At, High Court of Punjab and Haryana
By, THE HONOURABLE MR. JUSTICE R.L. ANAND
For the Appellant: K.S. Grewal, Advocate. For the Respondent: Gurpreet Singh, Advocate.
The petitioner has filed the present writ petition under Article 226 of the Constitution of India, seeking a writ in the nature of mandamus directing the respondents to sanction and pay the disability pension to him w.e.f. 26.5.1992 and the case set up by the petitioner is that he was enrolled in the Army on 29.11.1978, after due medical examination and he was placed in category A-1. On 25.5.1982, the petitioner medically boarded out from service in medical category EEE due to the disease Epilepsy Grand Mal. The petitioner prayed for the grant of disability pension, which was rejected by the Controller of Defence Accounts (Pensions) on 23.9.1982. The petitioner, again, made a representation in the year 1987, which was rejected by the Record Office. On 19.7.1982, the petitioner made a request for constituting the Re-survey Medical Board. The petitioner was medically examined. The Record Office submitted the proceeds to the CCDA (Pensions), for re-consideration due to post-retirment increase in disease. The claim of the petitioner was again turned down on 8.2.1989.2. Notice of the writ petition was given to the respondents and the stand of the respondents is that the disability suffered by the petitioner is not attributable to the Army Service and as such, the petitioner is not entitled to the disability pension.3. I have heard the counsel for the parties and with their assistance have gone through the record of this case.4. Counsel for the respondents has relied upon a judgment of the Hon'ble Supreme Court reported in 1997(1) SLR 98, Union of India v. Balbir Singh and submitted that it cannot be readily inferred in favour of the petitioner that the disability is attributable to the military service unless it is established by the petitioner.5. There is no dispute with the proposition of law as laid down by the Hon'ble Supreme Court in the cited case. It is for the petitioner to establish that the disability which he has incurred is attributable to the Army Service or it has been aggravated during the course of military service. The onus, though is on the petitioner, but this onus is lighter and can be discharged if the petitioner successfully shows to the Court that at the time of enrolment into the Army, he was not suffering from any illness. It is the case of the petitioner that when he joined the Army, he was placed in category A-1, i.e. he was immune from any serious disease. When the petitioner was serving in the Army, he developed the trouble and, therefore, it can be readily inferred in favour of the petitioner that the disability suffered by him was due to the Army Service. Counsel for the respondents has not been able to show from the record that at the time of enrolment of the petitioner, there was any negative note against him. In 1996(3) SCT 87 (P&H), Ex-Sepoy Hoshiar Singh v. Union of India and others, it was held that whether disability is attributable to or aggravated by military service has to be decided in accordance with Rule 7(b) of Appendix II to the Regulations and when it is shown that the petitioner was physically fit at the time of his enrolment and that there was no finding of any medical board at that time, it has to be interred that the disability suffered by the petitioner was attributable to the Army Service. The cited case was also a case of Neurosis and Epilepsy. The record proves that the disease suffered by the petitioner developed during the service. In these circumstances, it has to be held that the disability suffered by the petitioner was attributable to the Army Service.6. It was also one of the contentions of the counsel for the respondents that the petitioner did not file the statutory appeal and, therefore, he cannot avail the remedy of writ petition.7. The argument of the counsel for the respondents is totally devoid of any merit. The rules do not compel a person that before approaching the High Court, he must file the statutory appeal. The challenge has been given by the petitioner to the rejection of his claim by the CCDA (Pensions) and, thereafter the cause of action arose to the petitioner on the date of the rejection of his claim.8. In this view of the matter, by relying upon the judgment i
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n Ex-Sepoy Hoshiar Singh's case (supra), I allow this writ petition, set aside the impugned order and give directions to the respondents to release the disability pension to the petitioner within three months from the receipt of copy of this order, failing which the petitioner shall also be entitled to interest @ 12% per annum. The petitioner is directed to appear before the Re- survey Medical Board as and when called upon by the respondent-authorities.9. No costs.