UNION OF INDIA AND ANR.versusSH. BALJIT SINGH

A                           UNION OF INDIA AND ANR.
                                          v.
                                 SH. BALTIT SINGH

                                 OCTOBER 11, 1996

B                 [K. RAMASWAMY AND G.B. PATTANAIK, JJ.)

             Service Law:

             Pension Regulations of the Anny, 1961 :
c       Primary conditions for grant of disability pension-Rule 173-Entitle-
  ment to disability pension-Conditions therefor-When disability has oc-
  curred due to wound, injury or diseasr which is attributable to military service
  or existed before or arose during military service and has been and remains
  aggravated during the military servic~So also .the onset of disease arisen in
D servic~Same conditions to be satisfied. .
             CIVIL APPELLATE JURISDICTION: Civil Appeal No.13272 of
    1996.

             From the Judgment and Order dated 31.10.95 of the Himachal
E Pradesh High Court in C.W.P.No.738 of 1995.
             P.P. Malhotra, Wasim Qadri and Ms. Anil Katiyar for the Appel-
    lants.

             Naresh K. Sharma for the Respondent.
F
             The following Order of the Court was delivered :                    •
             Delay condoned.

             Leave granted.
G
             We have heard learned counsel on both sides.

        The respondent was enrolled in the Army as Apprentice on March
  30, 1975 and was appointed in the service on regular basis w.e.f. March 27,
  1977 in the EME 177 Battalion. While he was in service he had sustained
H moder_ately severe injury Abductor Strain [R) Thigh internal Derangement
                                     626
                          U.0.1. v. BAUIT SINGH                           627

[R] knee on April 17, 1979 and was adniitted to Military Hospital, Habina         A
where he was downgraded to medical category CEE [temporary) w.e.f.
August 11, 1979, by a duly constituted Medical Board of doctors. He was
discharged from the Military Hospital, Habina on August 12, 1979. On May
10, 1981, the Medical Board of doctors found him physically incapacitated
and reported in February 1980 in Psychfatric OPD where he ;-vas diagnosed         B
to have a "Neurosis Superimposed on an immature histrionic persouabity".
He was recommended to be invalidated out of service. He was discharged
from service by consent as an invalidated man on May 31, 1981. He filed
W.P. No.738 of 1995 in the High Court of Himachal Pradesh at Shimla and
in the impugned judgment dated October 31, 1995, the High Court directed
the appellants to pay him disability pension. Thus this appeal by special         C
leave.

       Shri. P.P. Malhotra, learned senior counsel appearing for the appel-
lants, contended that under Rule 173 of the primary conditions for grant
of di&ability pension, as per the Pension Regulations of the Army, 1961,          D
[for short, the ".Pension Regulations"], unless otherwise specifically
provided, a disability pension may be granted to an individual who is
invalidated from service on account of a disability which is attributable to
or aggravated by military service and is assessed at 20% or over. In this
case, after examination of the respondent by the Board of Doctors, as per
Col. 2 [iii] it was reported that the injury was not connected with the service   E
and as a result he cannot be declared to have suffered injury due to the
service. Mr. Naresh K. Sharma, learned counsel for the respondent, con-
tends that the respondent had joined the service and while he was in
service, he sustained injury and that, therefore, he is entitled to disability
pension. He places reliance on para 2 [ii] of the Entitlement Rules,              F
[Appendix II at page 53 of the paper book). At page 55, Col. [ii] indicates
that the disablement is due to a wound, injury or disease which [i] is
attributable to military service; or [ii] existed before or arose during
military service and has been and remains aggravated thereby.

       He further contends that as per the medical report the injury was G
sustained by him while he was in service and that, therefore, it has been
presumed that it was during service and accordingly must be attributable
to military service. On a consideration of the rules, we think that the
contention of Shri Malhotra merits acceptance. It is seen that various
criteria have been prescribed in the guidelines under the Rules as to when H
    628                   SUPREME COURT REPORTS (1996] SUPP. 7 S.C.R.
A the disease or injury is attributable to the military service. It is seen that
    under Rule 173 disability pension would be computed only when disability
    has occured due to a wound, injury or disease which is attributable to
    military service or existed before or arose during military service and has
    been and remains aggravated during the military service. If these conditions
B   are satisfied, necessarily the incumbent is entitled to the disability pension.
    This is made amply clear from clauses [a] to [d] of paragraph 7 which
    contemplates that in respect of a disease the Rules enumerated thereunder
    require to be observed. CL [c] provides that if a disease is accepted as
    having arisen in service, it must also be established that the conditions of
    military service determined or contributed the onset of the disease and that      c::
C   the conditions were due to the circumstances of duty in military service.
    Unless these conditions are satisfied, it cannot be said that the sustenance
    of injury per se is on account of military service. In view of the report of
    the Medical Board of doctors, it is not due to military service. The
    conclusion may not have been satisfactorily. reached that the injury though
D   sustained while in service, it was not on account of military service. In each
    case, when a disability pension is sought for and made a claim, it must be
    affirmatively established, as a fact, as to whether the injury sustained was .
    due to military service or was aggravated which contributed to invalidation
    for the military service. Accordingly, we are of the view that the High Court
    was not totally correct in reaching that conclusion. However, having regard
E   to the facts and circumstances of this case, we do not think that it is an
    appropriate case for interference.

             The appeal is accordingly dismissed with the above findings. No
    costs.

F   G.N.                                                     .Appeal dismissed.



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