Union of India & Ors Vs. Keshar Singh  Insc 434 (20
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment rendered by a Division Bench of
the Allahabad High Court dismissing the special appeal filed by the appellant
against the order of learned Single Judge. The controversy lies within a very
narrow compass i.e. whether the respondent is eligible to disability pension.
Background facts giving rise to the present dispute is as follows:
The respondent was enrolled as Rifleman on 15.11.1976 and was discharged
from Army on 18.10.1986.
It was found that he was suffering from Schizophrenia and the Medical
Board's report indicated his non-suitability for continuance in army. Medical
Board opined that the disability did not exist before entering service and it
was not connected with service. An appeal was preferred before prescribed
appellate authority which was dismissed on 16.4.1989. Respondent filed a writ
petition which was allowed by learned Single Judge and as noted above by the
impugned judgment the special appeal was dismissed.
Both learned Single Judge and the Division Bench held that it was not
mentioned at the time of entering to army service that the respondent suffered
from Schizophrenia and therefore it was attributable to army service. Both
learned Single Judge and the Division Bench referred to para 7(b) of the
Appendix II referred to in Regulations 48, 173 and 185 of the Pension
Regulations, 1961 to hold that if any disease has led to the individuals
discharge it shall be ordinarily deemed to have arisen in the service if no
note of it was made at the time of individual's acceptance for military
service. Accordingly, it was held that the respondent was entitled to disability
In support of the appeal learned Additional Solicitor General submitted that
both learned Single Judge and the Division Bench have lost sight of para 7(c).
Both 7(b) and 7(c) have to be read together. They read as follows"
"7 (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 detected on medical examination prior to acceptance for service the
disease will not be deemed to have arisen during service.
7(c) If a disease is accepted as having arisen in service, it must also be
established that the conditions of military service determined or contributed
to the onset of the disease and that the conditions were due to the
circumstances of duty in military service."
There is no appearance on behalf of the respondent.
A bare reading of the aforesaid provision makes it clear that ordinarily if
a disease has led to the discharge of individual it shall ordinarily be deemed
to have arisen in service if no note of it was made at the time of individual's
acceptance for military service. An exception, however, is carved out, i.e. if
medical opinion holds for reasons to be stated that the disease could not have
been detected by Medical Examination Board prior to acceptance for service, the
disease would not be deemed to have arisen during service. Similarly, clause
(c) of Rule 7 makes the position clear 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 to the onset of the disease and that the
conditions are due to the circumstances of duty in military service. There is
no material placed by the respondent in this regard.
Reference was also made by learned ASG to Pension Regulations for the Army.
Rule 173 of such Regulations read as follows:
Primary conditions for the grant of disability pension:
"173. Unless otherwise specifically provided a disability pension may
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 percent or above.
The question whether a disability is attributable to or aggravated by
military service shall be determined under rule in Appendix II.
Relevant portion in Appendix II reads as follows:
"2. Disablement or death shall be accepted as due to military service
provided it is certified that (a) The disablement is due to 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;
(b) the death was due to or hastened by- (i) a wound, injury or disease
which was attributable to military service, or (ii) the aggravation by military
service of a wound, injury or disease which existed before or arose during
Note: The Rule also covers cases of death after discharge/invaliding from
3. There must be a casual connection between disablement or death and
military service for attributability or aggravation to be conceded.
4. In deciding on the issue of entitlement all the evidence, both direct and
circumstantial, will be taken into account and the benefit or reasonable doubt
will be given to the claimant. This benefit will be given more liberally to the
claimant in field service case."
Regulation 423 also needs to be extracted. The same reads as follows:
"423. Attributability to Service:
(a) For the purpose of determining whether the cause of a disability or
death is or is not attributable to service, it is immaterial whether the cause
giving rise to the disability or death occurred in an area declared to be a
Field Service/Active Service area or under normal peace conditions. It is,
however, essential to establish whether the disability or death bore a casual
connection with the service conditions. All evidence both direct and
circumstantial, will be taken into account and benefit of reasonable doubt, if
any, will be given to the individual. The evidence to be accepted as reasonable
doubt, for the purpose of these instructions, should be of a degree of cogency,
which though not reaching certainty, nevertheless carry the high degree of
probability. In this connection, it will be remembered that proof beyond
reasonable doubt does not mean proof beyond a shadow of doubt. If the evidence
is so strong against an individual as to leave only a remote possibility in his
favour, which can be dismissed with the sentence "of course it is possible
but not in the least probable" the case is proved beyond reasonable doubt.
If on the other hand, the evidence be so evenly balanced as to render
impracticable a determinate conclusion one way or the other, then the case
would be one in which the benefit of doubt could be given more liberally to the
individual, in cases occurring in Field Service/Active Service areas.
(b) The cause of a disability or death resulting from wound or injury, will
be regarded as attributable to service if the wound/injury was sustained during
the actual performance of "duty" in armed forces. In case of injuries
which were self inflicted or duty to an individual's own serious negligence or
misconduct, the Board will also comment how far the disability resulted from
self-infliction, negligence or misconduct.
(c) The cause of a disability or death resulting from a disease will be
regarded as attributable to service when it is established that the disease
arose during service and the conditions and circumstances of duty in the armed
forces determined and contributed to the onset of the disease. Cases, in which
it is established that service conditions did not determine or contribute to
the onset of the disease but influenced the subsequent course of the disease,
will be regarded as aggravated by the service. 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 service in the armed forces. However, if medical opinion holds, for reasons
to be stated that the disease could not have been detected on medical
examination prior to acceptance for service, the disease will not be deemed to
have arisen during service.
(d) The question, whether a disability or death is attributable to or
aggravated by service or not, will be decided as regards its medical aspects by
a medical board or by the medical officer who signs the death certificate. The
medical board/medical officer will specify reasons for their/his opinion.
The opinion of the medical board/medical officer, in so far as it relates to
the actual cause of the disability or death and the circumstances in which it
originated will be regarded as final. The question whether the cause and the
attendant circumstances can be attributed to service will, however, be decided
by the pension sanctioning authority.
(e) To assist the medical officer who signs the death certificate or the
medical board in the case of an invalid, the C.O. unit will furnish a report
on:- (i) AFMS F-81 in all cases other than those due to injuries.
(ii) IAFY-2006 in all cases of injuries other than battle injuries.
(f) In cases where award of disability pension or reassessment of
disabilities is concerned, a medical board is always necessary and the
certificate of a single medical officer will not be accepted except in case of
stations where it s not possible or feasible to assemble a regular medical
board for such purposes. The certificate of a single medical officer in the
latter case will be furnished on a medical board form and countersigned by the
ADMS (Army)/DMS (Navy)/DMS (Air).
In Union of India and Anr. v. Baljit Singh (1996 (11) SCC 315) this Court
had taken note of Rule 173 of the Pension Regulations. It was observed that
where the Medical Board found that there was absence of proof of the
injury/illness having been sustained due to military service or being
attributable thereto, the High Court's direction to the Government to pay
disability pension was not correct.
It was inter alia observed as follows:
"6......It is seen that various criteria have been prescribed in the
guidelines under the Rules as to when 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 occurred due to 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 are satisfied, necessarily the incumbent is
entitled to the disability pension. This is made ample clear from clause (a) to
(d) of para 7 which contemplates that in respect of a disease the Rules
enumerated thereunder required to be observed. Clause (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 to the onset
of the disease and that the conditions were due to the circumstances of duty in
Unless these conditions 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 sustained while in
service, it was not on account of military service. In each case, when a
disability pension is sought for 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".
The position was again re-iterated in Union of India and Ors. v. Dhir Singh
China, Colonel (Retd.) (2003 (2) SCC 382). In para 7 it was observed as
"7. That leaves for consideration Regulation
53. The said Regulation provides that on an officer being compulsorily
retired on account of age or on completion of tenure, if suffering on
retirement from a disability attributable to or aggravated by military service
and recorded by service medical authority, he may be granted, in addition to retiring
pension, a disability element as if he had been retired on account of
It is not in dispute that the respondent was compulsorily retired on
attaining the age of superannuation. The question, therefore, which arises for
consideration is whether he was suffering, on retirement, from a disability
attributable to or aggravated by military service and recorded by service
medical authority. We have already referred to the opinion of the Medical Board
which found that the two disabilities from which the respondent was suffering
were not attributable to or aggravated by military service. Clearly therefore,
the opinion of the Medical Board ruled out the applicability of Regulation 53
to the case of the respondent. The diseases from which he was suffering were
not found to be attributable to or aggravated by military service, and were in
the nature of constitutional diseases. Such being the opinion of the Medical
Board, in our view the respondent can derive no benefit from Regulation 53. The
opinion of the Medical Board has not been assailed in this proceeding and,
therefore, must be accepted."
The above position was highlighted in Controller of Defence Accounts
(Pension) and Others v. S. Balachandran Nair (2005 (13) SCC 128).
In view of the legal position referred to above and the fact that the
Medical Board's opinion was clearly to the effect that the illness suffered by
the respondent was not attributable to the military service, both the learned
Single Judge and the Division Bench were not justified in their respective
conclusion. The respondent is not entitled to disability pension. However, on
the facts and circumstances of the case, payment already made to the respondent
by way of disability pension shall not be recovered from him. The appeal is allowed
but in the circumstances without any order as to costs.