Judgment:
CWP No.12579 of 2012 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.12579 of 2012 Date of decision: 26.5.2014 Hakam Singh .....Petitioner VERSUS Union of India and others .....Respondents CORAM: HON'BLE Mr.JUSTICE HEMANT GUPTA HON’BLE Mr.JUSTICE FATEH DEEP SINGH Present: Mr.R.A.Sheoran, Advocate for the petitioner Mr.D.S.Bishnoi, Advocate for the respondents ******* HEMANT GUPTA, J.(Oral) Challenge in the present writ petition is to an order dated 13.04.2012 passed by the Armed Forces Tribunal, Regional Bench Chandigarh at Chandimandir, whereby claim of the petitioner for disability pension was rejected.
The petitioner was found to be diagnosed with disability “Hepato Intestinal Amoebiasis”.However, there is nothing on record that the Medical Board has opined that such disease could not be diagnosed at the time of the petitioner's entering into army service.
The issue as to whether disability pension can be declined even in the absence of the opinion of the Medical Board that such disease could not be detected at the time of entry into the service has been decided by this Kumar Vimal Court in C.W.P.No.7277 of 2013 titled as Ex.
Naik Umed Singh v.
Union of 2014.06.02 15:15 I attest to the accuracy and integrity of this document Chandigarh CWP No.12579 of 2012 2 India and otheRs.decided on 14.05.2014.
It has been held that in the absence of the reasons recorded by the Invalidating or Review Medical Board that the disease could not be detected at the time of entry into Government Service, the claim for disability pension could not be declined.
The relevant extract from the judgment reads as under:- “.....Therefore, in view of the judgment in Dharamvir Singh’s case (supra).we have no hesitation to hold that if no note is given of any disease at the time of acceptance of an individual into service, the disease would be deemed to have arisen in service.
The Invalidation Medical Board or Review Medical Board has to record a categorical opinion that the disease, the reason of invaliding out of service could not have been detected on medical examination at the time of enrollment.
In the absence of any such finding of the Medical Board, the disease would be deemed to have arisen in service.”
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Still further, the Government of India vide letter dated 31.01.2001, circulated that the persons who are entitled for less than 50% disability should be computed as disability element as 50%; whereas in respect of disability between 50-75% the said element should be 75% and between 76-100%, the pension amount should be computed at the rate of 100%.
It has been held by the Hon'ble Supreme Court in Civil Appeal No.5591 of 2006 titled as KJ.Buttar versus Union of India, decided on 31.03.2011, that the benefit of the circular is admissible to all armed force personnel and even to those who have retired prior to 1.1.1996.
It has been held that the stand of the respondent is that the disability of the appellant cannot be enhanced to 75% because the relevant provision being para 7.2 of Government of India, Ministry of Defence, letter dated 31.1.2001 is Kumar Vimal 2014.06.02 15:15 I attest to the accuracy and integrity of this document Chandigarh CWP No.12579 of 2012 3 applicable only to those cases where the officer was invalidated out of service after 1.1.1996.
The Court held that the restriction of the benefit to only officers who were invalidated out of service after 01.01.1996 is violative of Article 14 of the Constitution and is hence illegal.
In view of the above, the present petition is allowed.
The impugned order dated 13.04.2012 passed by the Armed Forces Tribunal, Regional Bench, Chandigarh at Chandimandir, is set aside and the respondents are directed to grant disability pension to the petitioner and also to consider rounding off the pension in view of letter dated 31.01.2001 within a period of three months from today.
(HEMANT GUPTA) JUDGE (FATEH DEEP SINGH) 26.05.2014 JUDGE reena/Vimal Kumar Vimal 2014.06.02 15:15 I attest to the accuracy and integrity of this document Chandigarh