Union of India & Ors. v. Ex Sub Meharban

1. The present petition has been filed by the petitioners, under Article 226 of the Constitution of India, seeking the following reliefs: “a. Stay the operation of the Order dated 12.10.2023 passed by the Ld. Armed Forces Tribunal, Principal Bench, New Delhi in Original Application No. 1347 of 2022 titled "Ex Sub Meharban v. Union of India & Ors"; b. Issue a Writ or direction in the nature of Certiorari, setting aside the Order dated 12.10.2023 passed by the Ld. Armed Forces Tribunal, Principal Bench, New Delhi in Original Application No. 134 7 of 2022 titled "Ex Sub Meharban v. Union of India & Ors”

2. Vide Order dated 12.10.2023 passed by the learned Armed Forces Tribunal, Principal Bench, New Delhi (hereinafter referred to as the, ‘Tribunal’) in Original Application (O.A.) No. 1347 of 2022 titled Ex Sub Meharban v. Union of India & Ors., the learned Tribunal held that the Respondent is entitled to the disability element of pension at 30% for life, rounded off to 50% from the date of discharge of the respondent, for the disability of Primary Hypertension.

3. The brief facts of the present case are that the respondent was enrolled in the Indian Army on 12.10.1991 and was discharged from service on completion of his tenure on 31.10.2021. Prior to his discharge from service, the respondent was subjected to a Release Medical Board (RMB) on 09.08.2021, wherein he was found to be suffering from Primary Hypertension, Dimorphic Anaemia, and Dyslipidemia, with the composite disability assessed at 36.82% for life. The medical opinion of the RMB was that the diseases of Primary Hypertension, Dimorphic Anaemia, and Dyslipidemia were neither attributable to nor aggravated by the military service.

4. Thereafter, the respondent submitted his initial claim for the grant of disability pension, which was rejected by the Army Ordnance Corps Records vide letter dated 07.10.2021.

5. Subsequently, the respondent preferred the aforesaid O.A. before the learned Tribunal.

6. The learned Tribunal, vide the Impugned Order, granted the disability element of pension to the respondent for the disability of Primary Hypertension, as the respondent had pressed his claim only for this disability.

7. Being aggrieved by the Impugned Order, the petitioners have filed the present writ petition before this Court.

8. The learned counsel for the petitioners submits that the learned Tribunal has erred in allowing the O.A. filed by the respondent merely by placing reliance on the Judgment of the Supreme Court in Dharamvir Singh v. Union of India, (2013) 7 SCC 316, without appreciating that the Release Medical Board had duly assessed the disability of the respondent and found the same to be neither attributable to nor aggravated by the military service.

9. The learned counsel submitted that the rule of ‘Presumption’ regarding disability is no longer part of the Entitlement Rules, 2008. It was pointed out that such ‘Presumption’ existed under Rule 5 of the Entitlement Rules, 1982, which established a general presumption that a member of the Armed Force is deemed to have been in sound physical and mental health upon entering service, unless any physical disabilities were noted or recorded at the time of enlistment. Furthermore, if an individual is discharged on medical grounds, it is to be presumed that the deterioration in health occurred due to service conditions.

10. On the other hand, the learned counsel for the respondent drew our attention to the Categorisation Medical Board proceedings dated 24.04.2018 and submitted that the said Board had recorded that the disability of Primary Hypertension was aggravated due to the stress and strain of the military service.

11. We have considered the submission made by the learned counsels for the parties.

12. Upon perusal of the record, we find that the Categorization Medical Board had opined that the disability of Primary Hypertension was aggravated by military service. The said opinion is reproduced hereinbelow:

17. Is the disability attributable to Service ? (Y/N): If so, please explain:- No

18. If not directly attributable to service, was it aggravated by service ? If so, please explain (Y/N): Yes due to stress and strain of military service vide para 43 chapter VI GMO 2008.

13. However, the record indicates that the RMB rejected the claim of the respondent that the disability was aggravated by service. Furthermore, the RMB has not provided any reasons for disagreeing with the findings of the earlier Categorisation Medical Board.