ORDER
Mehtab S. Gill, J.
1. Through the present writ petition, the petitioner seeks a writ in the nature of Certiorari for quashing order dated 10.5.1993, copy Annexure P2, the relevant portion of which reads as under:
” 1. CCDA (Pension) Allahabad has decided that your invaliding disability viz “CNS SEIZURE”
(a) is not attributable to Military Service (b)xx xx xx xx (c)xx xx xx xx 2. No disability pension is, therefore, admissible to you as per the rules." xx xx xx xx
2. The case of petitioner which lie in a narrow compass is that he was discharged in the Lower Medical Category ‘BEE’ with 30% disability from 75 Armed Workshop i.e. last unit which was stationed at Ambala. The petitioner, whose date of birth is 15.1.1964, was enrolled in the Indian Army on 1.1.1985 after having been found medically fit in the medical category ‘AYE’ by the competent authority and was sent for training. After successful training, the petitioner was allocated to 601 EME Battalion.
3. Unfortunately, the petitioner fell sick and was admitted in the Military Hospital, Patiala. He was downgraded to category ‘CEE’ temporary for a period of six months which was reviewed after an interval of six months. Petitioner was further referred to the Army Hospital, Delhi and thereafter continued to serve the unit. The petitioner was posted at 75 Armed Workshop at Ambala where he served upto 30.11.1992. The petitioner was invalided out of the Military Service on 30.11.1992 on the recommendations of the Release Medical Board with 30% disability due to disease ‘CNS SEIZURE’ (INV) in the lower medical category ‘BEE’ permanent. The petitioner claims that he became entitled to disability pension with effect from 1.12.1992. The petitioner was assured by both the units as well as the Record Office officials of Hospital
i.e. Medical Authorities that he would be granted disability pension but to his utter surprise, the same was rejected by the Chief Controller of Defence Accounts (Pension), Allahabad on the ground that the disability was not attributable to Military Service.
4. Feeling aggrieved against the decision of Chief Controller of Defence Accounts (Pension), the petitioner preferred an appeal to the Government of India. on 8.7.1993, copy Annexure P3, but the same was rejected by the Government of India without assigning any reason and merely by stating that the decease is neither attributable nor aggravated by the military service.
5. Respondent No. 3 filed written statement on behalf of respondents Nos. 1 to 6 in which the claim of the petitioner has been refuted. It has been pleaded that the petitioner was enrolled in the Army on 10.1.1985. While serving with 601 EME Battalion, he was downgraded to Medical Category ‘GEE’ (Temporary) with effect from 17.10.1987 due to diagnosis ‘CNS SEIZURE’ (INV) and remained in same medical category till 16.4.1988. Thereafter, he was upgraded to medical category BEE (Permanent) with effect from 16.6.1989. Finally, he was discharged from service because of his unwillingness to continue in alternative employment being permanent law medical category. It has been further averred that although the disability of the petitioner was assessed at 30%, but it was neither attributable to nor aggravated by Military Service and not connected with Military Service being constitutional in origin. It has been vehemently denied that the appeal of the petitioner has been rejected without assigning any reason. It has been further pleaded that the petitioner neither got any injury in the head nor any head infection. The petitioner could not give any proof that the disability started or was caused due to Military Service. It has also been highlighted that the invaliding disease was inherent in the body of the petitioner prior to his enrolment which was further manifested in service.
6. I have heard Mr. B.S. Sehgal, Advocate for the petitioner and Mr. Anil Malhotra, Additional Centre Government Standing Counsel for the Union of India and carefully perusea the annexures produced by both the parties.
7. At the very outset, the learned counsel for the petitioner has argued that the case in hand is squarely covered by the decision of this Court rendered in Civil Writ Petition No. 9256 of 1996, Satish Chander Vasistha v. Union of India and others, on 29.11.1996, Piar Chand v. Union of India and another, 95(4) RSJ page 70 (H&P) and Surjit Singh v. Union of India and another, 1994(1) RSJ page 637; 1994(1) SCT 653 (P&H). The petitioners of cases cited above also suffered from Epilepsy (CNS SEIZURE) and the learned Division Benches after examining the various provisions of para 173 of the Pension Regulations for the Army, 1961 ,-and the Rules in Appendix II to Regulation 173 to Pension Regulations for the Army Part I (1961) allowed the writ petitions and directed the respondents of those cases to calculate and pay disability pension to the petitioners of those cases.
8. Apart from the fact that the case in hand is fully covered by the judicial pronouncements cited above, I do not find any merit in the contention of the respondents that the invaliding disease was inherent in the body of the petitioner prior to his enrolment which was . on manifested during service.
9. In this respect, Rule 14 of the Entitlement Rules for Casualty Pensionary Awards, 1982 which has a direct bearing on the case reads as under :-
“14(a) xx xx xx xx
(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.”
(c) xx xx xx xx
9. The learned counsel for the Union of India could not point out from the record that there existed any such note that the writ petitioner was suffering from the disability at the time of his entry in the Armed Forces or any such note recorded at any subsequent date that the disease in question was such as could not have been detected without medical examination before he had joined the service. In view of these facts, it has to be presumed that the disease the petitioner suffered from and which had led to his discharge, had arisen during his service and as such the same was attributable to his military service.
10. Admittedly, the petitioner as per record has rendered service without any complaint and the disease from which he suffered during his service was not self acquired and after the discharge from the service, he would be left without any means of livelihood. He has to support his family. However, this may not be the sole factor in favourably considering the prayer of the petitioner but definitely in the peculiar circumstances of the case of the petitioner, these added factors cannot be ignored also.
11. In the light of above discussion, the writ petition is allowed. The decision of the respondents contained in Annexure P2 rejecting the petitioner’s claim for disability pension is quashed and it is held that the petitioner is entitled to get disability pension in accordance with relevant Rules. The respondents are directed to calculate the disability pension payable to the petitioner from the date the pension fell due and pay the same within three months of the receipt of a certified copy of this order else the petitioner shall get interest at the rate of 12% per annum from the date of expiry of three months mentioned above till the date of actual payment. The respondents must thereafter continue to pay disability pension on every succeeding month.
12. In the peculiar facts and circumstances of this
case, I make no order as to costs.
13. Petition allowed.
