  the  purpose thereof.

Mr. Chib has drawn sustenance for his pleas from the decision

of this Court in Civil Appeal No: 2904 of 2011 Union of India &

Anr. Vs. Rajbir Singh & Ors. disposed of  on 13.2.2015.

15. The pleaded assertions and the arguments based thereon

have received our due consideration.   It is undisputed that

soon after the respondent had joined the service on 6.4.1999

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having  been  adjudged  to  be  fully  fit  therefor,  following  a

rigorous medical  test,  he  fell  ill  and had to  be  hospitalized

where he was diagnosed in due course, to be afflicted by (1)

“Generalised  Tonic  Clonic  Seizure”  and  (2)  “Neurotic

Depression”. It is a matter of record that the respondent had

to be hospitalized on more than one occasion during his short

tenure  ranging  from  8.4.1999  to  1.1.2002  when  he  was

invalided  from  service.   Intermittently,  as  the  chart  of  his

medical  treatment  as set  out  in the  reply  of  the appellants

reveals, he had actively served in all, for a period of about one

year.  That he was thus mostly under treatment for the above

two  disabilities  during  his  stint  with  the  appellants,  is

undeniable. Be that as it may, the sustainability of the denial

of disability pension to him has to be essentially tested on the

touch-stone  of  the  compliance  of  the  relevant  Rules  and

Regulations. Apt,  it  would thus be to advert to the relevant

provisions thereof at the threshold.  Undoubtedly the guiding

course in this regard have been outlined in Regulation 173,

Rule 5, 9 and 14 in particular of the Rules as well as paras 7,8

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and 9 of the “General Principles”.  Expedient it would be thus

to set out these provisions for ready reference.

Regulation 173 which deals with primary conditions for

the grant of pension reads as under:

"173. Primary  conditions  for  the  grant  of disability pension; Unless otherwise specifically provided a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by Army service and is assessed at 20 per  cent  or  over.   The  question whether  a disability  is  attributable  to  or  aggravated  by Army service shall be determined under the rule in Appendix II."

Rule 5, 9 and 14 of the Entitlement Rules for Casualty

Pensionary Awards, 1982 reads as under:

"5. 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

(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 determination  in  his  health,  which  has  taken place is due to service."

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"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."

"14. Diseases.- In respect of diseases, the following rule will be observed -

(a) Cases in which it is established that conditions of Army 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  Army  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.

(c) If  a  disease  is  accepted  as  having arisen  in  service,  it  must  also  be  established that the conditions of Army service determined or contributed to the onset of the disease and that  the  conditions  were  due  to  the circumstances of duty in Army service."

(emphasis supplied)

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Chapter  –  II  of  the  Guide  to  Medical  Officers  (Military

Pension),  2002  which  sets  out  the  “Entitlement:  General

Principles”, Paras, 7, 8 and 9 of the guidelines read as under:

"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 Army 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. pre-enrolment 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 categorisation  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:

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(a) Certain congenital abnormalities which are latent  and  only  discoverable  on  full investigation e.g.  Congential  defect  of  Spine,  Spina  bifida, Sacralistaion, (b) Certain familial and hereditary diseases e.g. Haemophilia,  Congential  Syphilis, Haemoglobinopathy. (c)  Certain  diseases  of  the  heart  and  blood vessels  e.g.  Coronary  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 be carefully and closely questioned on the circumstances which  led  to  the  advent  of  his disease,  the  duration,  the  family  history,  his pre-service 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

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otherwise are supported by cogent reasons; the approving  authority  should  also  be  satisfied that this question has been dealt with in such a way as to leave no reasonable doubt.  

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 realised 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."

The Regulation, Rules and General Principles concededly

are statutory in nature and thus uncompromisingly binding

on the parties.

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16. A  conjoint  reading  of  these  provisions,  unassailably

brings to the fore, a statutory presumption that a member of

the  service  governed  thereby  is  presumed  to  have  been  in

sound medical condition at the entry, except as to the physical

disability as recorded  at  that point of time and that if he is

subsequently  discharged  from  service  on  the  ground  of

disability, any deterioration in his health has to be  construed

to be attachable to his service.  Not only the member in such

an  eventuality,  could  not  be  called  upon  to  prove  the

conditions of his entitlements, he would instead be entitled to

the any reasonable doubt with regard thereto. Regulation 173

in clear terms not only mandates that disability pension may

be granted to an individual invalided from service on account

of disability which is attributable to and aggravated by Army

service and is assessed as 20%, it specifically provides as well

that the question as to whether such disability is attributable

to or aggravated by Army service is to be determined by the

Rules.   Rule  14(b)  in  specific  terms  enjoins  that  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

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was made at the time of his acceptance for Army service.   The

exception to this deduction is, only in the event of a medical

opinion, supported by reasons to the effect that the disease

could not have been detected on medical examination prior to

acceptance for service whereupon it would be deemed that the

disease  had  not   arisen  during  service.   The  underlying

ordainment of these salutary provisions is patently supportive

of the inference that the disease/disability for which a member

of a Army service is boarded out had been contracted by him

during  his  tenure  unless  the  same  is  displaced  by  cogent,

coherent and persuasive reasons to be recorded by the Medical

Board as contemplated.  Absence of  such a presumption in

favour  of  attributability  to  the  Army  service  or  aggravation

thereby,  displaceable  though,  cannot  be  readily  assumed

unless  endorsed  by  contemporaneous  records  and

overwhelming  reasons  recorded  by  the  invaliding  Medical

Board to the contrary. The acknowledged primacy extended to

the  opinion  of  the  Medical  Board,  and  its  views  and

recommendations thus assuredly would have to be subject to

the hallowed objectives of the relevant provisions of the Rules,

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Regulations  and  the  General  Principles  laden  with  the

affirmative  presumption  in  favour  of  the  member  of  the

service. Not only the manifest statutory intendment and the

avowed purpose of these provisions cannot be disregarded, a

realistic approach in deciphering the same has to be adopted.

The incident of invaliding a member of the Army service entails

curtailment of the normal tenure for his recorded disability to

the  extent  of  20%  or  more  and  thus  in  our  own

comprehension,  the disentitling requisites  would have to  be

stringently  construed.   The decisive  determinant as  per  the

relevant provisions of the Regulations, Rules and the General

Principles,  is  the  attributability  of  the  disability  involved  or

aggravation thereof  to Army service.   It  cannot be gainsaid,

however,  that  there  ought  to  be  at  least  a  casual  and

perceptible  nexus  between  the  two,  but  denial  of  disability

pension  would  be  approvable,  only  if  the  disability  by  no

means can be  related to  the  Army service.   The burden to

disprove the correlation of the disability with the Army service

has been cast on the authorities by the Regulation, Rules and

the  General  Principles  and  thus,  any  inchoate,  casual,

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perfunctory  or  vague  approach  of  the  authorities  would

tantamount  to  non-conformance  of  the  letter  and  spirit

thereof,  consequently  invalidating  the  decision  of  denial.

Though the causative factors for the disability have to be the

rigor  of  the  military  conditions,  no  insensitive  and

unpragmatic analysis of the relevant facts is envisaged so as to

render any of the imperatives in the Regulations, Rules and

General  Principles  otiose  or  nugatory.  To  the  contrary,  a

realistic, logical, rational and purposive scrutiny of the service

and medical profile of the member concerned is peremptory to

sub-serve the true purport and purpose of these provisions. To

reiterate,  invaliding a member from the service presupposes

truncation of his normal service tenure thus adjudging him to

be unsuitable therefor.  The disability as well has to exceed a

particular percentage. The bearing of the Army service as an

aggravating  factor  qua  even  a  dormant  and  elusive

constitutional or genetic disability in all fact situations thus

cannot  be  readily  ruled  out.  Hence  the  predominant

significance of the requirement of the reasons to be recorded

by the Medical Board and the recommendations based thereon

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for  boarding  out  a  member  from service.  As  a  corollary,  in

absence of reasons to reinforce the opinion that the disability

is  not  attributable to the Army service or  is  not  aggravated

thereby,  denial  of  the benefit  of  disability  pension would be

illegal and indefensible.   

17. The medical opinion in the instant case, as the precursor

of  the  invalidment  of  the  respondent  therefore  needs  to  be

assayed in this presiding statutory backdrop.   

18. The opinion of the attending doctor on 09.08.2001 prior

to the assessment made by the Medical Board discloses that

his was an old case of Neurotic Depression which came to be

noticed  first  in  December,  2000  when  he  complained  of

tension,  weakness  and  inability  to  do  work.   It  recorded

further  that  his  psychiatric  evaluation  revealed  depression,

somatic  preoccupation  and  depressive  cognition.  Though  it

noted that he was keen to serve further, his release was due to

low medical category.   It was mentioned as well that there was

no clear features of psychosis and sensorium as he ate and

slept well. He was recommended to be fit to be released from

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service.   A  few  excerpts  of  the  proceedings  of  the  Medical

Board  would  be  of  some  advantage  and  are  extracted

hereinbelow.

“  PART I

PERSONAL STATEMENT

………

2. Give particulars of any diseases, wounds or injuries  from which you are suffering  

Illness,  Wound,  Injury

First Started Where  treated

Approximate dates and  period treated

Date Place GENERALIS ED TONIC  CLONIC  SEIZURE-34 5

22.03.2000 AMRITSAR MH  AMRITSAR

22.03.2000  to 27.03.2000

NEUROTIC  DEPRESSIO N-300

18.12.2000 CHANDIMAN DIR

CH(WC)  CHANDIMAN DIR

12.12.2001

3. Did you suffer from any disability mentioned in question  2 or anything like it before joining        the Armed Forces? If so  give details and dates. -No”

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Part III which deals with opinion of the Medical Board reads as  under:     

“ PART III

OPINOIN OF THE MEDICAL BOARD

1. Did the disability/ies exist before entering serviced? – No.

2. (a) In respect of each disability the Medical Board on the  evidence before it will express its views as to whether:-

(i)  it is attributable to service during peace or under filed service conditions; or  

(ii) It has been aggravated thereby and remains so: or

(iii) It is not connected with service.

The board should state fully the reasons in regard to each disability on  which its opinion is based.  

Disability A B C GENERALISED TONIC  CLONIC SEIZURE - 345

NO NO YES

NEUROTIC DEPRESSION -  300

NO NO YES

(b) In respect of each disability shown as attributable under 'A', the Board should state fully, the specific condition and period in service which caused the disability  182 = NA

(c) In respect of each disability shown as aggravated under B the Board should state fully:-

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(i) The specific condition and period in service which  aggravated the disability.

182 = NA  

(ii) Whether the effects of such aggravation still persist.  

182 = NA

(iii) If the answer to (ii) is in the affirmative, whether effect of  aggravation will persist for a material period.

182 = NA  

(d)  In the case of a disability under C, the Board should state  what exactly in their opinion is  the caused thereof.

182 = Both disabilities are constitutional in nature hence  unconnected with Army service.”

19. Eventually, the Board on the basis of the disabilities (1)

“Generalised  Tonic  Clonic  Seizure-345”  and  (2)  “Neurotic

Depression-300” did compute the composite disability of the

respondent to be 20%.

20. Significantly, as would be evident from the above quoted

extracts,  the  respondent  had  on  being  queried  during  his

examination,  denied to have been suffering from any of  the

disabilities at the time of joining the Army service.  

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21. Though as per Clause 2(a) of Part III,  the Medical Board

was required to express its views on the aspects as to whether

the disabilities;

(1) were attributable to service during peace or under  

field service conditions;

(2) were aggravated thereby and remained to be so; (3) were not connected with service;  

and was required to  state  reasons with regard to

each of the disabilities of which its opinion was based,

it merely recorded in the negative vis-a-vis the first two

and  in  the  affirmative  qua  the  third  and  abruptly

concluded that both the disabilities were constitutional

in nature and hence unconnected with Army service.

No reason whatsoever was cited by the Medical Board

in  support  of  this  conclusion.   On the  contrary,  its

deduction that the disabilities were unrelated to the

Army service was founded only on the fact that those

were  constitutional  in  nature  and  no  other

consideration or reason whatsoever. That the opinion

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of  the  Medical  Board  lacks  in  reasons,  has  been

conceded too by the learned counsel for the appellants.

22. Be that as it may, adverting inter alia to Rule 14(b) of the

Rules, we are of the unhesitant opinion that reasons, that the

diseases could not be detected on medical examination prior to

acceptance in service, ought to have been obligatorily recorded

by the Medical Board sans whereof, the respondent would be

entitled to the benefit of the statutory inference that the same

had been contracted during service or have been aggravated

thereby.  There is no reason forthcoming in the proceedings of

the  Medical  Board,  as  to  why  his  disabilities  eventually

adjudged to be constitutional or genetic in nature had escaped

the  notice  of  the  authorities  concerned  at  the  time  of  his

acceptance  for  Army  service.  On  a  comprehensive

consideration  of  the  Regulation,  Rules  and  the  General

Principles as applicable, the service profile of the respondent

and the proceedings of the Medical Board, we are constrained

to  hold  that  he  had  been  wrongly  denied  the  benefit  of

disability  pension.  His  tenure albeit  short,  during which he

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had to be frequently hospitalized does not irrefutably rule out

the  possibility,  in  absence  of  any  reason  recorded  by  the

Medical  Board  that  the  disability  even  assumed  to  be

constitutional or genetic, had not been induced or aggravated

by  the  arduous  military  conditions.  The  requirement  of

recording  reasons  is  not  contingent  on  the  duration  of  the

Army  service  of  the  member  thereof  and  is  instead  of

peremptory nature, failing which the decision to board him out

would be vitiated by an inexcusable infraction of the relevant

statutory provisions. Having regard to the letter and spirit of

the  Regulation,  Rules  and  the  General  Principles,  the

prevailing  presumption in  favour  of  a  member  of  the  Army

service boarded out on account of disability and the onus cast

on  the  authorities  to  displace  the  same,  we  are  of  the

unhesitant opinion that the denial of disability pension to the

respondent in the facts and circumstances of the case, have

been repugnant to the relevant statutory provisions and thus

cannot be sustained in law.  The determination made by the

High Court of Jammu and Kashmir at Jammu is thus upheld

on its own merit.  

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23. The  authorities  cited  at  the  Bar  though underline  the

primacy of  the  opinion of  the  Medical  Board on the  issue,

however, do not relieve it of its statutory obligation to record

reasons as required.  Necessarily, the decisions turn on their

own facts.   With  the  provisions  involved  being  common in

view of the uniformity in the exposition thereof, a dilation of

the adjudications is considered inessential. 24. Though  noticeably,  the  decision  rendered  in  LPA(SW)

212/2006; Union of India and Others vs. Ravinder Kumar,  as

referred to in the impugned judgment,  was reversed by this

Court in Civil Appeal No.1837/2009,  we are of the respectful

view that the same cannot be construed to be a ruling relating

to  the  essentiality  of  recording  of  reasons  by  the  Medical

Board  as  mandated  by  the  Regulations,  Rules  and  the

Guiding Principles.  This decision thus is of no determinative

relevance vis-a-vis the issues involved in the present appeal. 25. The last in the line of the rulings qua the dissensus has

been  pronounced  in  a  batch  of  Civil  Appeals  led  by  Civil

Appeal No.  2904 of 2011; Union of India & Others vs. Rajbir

Singh in which this  Court on an exhaustive and insightful

exposition  of  the  aforementioned  statutory  provisions  had

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observed  with  reference  as  well  to  the  enunciations  in

Dharamvir Singh vs. Union of India 2013(7) SCC 316, that

the provision for payment of disability pension is a beneficial

one and ought to be interpreted liberally so as to benefit those

who have been boarded out from service, even if they have not

completed their tenure. It was observed that there may indeed

be  cases  where  the  disease  is  wholly  unrelated  to  Army

service but to deny disability pension, it must affirmatively be

proved that the same had nothing to do with such service.  It

was underlined that the burden to establish disability would

lie heavily upon the employer, for otherwise the Rules raise a

presumption  that  the  deterioration  in  the  health  of  the

member of the service was on account of Army service or had

been aggravated by it.  True to the import of the provisions, it

was held that  a soldier  cannot  be asked to  prove that  the

disease was contracted by him on account of Army service or

had  been  aggravated  by  the  same  and  the  presumption

continues in his favour till it is proved by the employer that

the disease is neither attributable to nor aggravated by Army

service.   That  to  discharge  this  burden,   a  statement  of

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reasons supporting the view of the employer is the essence of

the  rules which would continue to be the guiding canon in

dealing  with  cases  of  disability  pension  was  emphatically

stated. As we respectfully, subscribe to the views proclaimed

on the issues involved in Dharamvir Singh (supra) and Rajbir

Singh(supra)  as alluded hereinabove,  for the sake of brevity,

we refrain  from referring to the details.   Suffice it to state

that  these  decisions  do  authoritatively  address  the  issues

seeking adjudication in the present appeals and endorse the

view taken by us.   26. In  the  wake  of  the  above,  we  hereby  sustain  the

impugned judgment and order.  The appeals are dismissed.

No costs.

……………………..J.  (M.Y. Eqbal)

……………………..J.    (Amitava Roy)

      New Delhi

      Dated: May12, 2015