17.02.2016
1. After completion of his tenure the petitioner was released from the Indian Army on 31.02.2006. The Release Medical Board found the petitioner suffering from a disability of loss of hearing (bilateral mix deafness) assessed at 20% is neither attributable to nor aggravated by military service. As a result of this, the petitioner was not granted disability pension. The stand of the respondents is that this disease is constitutional in nature. Therefore, it is neither attributable nor aggravated by military service. The issue is no longer res integra. The law is settled in so far as grant of disability pension is concerned, in view of the decision of the apex court in Dharamvir Singh Vs. OA & Ors (2013) 7 SCC 316 which has held as under:
a) the Medical Board is required to indicate if any disease was present at the time of initial recruitment;
b) in case the Medical Board does not indicate the disease at the time of recruitment, then the Release Medical Board must make a note that this disease could not have been detected at the time of initial recruitment. The Board is required to give reasons for the same.
2. In Union of India Vs. Rajbir Singh decided in Civil Appeal No.2904/2011 decided on 13.02.2015, the Apex Court has held as follows :-
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 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;
c) the disease which has led to an individuals discharge or death will ordinarily be deemed to have arisen in service, if no note of it was made at the time of the individuals acceptance for military service; and
d) 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.
3. In view of the aforesaid legal position, we allow the petition, and direct the respondents to release disability pension to the petitioner from the date of discharge rounded off upto 50%. The petitioner, however, will be entitled to the arrears for the last three years. Let this process be completed within a period of three months from today. No order as to costs.
4. Learned counsel for the respondents made an oral request seeking leave to appeal before the Honble Supreme Court. We find no substantial question of law of general public importance involved in the matter. Hence, the request for leave to appeal before the Honble Supreme Court is rejected. ( SUNIL HALI ) MEMBER ( J.N.BURMA ) MEMBER 17/02/2016/cs