1. The present case was received by the Tribunal from Hon'ble Delhi High Court on transfer.
2. The petitioner has prayed for quashing of impugned orders No. G-3/57/391/6-2001 dated 23 August, 2001 and No. B/40502/2040/02/AG/PS-4(b) dated 09.12.2003. Further he prays for grant of disability element of pension @ 50% w.e.f. 01.04.2001 along with interest and AGI Scheme.
3. The brief facts of the case are that the petitioner was enrolled in the Army on 24.06.1985. In September, 1992 he was found to be suffering from INTRA CAVERNOUS CAROTID ANEURYSM for which he was operated. He opted for being discharged and underwent a Release Medical Board on 17.01.2001. The Release Medical Board assessed his disability at 40% and the disease as neither attributable to nor aggravated by service. He was granted only service pension.
4. Learned counsel for the petitioner argued that since the disease was non-existent at the time of the petitioner's enrolment, it should be deemed to have arisen while in service, and he is entitled to pension vide para 423 of the “Regulations for Medical Services, 1983.”
5. Learned counsel for the respondents produced the original Release Medical Board proceedings and argued that since the Medical Board has held that the disease suffered by the petitioner was neither attributable to nor aggravated by service, he was not entitled to disability element of pension. He further argued that the petitioner was discharged from service with effect from 01.04.2001 under Army Rule 13(3) Item III(V) read in conjunction with Sub-rule 2-A, being placed in medical category lower than ‘AYE’ having rendered 15 years and 281 days of service. The petitioner was discharged as he was unwilling to continue to serve further and not purely on medical grounds.
6. We have considered the arguments of both the sides and have examined the case in detail. We feel that this case is governed by Para 423 of Regulations for Medical Service, 1983 and the judgement given by this Bench in the case of Nakhat Bharti v. Union of India (T.A. No. 48/2009) whereby it has been held that since no record of disease has been noted at the time of enrolment and no medical reasons have been stated for the disease for not having been detected on medical examination prior to acceptance in service, the disease will deem to have arisen during the service, which in this case was in September, 1992.
7. The case is also governed by para 173-A of the Pension Regulations for the Army, 1961 which states that an “Individual who is placed in a lower medical category other that ‘E’ permanently and who are discharged because of no alternative employment in their own trade/category suitable to his low medical category could be provided or who are unwilling to accept the alternative appointment or who having retained in alternative appointment have been discharged before completion of his engagement, shall be deemed to have been invalided from service for the purpose of the entitlement rules laid down in Appendix II to these Regulations”. In this case, the petitioner being a Havlidar was discharged on medical grounds after 15 years and 281 days of service.
8. In view of the foregoing, we uphold the contention of the petitioner and direct that disability element @ 40% as per the Medical Board proceedings be granted with effect from his date of retirement. Consequently, financial dues which may accrue, also be paid with interest @ 12% to the petitioner within 90 days of this order. No order as to costs.