Bijender Singh vs Union Of India

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4458-4459 OF 2024

BIJENDER SINGH APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. RESPONDENT(S)

JUDGMENT

UJJAL BHUYAN, J.

Heard learned counsel for the parties.

2. Subject matter of both the civil appeals is the

same. Therefore, both the appeals are being disposed of by

this common judgment and order. However, for the sake of

convenience, we refer to the facts mentioned in Civil Appeal

No. 4458 of 2024.

Signature Not Verified Digitally signed by KAVITA PAHUJA Date: 2025.04.23 17:13:26 IST Reason: 2.1. This is an appeal under Section 30 of the Armed

Forces Tribunal Act, 2007 against the order dated

22.01.2018 passed by the Armed Forces Tribunal,

Chandigarh Regional Bench in R.A. No. 20 of 2016 in O.A.

No. 3977 of 2013 as well as the order dated 26.02.2016

passed by the Armed Forces Tribunal, Chandigarh Regional

Bench in O.A. No. 3977 of 2013.

3. Be it stated that appellant as the applicant had

filed O.A. No. 3977 of 2013 before the Armed Forces

Tribunal, Chandigarh Regional Bench (‘Tribunal’ for short)

under Section 14 of the Armed Forces Tribunal Act, 2007

(briefly ‘the 2007 Act’ hereinafter) contending that he was

entitled to the disability element of disability pension on

account of his disability attributable to military service,

rounding off of his disability to 50%. By the order dated

26.02.2016, Tribunal held that disability of the appellant

was less than 20%. Therefore, no relief could be granted to

the appellant. Resultantly, O.A. No. 3977 of 2013 was

dismissed.

2

4. Appellant filed a review application under Rule 18

of the Armed Forces Tribunal (Procedure) Rules, 2008 for

review of the order dated 26.02.2016. The same was

registered as R.A. No. 20 of 2016. By order dated

22.01.2018, Tribunal held that there was no ground to

review the order dated 26.02.2016 and, accordingly,

dismissed the review application. Request made by the

appellant for grant of leave to appeal was declined.

5. Aggrieved thereby, appellant has preferred the

present civil appeal. Notice in this case was issued on

13.08.2018. In the hearing held on 19.03.2024, leave to

appeal under Section 31(1) of the 2007 Act was granted.

Delay in filing the appeal was condoned.

6. Relevant facts may be briefly noted.

7. Appellant was enrolled in the army on

30.09.1985. He was invalided out from service w.e.f.

14.08.1989 on account of low medical category for the

disease generalized tonic clonic seizure old 345 V-67

3 assessed at less than 20% on the recommendations of the

Invaliding Medical Board.

8. According to the appellant, he was hale and

hearty when he had joined the army. He had suffered the

aforesaid disability during his posting at high altitude

Siachen glacier from May, 1988 to 20.09.1988. Onset of the

disability was from 09.10.1988.

9. Invaliding Medical Board in its proceedings dated

12.07.1989 opined that the disability was not attributable to

or aggravated by military service; the disability was

assessed for a period of two years.

10. In view of the opinion of the Invaliding Medical

Board, appellant was invalided out from service w.e.f.

14.08.1989. He was granted disability pension consisting of

the service element only since the disability was assessed at

less than 20% and held as not attributable to or aggravated

by military service.

11. Re-Survey Medical Boards were held on

07.08.1993, 23.06.1998 and 28.06.2002. On all the three

4 occasions, Re-Survey Medical Boards had assessed the

disability of the appellant at around 15 to 19% further

observing that such disability was for life.

12. Appellant had submitted representations dated

07.08.2010 and 05.02.2013 before respondent No. 3

requesting the authorities to accept his disability as

attributable to and aggravated by military service and

thereafter to release disability pension (disability element) to

him by assessing the disability at 50% w.e.f. 01.01.1996.

However, there was no response.

13. At that stage, appellant approached the Tribunal

by filing O.A. No. 2322 of 2013. By order dated 13.05.2013,

Tribunal disposed of O.A. No. 2322 of 2013 directing the

respondents to take a decision on the aforesaid

representations by passing a speaking order within four

months.

14. Pursuant to the aforesaid order of the Tribunal

dated 13.05.2013, respondents passed an order dated

5 30.07.2013 rejecting the claim of the appellant for disability

pension.

15. Aggrieved thereby, appellant approached the

Tribunal again by filing O.A. No. 3977 of 2013 seeking the

following reliefs:

(i) to quash the order dated 30.07.2013;

(ii) to quash the recommendation of the Invaliding Medical Board to the extent that disability suffered by the appellant was not considered as attributable to and aggravated by military service;

(iii) to direct the respondents to release the disability element of disability pension at the rate of 50% w.e.f. 01.01.1996 for life with 18% interest;

iv) to direct the respondents to pay the arrears of disability element of disability pension w.e.f.

01.01.1996 till full and actual payment.

16. Respondents filed written statement opposing the

claim of the appellant. Contention of the respondents was

that disability of the appellant was found less than 20% by

the Invaliding Medical Board as well as by the Re-Survey

Medical Boards. Therefore, the appellant was not entitled to

6 the grant of disability element of disability pension. As the

disability of the appellant, in any case, was less than 20%

and was neither attributable to nor aggravated by military

service, he was not entitled to such relief.

17. Tribunal vide the impugned order dated

26.02.2016 held that disability of the appellant was less

than 20%. The Invaliding Medical Board as well as Re-

Survey Medical Boards had observed that the disability of

the appellant was neither attributable to nor aggravated by

military service. Therefore, no relief could be granted to the

appellant. Consequently, O.A. No. 3977 of 2013 was

dismissed.

18. Appellant filed R.A. No. 20 of 2016 for review of

the impugned order dated 26.02.2016. It was contended

that Tribunal had not taken into consideration the

judgments relied upon by the appellant. That apart, another

Bench of the Tribunal in which one of the members common

to the Bench which had passed the order dated 26.02.2016

had decided a similar matter by allowing disability pension

7 of the applicant in O.A. No. 908 of 2011 (Mahal Singh Vs.

Union of India) vide the order dated 19.12.2014. It was

argued that there being an error apparent on the face of the

record, the order dated 26.02.2016 should be reviewed. On

the other hand, respondents argued that the impugned

order was a well considered one and there was no error

apparent on the face of the record which would justify

review.

18.1. By the order dated 22.01.2018, the Tribunal

dismissed the review application by holding that the

impugned order was a well-considered one and that there

was no error apparent on the face of the record to justify a

review. Tribunal also declined the oral request of the

appellant for grant of leave to appeal.

19. Learned counsel for the appellant submits that

both the orders of the Tribunal dated 26.02.2016 and

22.01.2018 are wholly unsustainable in law. In so far the

review is concerned, Tribunal simply held that there was no

error apparent on the face of the record and, thereafter,

8 dismissed the review application. He submits that another

Bench of the Tribunal in which one of the members was

common had allowed O.A. No. 908 of 2011 (Mahal Singh Vs.

Union of India) on 19.12.2014 by granting disability pension

to the applicant therein who was similarly placed like the

appellant.

19.1. In so far the impugned order dated 26.02.2016 is

concerned, the same is contrary to the law laid down by this

Court in Dharamvir Singh Vs. Union of India1, Union of India

Vs. Rajbir Singh2 and Union of India Vs. Angad Singh

Titaria3. By ignoring the binding precedents of this Court,

Tribunal had declined the prayer of the appellant to grant

the disability element of disability pension to him.

19.2. Learned counsel submits that the disease or

disability which led to an individual’s discharge will

ordinarily be deemed to have arisen in service if no note of it

was made at the time of his entry into military service.

Medical opinion must disclose cogent reasons as to why the

1 (2013) 7 SCC 316 2 (2015) 12 SCC 264 3 (2015) 12 SCC 257

9 disease or disability is not attributable to military service

though he is invalided out from service on account of such

disease or disability. In the case of the appellant, there is no

note that the disease of generalized tonic clonic seizure old

345 V-67 could not be detected at the time of entry into

service though on account of such disease, appellant was

invalided out of military service in low medical category.

19.3 Learned counsel has also argued that in the

present case, Tribunal did not even consider as to whether

the disease suffered by the appellant is attributable to or

aggravated by military service. This, he submits, itself is an

error apparent on the face of the record. Instead, the entire

focus of the Tribunal was on the issue as to whether the

disability was at 20% or above. Since the Tribunal held that

the disability was less than 20%, it did not consider the core

issue as to whether such disease or disability is attributable

to or aggravated by military service.

19.4. Learned counsel also submits that Tribunal had

overlooked the instructions dated 31.01.2001 which

10 provided for rounding off of disability less than 50% (i.e. 1%

to 49%) to 50%. The condition of minimum 20% disability

required for earning the disability element of disability

pension was abrogated w.e.f. 01.01.1996. The artificial cut-

off date i.e. 01.01.1996 has already been set aside by this

Court in K.J.S. Buttar Vs. Union of India4. Therefore, the

finding of the Tribunal that since the disability of the

appellant was less than 20%, no relief could be granted to

him is clearly unsustainable in law.

19.5. Learned counsel submits that Tribunal also failed

to appreciate the letter dated 20.07.2006 of the Ministry of

Defence, Government of India clarifying that even if a person

has been invalided out from service and having 1%

disability, he would still be entitled for commuting the

benefit of disability element at the rate of 50%. Failure to

consider the aforesaid letter has vitiated the impugned

order.

4 (2011) 11 SCC 429

11 19.6. Learned counsel, therefore, submits that in any

view of the matter, both the impugned orders are liable to be

set aside and quashed. Consequently, respondents should

be directed to grant the disability element of disability

pension to the appellant with applicable interest w.e.f.

01.01.1996.

20. Learned counsel for the respondents on the other

hand submits that case of the appellant was duly

considered. Since his disability was assessed at less than

20%, he could not be granted the disability element of

disability pension. Appellant was provided an opportunity to

prefer an appeal against the rejection of disability pension.

Instead of preferring an appeal before the appellate

authority within the specified period, appellant submitted a

representation to the Government of India, Ministry of

Defence for grant of disability pension. After considering the

representation in the light of the relevant rules, Government

of India, Ministry of Defence rejected the same.

12 20.1. He further submits that the disease or the

disability of the appellant was assessed by the Medical

Board as neither attributable to nor aggravated by military

service.

20.2. Finally, learned counsel submits that the appeal

filed by the appellant is devoid of any merit and the same is

liable to be dismissed.

21. Submissions made by learned counsel for the

parties have been duly considered.

22. Let us first deal with the proceedings of the

Invaliding Medical Board dated 12.07.1989. The Medical

Board carefully examined the appellant who was being

released/invalided out of service in low medical category for

generalized tonic clonic seizure (old) 345 V-67. The Board

opined that appellant was in good bodily health and had the

prospect of an average duration of life. He was, therefore,

recommended for extended insurance cover by Army Group

Insurance after his release/invalidment. In part III of the

proceedings which is marked as confidential, the answer of

13 the Medical Board to the question as to whether the

disability/disabilities of the appellant existed before entering

service was a clear no. Again, answer to the question as to

whether disability was attributable to the appellant’s

negligence or misconduct, was a categorical no. Percentage

of disablement was assessed at 15% for a probable duration

of two years.

23. In the Re-Survey Medical Board proceedings

dated 07.08.1993, the aforesaid disability was assessed at

less than 20% (15 to 19%) for 5 years.

24. The above view was reiterated in the Re-Survey

Medical Board proceedings held on 23.06.1998 where the

disability was again assessed between 15 to 19% for a

period of 10 years.

25. Finally, in the Re-Survey Medical Board

proceedings dated 28.06.2002, the disability was assessed

at being static i.e. 15 to 19% with the further remark that

duration of such disability would be lifelong.

14

26. We may now deal with the relevant provisions of

the Pension Regulations for the Army, 1961 (briefly ‘the

Regulations’ hereinafter).

27. Regulation 173 deals with the primary condition

for the grant of disability pension. Regulation 173 reads

thus:

Primary conditions for the grant of disability Pension

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 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.

28. Regulation 183 of the Regulations says that the

disability pension consists of two elements viz service

element and disability element. Where an individual is

invalided out of service before completion of his service

period on account of disability which is attributable to or

15 aggravated by military service and is assessed below 20%,

he will be granted an award equal to the service element of

disability pension determined in the manner provided in

Regulation 183. Regulation 183 stipulates as under:

Amount of disability pension

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%, he will be granted an award equal to service element of disability pension determined in the manner given in Regulation 183 of the Pension Regulations for the Army Part I (1961)….

29. Thus, as would be evident from the above, the

disability pension consists of two elements i.e. service

16 element and disability element which is determined in the

manner provided in Regulation 183. As per Regulation 173,

disability pension is to 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 and which

is assessed at 20% or over.

30. How the disability which is attributable to or

aggravated by military service has to be determined is

provided in the Entitlement Rules for Casualty Pensionary

Awards, 1982 (briefly ‘the Rules’ hereinafter) which is placed

in Appendix II as referred to in Regulation 173.

31. Rule 4 of the Rules makes it clear that invaliding

from service is a necessary condition for grant of disability

pension. An individual who at the time of his release is in a

lower medical category than that in which he was recruited

will be treated as invalidated from service.

32. Rule 5 of the Rules reads as under:

5. The approach to the question of entitlement to casualty pensionary awards and evaluation

17 of disabilities shall be based on the following presumptions:

Prior to and During Service

(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.

32.1. Thus, what Rule 5 says is that the question of

entitlement to casualty pensionary awards and evaluation of

disabilities shall be based on the presumption that the

concerned member was in sound physical and mental

condition while entering service except as to physical

disabilities noted or recorded at the time of entrance. It is

also to be presumed that in the event of him being

discharged from service on medical grounds, any

deterioration in his health which has taken place is due to

service.

18

33. As per Rule 9, the onus of proof is on the

authority and not on the claimant. Rule 9 specifically says

that a member who is declared disabled from service shall

not be required to prove his entitlement to pension and

such benefit is to be given more liberally. Rule 9 is extracted

hereunder:

Onus of Proof

9. 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.

34. Rule 14(b) is also relevant. It reads as follows:

Diseases

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

(a) *** *** *** ***

(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

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

(c) *** *** *** ***

34.1. Rule 14(b) provides for a legal presumption 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 was made at the time of the individual’s acceptance of

military service. However, if the medical opinion says that

the disease could not have been detected on medical

examination before entering military service, then such a

disease would not be deemed to have arisen during service

provided reasons are recorded.

35. This Court in Dharamvir Singh (supra) examined

the provisions of Regulation 173 and, thereafter, held that

disability pension is to be granted to an individual who is

invalided from service on account of a disability which is

attributable to or aggravated by military service and is

assessed at 20% or above. The question as to whether a

20 disability is attributable to or aggravated by military service

has to be determined under the Rules.

36. In Rajbir Singh (supra), this Court from a conjoint

and harmonious reading of Rules 5, 9 and 14 of the Rules

culled out the following guiding principles:

(i) 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;

(ii) in the event of his being discharged from service on medical grounds at any subsequent stage it must be presumed that any such deterioration in his health which has taken place is due to such military service;

(iii) the 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; and

(iv) if medical opinion holds that the disease, because of which the individual was discharged, could not have been detected on medical examination prior to acceptance of service, reasons for the same shall be stated.

21 37. Government of India, Ministry of Defence through

the Director (Pensions) issued instructions dated

31.01.2001 addressed to the Chief of the Army Staff, Chief

of the Naval Staff and Chief of the Air Staff on the subject

implementation of government decisions on the

recommendations of the fifth central pay commission

regarding disability pension/war injury pension/special

family pension/liberalized family pension/dependent

pension/liberalized dependent family pension for officers

and personnel below the rank of officers belonging to the

armed forces retiring invaliding or dying in harness on or

after 01.01.1996. Para 2.1 mentioned that the provisions

mentioned therein shall apply to the armed forces personnel

who were in service on and from 01.01.1996. Part-II of the

instructions deals with pensionary benefits on

death/disability in attributable/aggravated cases. Para 4.1

says that for determining the pensionary benefits for death

or disability under different circumstances due to

attributable/ aggravated causes, the cases are broadly

categorised under five categories i.e. category A to

22 category E. Category B deals with cases of death or

disability due to causes which are accepted as attributable

to or aggravated by military service as determined by the

competent medical authorities. Examples of disabilities or

diseases attributable to or aggravated by military service

would be diseases contracted because of continued

exposure to a hostile work environment, subject to extreme

weather conditions or occupational hazards.

38. Para 7.2 of the instructions dated 31.01.2001

says that where an armed forces personnel is invalided out

under circumstances mentioned in para 4.1, the extent of

disability or functional incapacity shall be determined for

the purposes of computing the disability element in the

following manner:

Percentage of disability as Percentage to be reckoned assessed by Invaliding for computing of disability Medical Board element Less than 50 50 Between 50 and 75 75 Between 76 and 100 100 23

39. Para 8.2 declares that for disabilities less than

100% but not less than 20%, the above rates shall be

proportionately reduced. However, no disability element

shall be payable for disability less than 20%. In such a case,

provisions contained in para 7.2 would not be applicable for

computing disability element.

40. There is a letter dated 20.07.2006 of the Adjutant

General’s Branch, Integrated Headquarters of Ministry of

Defence(Army) dealing with revision of rules and procedures

regarding grant of disability pension/special family pension

to armed forces personnel. A standard operating procedure

has been laid down by the aforesaid letter. Para 5 of the said

letter mentions that if the resultant disability is held as

attributable to service by the competent authority and

assessed at 20% or more (01% or more in case of post

January 01, 1996 invalidment cases) by the Invaliding

Medical Board/Re-Survey Medical Board, further action

would be taken as per clauses (a) and (b). As per clause (b),

the disability element in cases of invalidment shall be

regulated in terms of para 7.2 of the instructions dated

24 31.01.2001. Therefore, this letter removed the disability cap

of 20% in respect of invalidment due to disability

attributable to military service cases post 01.01.1996.

41. This takes us to the letter dated 19.01.2010 of

the Department of Ex-Servicemen Welfare, Ministry of

Defence, Government of India addressed to the Chiefs of all

the three services. It is stated therein that in order to

consider various issues relating to pension of armed forces

pensioners, government had set up a committee headed by

the cabinet secretary. The committee had made

recommendations on disability/war injury pension which

were considered by the government. Upon such

consideration, it was decided that with effect from

01.07.2009, the concept of broad branding of percentage of

disability/war injury as provided in para 7.2 of the

instructions dated 31.01.2001 would be extended to officers

and armed forces personnel who were invalided out of

service prior to 01.01.1996 and are in receipt of

disability/war injury pension as on 01.07.2009. However, it

was clarified that wherever the disability element/war injury

25 element of pension in pre 01.01.1996 cases were not

allowed for disability being accepted as less than 20% at the

initial stage or subsequent stage on reassessment of the

disability, the same will continue to be disallowed and such

cases will not be reopened.

42. In K.J.S. Buttar (supra), this Court examined para

7.2 of the instructions dated 31.01.2001 which provided

amongst others that where the disability was assessed

between 50% and 75%, then the same should be treated as

75% and it made no difference whether he was invalided

from service before or after 01.01.1996. Appellant in this

case was an ex-captain in the Indian army who was

invalided out of service because of a gunshot injury whereby

he was found to be disabled with degree of disability

assessed at 50% and attributed to military service.

According to the appellant, his disability should have been

treated as 75% instead of 50% in terms of para 7.2 of the

instructions dated 31.01.2001. It made no difference

whether he was invalided from service before or after

01.01.1996. Therefore, this Court held that the appellant in

26 that case was entitled to the said benefits with arrears from

01.01.1996 and interest at 8% per annum on the same.

42.1. Further, this Court after thorough examination of

para 7.2 of the instructions dated 31.01.2001 held that

there will be violation of Article 14 of the Constitution if

those who had retired/were invalided before 01.01.1996 are

denied the same benefits as given to those who retired after

that date. Para 16 is relevant and is extracted hereunder:

16. At any event, we have held that there will be violation of Article 14 of the Constitution if those who retired/were invalided before 01.01.1996 are denied the same benefits as given to those who retired after that date.

43. Dharamvir Singh (supra) is a case where this

Court examined amongst others the question as to whether

a member of armed forces can be presumed to have been in

sound physical and mental condition upon entering service

in the absence of disability or disease noted or recorded at

the time of entrance? That was a case where the appellant

who was a sepoy in the Indian army was boarded out of

service with effect from 01.04.1996 on the ground of

27 20% permanent disability as he was found to be suffering

from generalized seizure (epilepsy). As per the Medical

Board, the said disability was not related to military service.

As a result, he was denied disability pension. His challenge

to the same was accepted by the Single Bench of the High

Court. Single Bench was of the view 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. Therefore, such disease would be deemed to be

attributable to or aggravated by military service. Therefore,

in terms of Regulation 173 of the Regulations, he would be

eligible for disability pension. Union of India challenged the

aforesaid decision of the Single Bench before the Division

Bench. Division Bench set aside the order of the learned

Single Judge whereafter the appellant approached this

Court and in the above context, the aforesaid question was

framed. After referring to relevant provisions of the

Regulations and the Rules, this Court summed up the

principles in the following manner:

28

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

29.1. Disability pension to be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable to or aggravated by military service to be determined under the Entitlement Rules for Casualty Pensionary Awards, 1982 of Appendix II (Regulation

173).

29.2. 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 read with Rule 14(b)].

29.3. The onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for non-entitlement 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).

29.4. 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

29 contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service [Rule 14(c)].

29.5. 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 [Rule 14(b)].

29.6. 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 [Rule 14(b)]; and

29.7. It is mandatory for the Medical Board to follow the guidelines laid down in Chapter II of the Guide to Medical Officers (Military Pensions), 2002.

43.1. Accordingly, this Court answered the question so

framed in favour of the appellant and held in the facts of

that case that no note of any disease was recorded at the

time of the appellant’s acceptance for military service. In the

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

acceptance of joining of the appellant, it was incumbent on

the part of the Medical Board to call for records and look

30 into the same before opining that the disease could not have

been detected on medical examination prior to the

acceptance for military service.

44. This Court in Sukhvinder Singh Vs. Union of

India5, noticed that the relevant Rules and Regulations did

not set out the medical parameters to be considered by the

Invaliding Medical Boards justifying or requiring

serviceman/officer to be removed from service. This feature

renders the decisions taken by such Boards pregnable to

assaults on the grounds of capriciousness or arbitrariness.

This is especially so where the extent of disability is below

20%. Highlighting the paradox, this Court posed the

following question:

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?

44.1. It was in that context, this Court held that any

disability not recorded at the time of recruitment must be

5 (2014) 14 SCC 364

31 presumed to have been caused subsequently and unless

proved to the contrary to be a consequence of military

service. Para 11 reads thus:

11. 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 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 appear 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 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.

32 44.2. As can be seen from the above, this Court

emphasized that the morale of the armed forces requires

absolute and undiluted protection. If any injury leads to loss

of service without any recompense, this morale would be

severely undermined. Further, this Court noticed that there

appeared to be no provision authorising the discharge or

invaliding out of service where the disability is below

20% which is quite logical. Therefore, it has been held that

where 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 20%. Most important is that this Court

after considering the extant Rules and Regulations has held

that a disability leading to invaliding out of service would

attract grant of 50% disability pension.

45. We have already noticed the analysis of Rules 5, 9

and 14 of the Rules in Rajbir Singh (supra). After adverting

to the decision of this Court in Dharamvir Singh (supra), this

Court opined as under:

14. The legal position as stated in Dharamvir Singh case is, in our opinion, in tune with the Pension

33 Regulations, the Entitlement Rules and the Guidelines issued to the Medical Officers. The essence of the rules, as seen earlier, is that a member of the armed forces is presumed to be in sound physical and mental condition at the time of his entry into service if there is no note or record to the contrary made at the time of such entry. More importantly, in the event of his subsequent discharge from service on medical ground, any deterioration in his health is presumed to be due to military service. This necessarily implies that no sooner a member of the force is discharged on medical ground his entitlement to claim disability pension will arise unless of course the employer is in a position to rebut the presumption that the disability which he suffered was neither attributable to nor aggravated by military service.

15. From Rule 14(b) of the Entitlement Rules it is further clear that if the medical opinion were to hold that the disease suffered by the member of the armed forces could not have been detected prior to acceptance for service, the Medical Board must state the reasons for saying so. Last but not the least is the fact that the provision for payment of disability pension is a beneficial provision which ought to be interpreted liberally so as to benefit those who have been sent home with a disability at times even before they completed their tenure in the armed forces.

There may indeed be cases, where the disease was

34 wholly unrelated to military service, but, in order that denial of disability pension can be justified on that ground, it must be affirmatively proved that the disease had nothing to do with such service. The burden to establish such a disconnect 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 is on account of military service or aggravated by it. A soldier cannot be asked to prove that the disease was contracted by him on account of military service or was aggravated by the same. The very fact that he was upon proper physical and other tests found fit to serve in the army should rise as indeed the rules do provide for a presumption that he was disease-free at the time of his entry into service. That presumption continues till it is proved by the employer that the disease was neither attributable to nor aggravated by military service. For the employer to say so, the least that is required is a statement of reasons supporting that view. That we feel is the true essence of the rules which ought to be kept in view all the time while dealing with cases of disability pension.

45.1. Thus, this Court held that essence of the Rules is

that a member of the armed forces is presumed to be in

sound physical and mental condition at the time of his entry

into the service if there is no note or record to the contrary

35 made at the time of such entry. In the event of subsequent

discharge from service on medical ground, any deterioration

in health would be presumed to be due to military service.

The burden would be on the employer to rebut the

presumption that the disability suffered by the member was

neither attributable to nor aggravated by military service. If

the Medical Board is of the opinion that the disease suffered

by the member could not have been detected at the time of

entry into service, the Medical Board has to give reasons for

saying so. This Court highlighted that the provision for

payment of disability pension is a beneficial one which

ought to be interpreted liberally. A soldier cannot be asked

to prove that the disease was contracted by him on account

of military service or was aggravated by the same. The very

fact that upon proper physical and other tests, the member

was found fit to serve in the army would give rise to a

presumption that he was disease free at the time of his

entry into service. For the employer to say that such a

disease was neither attributable to nor aggravated by

36 military service, the least that is required to be done is to

furnish reasons for taking such a view.

46. Referring back to the impugned order dated

26.02.2016, we find that the Tribunal simply went by the

remarks of the Invaliding Medical Board and Re-Survey

Medical Boards to hold that since the disability of the

appellant was less than 20%, he would not be entitled to the

disability element of the disability pension. Tribunal did not

examine the issue as to whether the disability was

attributable to or aggravated by military service. In the

instant case neither has it been mentioned by the Invaliding

Medical Board nor by the Re-Survey Medical Boards that

the disease for which the appellant was invalided out of

service could not be detected at the time of entry into

military service. As a matter of fact, the Invaliding Medical

Board was quite categorical that no disability of the

appellant existed before entering service. As would be

evident from the aforesaid decisions of this Court, the law

has by now crystalized that if there is no note or report of

the Medical Board at the time of entry into service that the

37 member suffered from any particular disease, the

presumption would be that the member got afflicted by the

said disease because of military service. Therefore the

burden of proving that the disease is not attributable to or

aggravated by military service rest entirely on the employer.

Further, any disease or disability for which a member of the

armed forces is invalided out of service would have to be

assumed to be above 20% and attract grant of 50%

disability pension.

47. Thus having regard to the discussions made

above, we are of the considered view that the impugned

orders of the Tribunal are wholly unsustainable in law. That

being the position, impugned orders dated 22.01.2018 and

26.02.2016 are hereby set aside. Consequently, respondents

are directed to grant the disability element of disability

pension to the appellant at the rate of 50% with effect from

01.01.1996 onwards for life. The arrears shall carry interest

at the rate of 6% per annum till payment. The above

directions shall be carried out by the respondents within

three months from today.

38

48. Both the appeals are accordingly allowed.

However, there shall be no order as to cost.

……………………………J. [ABHAY S. OKA]

.……………………………J. [UJJAL BHUYAN]

NEW DELHI;

APRIL 23, 2025.

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