Heard the learned counsel for the parties. The petitioner is aggrieved because of the denial of disability pension as well as is seeking relief of rounding off of the disability pension along with award of the disability pension arrears with interest @ 12% per annum.
2. The brief facts of the case are that the petitioner joined the Air Force service on 11th May, 1985 and was discharged from the service w.e.f 30th September, 2005 after completion of 20 years and 4 months and 21 days service. The petitioner was medically fit and had neither disease nor any symptom of disease at the time of his entry into the Indian Air Force service. During service, the petitioner suffered the disease of primary hypertension and he took voluntary retirement and because of his seeking voluntary retirement, he was discharged from the service on 30th September, 2005. Since he was put in low medical category BEE (T-24), therefore, the petitioner is claiming the disability pension in view of Regulation 153 of the Pension Regulations for the Air Force, 1961. It is also submitted that the petitioner is also entitled to rounding off of the pension from 30% to 50% in view of the Government order dated 31st January, 2001. The learned counsel for the petitioner submitted that the petitioner was posted at Suratgarh (Rajasthan), which is a modified field area where the petitioner contacted the disease. It is also submitted that it is not relevant whether the person in service is posted at a field area or a peace area at the time of the onset of the disease. The issue is that whether the individual has suffered the disease due to the military service conditions or not or it is aggravated due to the military service conditions. The learned counsel for the petitioner has submitted that the law has now been settled by various judgments of Hon'ble Supreme Court and particularly the ratio of the decision given in the case of Dharamvir Singh v. Union of India reported in [(2013) 7 SCC 316] holding, that the individual is not required to prove that he suffered the disease due to the military service conditions if, he entered into the service in a fit medical condition and at the time of discharge, he was in low medical category. It is also submitted that the Hon'ble Supreme Court in the case of Sukhvinder Singh v. Union of India [(2014) STPL (Web) 468 SC] also considered various aspects relating to the grant of disability pension in Civil Appeal No. 5605/2010 decided on 25th June, 2014 wherein the same view has been taken by the apex court. In the case of Sukhvinder Singh (supra) it has also been observed by the Hon'ble Supreme Court, that there appears to be no provision authorizing the discharge or invalidating out from service where the disability is below 20% and it was found logical by the Hon'ble Supreme Court, that where a member of the armed forces is invalidated out of service, it perforce has to be assumed that his disability was found to be above 20%. Hon'ble Supreme Court in Sukhvinder Singh case (supra), after reaffirming the view that, if any disability is not on record at the time of recruitment, it must be presumed to have been caused subsequently and unless proved to the contrary, to be a consequence of military service. According to the learned counsel for the petitioner, the ratio of the above judgments has been followed in almost all cases by all Benches of the Tribunal and also it is binding upon all the courts in India.
3. The learned counsel for the petitioner then submitted that one of the grounds given by the respondents while rejecting the petitioner's disability pension claim is that the petitioner sought premature retirement. This reason for rejection has been given in the order dated 26 April, 2006. According to the learned counsel for the petitioner, rejection on this ground is also contrary to the law laid down in the case of Mahavir Singh Narwal v. Union of India reported in [111 (2004) DLT 550] decided by the Hon'ble Delhi High Court wherein it was held, that the voluntarily discharge will not disentitle disability pension to the incumbent and this has been affirmed by the Hon'ble Supreme Court while dismissing the SLP filed by the UOI on 4 January, 2008. The learned counsel for the petitioner drew our attention to the MOD I.D Note No. B/40602.AGPS(Legal)/Dy. No. 42.D(Pen-Legal)/10 (Annexure R. 1) dated 19 January, 2010 wherein the respondents have stated that the issue of grant of disability pension to the armed forces personnel who took voluntary retirement was considered in the light of the judgment of Mahavir Singh Narwal (supra) and it has been decided that such benefit be given to the armed forces personnel who sought voluntary retirement who file case in the court till a final decision is taken by the Government. According to the learned counsel for the petitioner, in view of the Government's own recommendation dated 19 January, 2010, the armed forces personnel who sought voluntary retirement and were in low medical category are entitled to the disability pension. However, it is also submitted that even such decision had not been taken, such armed forces personnel are entitled to the benefit because of the decision of Mahavir Singh Narwal (supra) case.
3. The learned counsel for the respondents submitted that the petitioner was posted in a peace area and Suratgarh cannot be said to be a field area. It is submitted that the Medical Board considered the case of the petitioner after a thorough examination of the petitioner and thereafter held that the petitioner's disease is “constitutional in nature” and there is no indication that the petitioner suffered the disability due to the military service conditions or the disease was aggravated due to the military service conditions. The learned counsel for the petitioner drew our attention to Regulation 158 of the Pension Regulations for the Air Force, 1961 wherein it is clearly mentioned that an individual who is discharged from service otherwise than at his own request, he is entitled to the disability pension. Therefore, the petitioner's claim was rightly rejected and it is in accordance with Regulation 158 of the Regulations of 1961.
4. We have considered the submissions of the learned counsel for the parties and perused copies of the Medical Board proceedings placed on record as well as the observations made by the Medical Board, shown by the learned counsel for the respondents from their record, which was made available before us. Indisputably, the petitioner had no disease at the time of his enrolment in the Indian Air Force when he joined the service on 11 May, 1985. The petitioner suffered the disease of primary hypertension, which is one of the diseases mentioned in para 32 of Appendix II of Entitlement Rules for Casualty Pensionary Awards, 1982 and the disease of hypertension is under the heading (b) of Rule 14 also. When the disease of hypertension has been included in the List of Diseases which can occur due to military service conditions or such disease can be aggravated by the military service conditions, then in that situation, it was a heavy burden upon the Medical Board to give reasons for holding that the disease of the individual is found not attributable to or aggravated by the service conditions. This is all the more necessary because of the reason that the Hon'ble Supreme Court in Dharamvir Singh case and Mahavir Singh Narwal case, after considering the Pension Regulations and also other Government orders and the policy decisions, laid down that if a person enters into service in a fit medical condition and suffers some disease during the armed forces service, then in that situation, it is to be presumed that the disease was caused due to the military service conditions, unless proved to the contrary. In this case, the Medical Board has not given any reason even for name sake on the basis of which we can find justification for recording of the conclusion that the petitioner's disease is not attributable or aggravated by the military service conditions.
5. The disease being constitutional in nature has been found to be vague in a large number of cases and reference to one of the cases we may give is OA 59/2011 of In The Matter Of: v. Ex. Mwo Sarjeet Singh Applicant; decided by the Armed Forces Tribunal, Principal Bench, New Delhi, on 1 May, 2014. We have not found from any of the authorities of the Medical Board which says that the constitutional disease cannot be aggravated due to the military service conditions. Therefore, the reason given by the Medical Board is no reason in the eyes of law but the presumption is that petitioner's disease is attributable or aggravated by the military service conditions.
6. In view of the above, it is held that the petitioner's disability of hypertension is having a direct connection with the military service conditions and therefore, the petitioner is entitled to the disability pension. As far as the issue of entitlement of disability pension to the persons who sought voluntary retirement is concerned, that policy has been considered by the Hon'ble Delhi High Court in the case of Mahavir Singh Narwal (supra) and the Government also considered that judgment and started the process to give clarity in the rules and regulations and therefore, it was recommended that the Government agree to implementation of the court orders passed in Mahavir Singh Narwal (supra) case and until a policy is finalized, the disability pension may be granted to the PBOR seeking premature retirement. Further, there is a rider in the said recommendation of the Government which is absent in the ID Note dated 19 January, 2010, a copy of which has been placed on record as Annexure R. 1 and that rider is that the benefit be given to those persons “whenever they file case in the court”. Without questioning such type of decision that the benefit will be given to similarly placed persons only in case they go to the court, even then the petitioner becomes entitled to the relief in view of the said recommendation as the petitioner has also filed this case before the Tribunal. In addition to above, the recommendation is of 19 January, 2010 and more than four and a half years have passed after such recommendation, which has not yet been finally accepted or rejected by the Government and several judgments have already been passed by the court giving the relief to the persons who sought voluntary retirement. Therefore, we are of the view that the petitioner, even if had sought voluntary retirement from service, then also he is entitled to the benefit of the disability pension.
7. So far as rounding off of the pension from 30% to 50% is concerned, in view of the Government of India order dated 31 January, 2001, it is held that the petitioner is entitled to rounding off of the pension to 50%. The petitioner is also held to be entitled to the arrears of the last three years from the date of filing of this OA, which was filed on 6 March, 2014, as we do not find any force in the submission of the learned counsel for the respondents that the Co-ordinate Bench of the Regional Bench of the AFT, Chandigarh, in the case of OA 722/2013 of Kishori Lal v. UOI wherein it has been held that, arrears can be awarded for past six months in view of the recent judgment of the Punjab and Haryana High Court given in the case of Ex Nb. Sub Dharam Pal v. Union of India dated 2nd May, 2014, which has been decided following the decision of the Hon'ble Supreme Court in the case of S.K Mastan Bee v. General Manager, South Central Railway [(2003) 1 SCC 184]; Union of India v. Tarsem Singh [(2008) 8 SCC 648] and the recent judgment of Hon'ble Supreme Court given in Civil Appeal No. 4470/2014 of Madhukar v. State of Maharashtra decided on 11 April, 2014. The petitioner is also entitled to interest @ 12% p.a over the arrears. The OA is allowed accordingly.
8. The learned counsel for the respondents orally prayed for grant of leave to appeal before the Hon'ble Supreme Court to challenge this judgment. We are of the considered opinion that there is no question of law of general public importance involved in this matter and hence the oral prayer of the respondents for leave to appeal is rejected.
9. The order may be given effect within a period of three months from the date of receipt of a copy of this order by the respondents. No order as to costs.