Bijender Singh vs. Union Of India

2025 INSC 549

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4458-4459 OF 2024

BIJENDER SINGH APPELLANT(S)


VERSUS

UNION OF INDIA & ORS. RESPONDENT(S)


J U D G M E N T

UJJAL BHUYAN, J.
Heard learned counsel for the parties.
2. Subject matter of both the civil appeals is the
same. Therefore, both the appeals are being disposed of by
this common judgment and order. However, for the sake of
convenience, we refer to the facts mentioned in Civil Appeal
No. 4458 of 2024.
Signature Not Verified
Digitally signed by
KAVITA PAHUJA
Date: 2025.04.23
17:13:26 IST
Reason:


2.1. This is an appeal under Section 30 of the Armed
Forces Tribunal Act, 2007 against the order dated
22.01.2018 passed by the Armed Forces Tribunal,
Chandigarh Regional Bench in R.A. No. 20 of 2016 in O.A.
No. 3977 of 2013 as well as the order dated 26.02.2016
passed by the Armed Forces Tribunal, Chandigarh Regional
Bench in O.A. No. 3977 of 2013.
3. Be it stated that appellant as the applicant had
filed O.A. No. 3977 of 2013 before the Armed Forces
Tribunal, Chandigarh Regional Bench (‘Tribunal’ for short)
under Section 14 of the Armed Forces Tribunal Act, 2007
(briefly ‘the 2007 Act’ hereinafter) contending that he was
entitled to the disability element of disability pension on
account of his disability attributable to military service,
rounding off of his disability to 50%. By the order dated
26.02.2016, Tribunal held that disability of the appellant
was less than 20%. Therefore, no relief could be granted to
the appellant. Resultantly, O.A. No. 3977 of 2013 was
dismissed.
2


4. Appellant filed a review application under Rule 18
of the Armed Forces Tribunal (Procedure) Rules, 2008 for
review of the order dated 26.02.2016. The same was
registered as R.A. No. 20 of 2016. By order dated
22.01.2018, Tribunal held that there was no ground to
review the order dated 26.02.2016 and, accordingly,
dismissed the review application. Request made by the
appellant for grant of leave to appeal was declined.
5. Aggrieved thereby, appellant has preferred the
present civil appeal. Notice in this case was issued on
13.08.2018. In the hearing held on 19.03.2024, leave to
appeal under Section 31(1) of the 2007 Act was granted.
Delay in filing the appeal was condoned.
6. Relevant facts may be briefly noted.
7. Appellant was enrolled in the army on
30.09.1985. He was invalided out from service w.e.f.
14.08.1989 on account of low medical category for the
disease generalized tonic clonic seizure old 345 V-67
3


assessed at less than 20% on the recommendations of the
Invaliding Medical Board.
8. According to the appellant, he was hale and
hearty when he had joined the army. He had suffered the
aforesaid disability during his posting at high altitude
Siachen glacier from May, 1988 to 20.09.1988. Onset of the
disability was from 09.10.1988.
9. Invaliding Medical Board in its proceedings dated
12.07.1989 opined that the disability was not attributable to
or aggravated by military service; the disability was
assessed for a period of two years.
10. In view of the opinion of the Invaliding Medical
Board, appellant was invalided out from service w.e.f.
14.08.1989. He was granted disability pension consisting of
the service element only since the disability was assessed at
less than 20% and held as not attributable to or aggravated
by military service.
11. Re-Survey Medical Boards were held on
07.08.1993, 23.06.1998 and 28.06.2002. On all the three
4


occasions, Re-Survey Medical Boards had assessed the
disability of the appellant at around 15 to 19% further
observing that such disability was for life.
12. Appellant had submitted representations dated
07.08.2010 and 05.02.2013 before respondent No. 3
requesting the authorities to accept his disability as
attributable to and aggravated by military service and
thereafter to release disability pension (disability element) to
him by assessing the disability at 50% w.e.f. 01.01.1996.
However, there was no response.
13. At that stage, appellant approached the Tribunal
by filing O.A. No. 2322 of 2013. By order dated 13.05.2013,
Tribunal disposed of O.A. No. 2322 of 2013 directing the
respondents to take a decision on the aforesaid
representations by passing a speaking order within four
months.
14. Pursuant to the aforesaid order of the Tribunal
dated 13.05.2013, respondents passed an order dated
5


30.07.2013 rejecting the claim of the appellant for disability
pension.
15. Aggrieved thereby, appellant approached the
Tribunal again by filing O.A. No. 3977 of 2013 seeking the
following reliefs:
(i) to quash the order dated 30.07.2013;
(ii) to quash the recommendation of the
Invaliding Medical Board to the extent that
disability suffered by the appellant was not
considered as attributable to and aggravated by
military service;
(iii) to direct the respondents to release the
disability element of disability pension at the
rate of 50% w.e.f. 01.01.1996 for life with 18%
interest;
iv) to direct the respondents to pay the arrears
of disability element of disability pension w.e.f.
01.01.1996 till full and actual payment.
16. Respondents filed written statement opposing the
claim of the appellant. Contention of the respondents was
that disability of the appellant was found less than 20% by
the Invaliding Medical Board as well as by the Re-Survey
Medical Boards. Therefore, the appellant was not entitled to
6


the grant of disability element of disability pension. As the
disability of the appellant, in any case, was less than 20%
and was neither attributable to nor aggravated by military
service, he was not entitled to such relief.
17. Tribunal vide the impugned order dated
26.02.2016 held that disability of the appellant was less
than 20%. The Invaliding Medical Board as well as Re-
Survey Medical Boards had observed that the disability of
the appellant was neither attributable to nor aggravated by
military service. Therefore, no relief could be granted to the
appellant. Consequently, O.A. No. 3977 of 2013 was
dismissed.
18. Appellant filed R.A. No. 20 of 2016 for review of
the impugned order dated 26.02.2016. It was contended
that Tribunal had not taken into consideration the
judgments relied upon by the appellant. That apart, another
Bench of the Tribunal in which one of the members common
to the Bench which had passed the order dated 26.02.2016
had decided a similar matter by allowing disability pension
7


of the applicant in O.A. No. 908 of 2011 ( Mahal Singh Vs.
Union of India ) vide the order dated 19.12.2014. It was
argued that there being an error apparent on the face of the
record, the order dated 26.02.2016 should be reviewed. On
the other hand, respondents argued that the impugned
order was a well considered one and there was no error
apparent on the face of the record which would justify
review.
18.1. By the order dated 22.01.2018, the Tribunal
dismissed the review application by holding that the
impugned order was a well-considered one and that there
was no error apparent on the face of the record to justify a
review. Tribunal also declined the oral request of the
appellant for grant of leave to appeal.
19. Learned counsel for the appellant submits that
both the orders of the Tribunal dated 26.02.2016 and
22.01.2018 are wholly unsustainable in law. In so far the
review is concerned, Tribunal simply held that there was no
error apparent on the face of the record and, thereafter,
8


dismissed the review application. He submits that another
Bench of the Tribunal in which one of the members was
common had allowed O.A. No. 908 of 2011 ( Mahal Singh Vs.
Union of India ) on 19.12.2014 by granting disability pension
to the applicant therein who was similarly placed like the
appellant.
19.1. In so far the impugned order dated 26.02.2016 is
concerned, the same is contrary to the law laid down by this
1
Court in Dharamvir Singh Vs. Union of India , Union of India
2
Vs. Rajbir Singh and Union of India Vs. Angad Singh
3
Titaria . By ignoring the binding precedents of this Court,
Tribunal had declined the prayer of the appellant to grant
the disability element of disability pension to him.
19.2. Learned counsel submits that the disease or
disability which led to an individual’s discharge will
ordinarily be deemed to have arisen in service if no note of it
was made at the time of his entry into military service.
Medical opinion must disclose cogent reasons as to why the

1
(2013) 7 SCC 316
2
(2015) 12 SCC 264
3
(2015) 12 SCC 257
9


disease or disability is not attributable to military service
though he is invalided out from service on account of such
disease or disability. In the case of the appellant, there is no
note that the disease of generalized tonic clonic seizure old
345 V-67 could not be detected at the time of entry into
service though on account of such disease, appellant was
invalided out of military service in low medical category.
19.3 Learned counsel has also argued that in the
present case, Tribunal did not even consider as to whether
the disease suffered by the appellant is attributable to or
aggravated by military service. This, he submits, itself is an
error apparent on the face of the record. Instead, the entire
focus of the Tribunal was on the issue as to whether the
disability was at 20% or above. Since the Tribunal held that
the disability was less than 20%, it did not consider the core
issue as to whether such disease or disability is attributable
to or aggravated by military service.
19.4. Learned counsel also submits that Tribunal had
overlooked the instructions dated 31.01.2001 which
10


provided for rounding off of disability less than 50% (i.e. 1%
to 49%) to 50%. The condition of minimum 20% disability
required for earning the disability element of disability
pension was abrogated w.e.f. 01.01.1996. The artificial cut-
off date i.e. 01.01.1996 has already been set aside by this
4
Court in K.J.S. Buttar Vs. Union of India . Therefore, the
finding of the Tribunal that since the disability of the
appellant was less than 20%, no relief could be granted to
him is clearly unsustainable in law.
19.5. Learned counsel submits that Tribunal also failed
to appreciate the letter dated 20.07.2006 of the Ministry of
Defence, Government of India clarifying that even if a person
has been invalided out from service and having 1%
disability, he would still be entitled for commuting the
benefit of disability element at the rate of 50%. Failure to
consider the aforesaid letter has vitiated the impugned
order.

4
(2011) 11 SCC 429
11


19.6. Learned counsel, therefore, submits that in any
view of the matter, both the impugned orders are liable to be
set aside and quashed. Consequently, respondents should
be directed to grant the disability element of disability
pension to the appellant with applicable interest w.e.f.
01.01.1996.
20. Learned counsel for the respondents on the other
hand submits that case of the appellant was duly
considered. Since his disability was assessed at less than
20%, he could not be granted the disability element of
disability pension. Appellant was provided an opportunity to
prefer an appeal against the rejection of disability pension.
Instead of preferring an appeal before the appellate
authority within the specified period, appellant submitted a
representation to the Government of India, Ministry of
Defence for grant of disability pension. After considering the
representation in the light of the relevant rules, Government
of India, Ministry of Defence rejected the same.
12


20.1. He further submits that the disease or the
disability of the appellant was assessed by the Medical
Board as neither attributable to nor aggravated by military
service.
20.2. Finally, learned counsel submits that the appeal
filed by the appellant is devoid of any merit and the same is
liable to be dismissed.
21. Submissions made by learned counsel for the
parties have been duly considered.
22. Let us first deal with the proceedings of the
Invaliding Medical Board dated 12.07.1989. The Medical
Board carefully examined the appellant who was being
released/invalided out of service in low medical category for
generalized tonic clonic seizure (old) 345 V-67 . The Board
opined that appellant was in good bodily health and had the
prospect of an average duration of life. He was, therefore,
recommended for extended insurance cover by Army Group
Insurance after his release/invalidment. In part III of the
proceedings which is marked as confidential, the answer of
13


the Medical Board to the question as to whether the
disability/disabilities of the appellant existed before entering
service was a clear no. Again, answer to the question as to
whether disability was attributable to the appellant’s
negligence or misconduct, was a categorical no. Percentage
of disablement was assessed at 15% for a probable duration
of two years.
23. In the Re-Survey Medical Board proceedings
dated 07.08.1993, the aforesaid disability was assessed at
less than 20% (15 to 19%) for 5 years.
24. The above view was reiterated in the Re-Survey
Medical Board proceedings held on 23.06.1998 where the
disability was again assessed between 15 to 19% for a
period of 10 years.
25. Finally, in the Re-Survey Medical Board
proceedings dated 28.06.2002, the disability was assessed
at being static i.e. 15 to 19% with the further remark that
duration of such disability would be lifelong.
14


26. We may now deal with the relevant provisions of
the Pension Regulations for the Army, 1961 (briefly ‘the
Regulations’ hereinafter).
27. Regulation 173 deals with the primary condition
for the grant of disability pension. Regulation 173 reads
thus:
Primary conditions for the grant of disability
Pension
173. Unless otherwise specifically provided a disability
pension consisting of service element and disability
element may be granted to an individual who is
invalided out of service on account of a disability
which is attributable to or aggravated by military
service in non-battle casualty and is assessed at 20
per cent or over.
The question whether a disability is attributable to
or aggravated by military service shall be determined
under the rule in Appendix II.

28. Regulation 183 of the Regulations says that the
disability pension consists of two elements viz service
element and disability element. Where an individual is
invalided out of service before completion of his service
period on account of disability which is attributable to or
15


aggravated by military service and is assessed below 20%,
he will be granted an award equal to the service element of
disability pension determined in the manner provided in
Regulation 183. Regulation 183 stipulates as under:
Amount of disability pension

183. The disability pension consists of two elements viz.
service element and disability element, which shall be
assessed as under: -

(1) Service element

(2) Disability element

In case where an individual is invalidated out of
service before completion of his prescribed
engagement/service limit on account of disability
which is attributable to or aggravated by military
service and is assessed below 20%, he will be granted
an award equal to service element of disability
pension determined in the manner given in
Regulation 183 of the Pension Regulations for the
Army Part I (1961)….

29. Thus, as would be evident from the above, the
disability pension consists of two elements i.e. service
16


element and disability element which is determined in the
manner provided in Regulation 183. As per Regulation 173,
disability pension is to be granted to an individual who is
invalided out of service on account of a disability which is
attributable to or aggravated by military service and which
is assessed at 20% or over.
30. How the disability which is attributable to or
aggravated by military service has to be determined is
provided in the Entitlement Rules for Casualty Pensionary
Awards, 1982 (briefly ‘the Rules’ hereinafter) which is placed
in Appendix II as referred to in Regulation 173.
31. Rule 4 of the Rules makes it clear that invaliding
from service is a necessary condition for grant of disability
pension. An individual who at the time of his release is in a
lower medical category than that in which he was recruited
will be treated as invalidated from service.
32. Rule 5 of the Rules reads as under:
5. The approach to the question of entitlement
to casualty pensionary awards and evaluation
17


of disabilities shall be based on the following
presumptions:

Prior to and During Service
( a ) member is presumed to have been in sound
physical and mental condition upon entering
service except as to physical disabilities noted
or recorded at the time of entrance.
( b ) In the event of his subsequently being
discharged from service on medical grounds
any deterioration in his health which has
taken place is due to service.

32.1. Thus, what Rule 5 says is that the question of
entitlement to casualty pensionary awards and evaluation of
disabilities shall be based on the presumption that the
concerned member was in sound physical and mental
condition while entering service except as to physical
disabilities noted or recorded at the time of entrance. It is
also to be presumed that in the event of him being
discharged from service on medical grounds, any
deterioration in his health which has taken place is due to
service.
18


33. As per Rule 9, the onus of proof is on the
authority and not on the claimant. Rule 9 specifically says
that a member who is declared disabled from service shall
not be required to prove his entitlement to pension and
such benefit is to be given more liberally. Rule 9 is extracted
hereunder:
Onus of Proof
9. The claimant shall not be called upon to prove
the conditions of entitlements. He/she will
receive the benefit of any reasonable doubt. This
benefit will be given more liberally to the
claimants in field/afloat service cases.

34. Rule 14(b) is also relevant. It reads as follows:
Diseases
14. In respect of diseases, the following rule
will be observed:
( a )
( 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
19


detected on medical examination prior to
acceptance for service, the disease will not
be deemed to have arisen during service.
( c )

34.1. Rule 14(b) provides for a legal presumption that 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 of
military service. However, if the medical opinion says that
the disease could not have been detected on medical
examination before entering military service, then such a
disease would not be deemed to have arisen during service
provided reasons are recorded.
35. This Court in Dharamvir Singh (supra) examined
the provisions of Regulation 173 and, thereafter, held that
disability pension is to 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% or above. The question as to whether a
20


disability is attributable to or aggravated by military service
has to be determined under the Rules.
36. In Rajbir Singh (supra), this Court from a conjoint
and harmonious reading of Rules 5, 9 and 14 of the Rules
culled out the following guiding principles:
( i ) a member is presumed to have been in sound
physical and mental condition upon entering service
except as to physical disabilities noted or recorded at
the time of entrance;
( ii ) in the event of his being discharged from service
on medical grounds at any subsequent stage it must
be presumed that any such deterioration in his
health which has taken place is due to such military
service;
( iii ) the 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; and
( iv ) if medical opinion holds that the disease,
because of which the individual was discharged,
could not have been detected on medical
examination prior to acceptance of service, reasons
for the same shall be stated.

21


37. Government of India, Ministry of Defence through
the Director (Pensions) issued instructions dated
31.01.2001 addressed to the Chief of the Army Staff, Chief
of the Naval Staff and Chief of the Air Staff on the subject
implementation of government decisions on the
recommendations of the fifth central pay commission
regarding disability pension/war injury pension/special
family pension/liberalized family pension/dependent
pension/liberalized dependent family pension for officers
and personnel below the rank of officers belonging to the
armed forces retiring invaliding or dying in harness on or
after 01.01.1996. Para 2.1 mentioned that the provisions
mentioned therein shall apply to the armed forces personnel
who were in service on and from 01.01.1996. Part-II of the
instructions deals with pensionary benefits on
death/disability in attributable/aggravated cases. Para 4.1
says that for determining the pensionary benefits for death
or disability under different circumstances due to
attributable/ aggravated causes, the cases are broadly
categorised under five categories i.e. category A to
22


category E. Category B deals with cases of death or
disability due to causes which are accepted as attributable
to or aggravated by military service as determined by the
competent medical authorities. Examples of disabilities or
diseases attributable to or aggravated by military service
would be diseases contracted because of continued
exposure to a hostile work environment, subject to extreme
weather conditions or occupational hazards.
38. Para 7.2 of the instructions dated 31.01.2001
says that where an armed forces personnel is invalided out
under circumstances mentioned in para 4.1, the extent of
disability or functional incapacity shall be determined for
the purposes of computing the disability element in the
following manner:

23


39. Para 8.2 declares that for disabilities less than
100% but not less than 20%, the above rates shall be
proportionately reduced. However, no disability element
shall be payable for disability less than 20%. In such a case,
provisions contained in para 7.2 would not be applicable for
computing disability element.
40. There is a letter dated 20.07.2006 of the Adjutant
General’s Branch, Integrated Headquarters of Ministry of
Defence(Army) dealing with revision of rules and procedures
regarding grant of disability pension/special family pension
to armed forces personnel. A standard operating procedure
has been laid down by the aforesaid letter. Para 5 of the said
letter mentions that if the resultant disability is held as
attributable to service by the competent authority and
assessed at 20% or more (01% or more in case of post
January 01, 1996 invalidment cases) by the Invaliding
Medical Board/Re-Survey Medical Board, further action
would be taken as per clauses (a) and (b). As per clause (b),
the disability element in cases of invalidment shall be
regulated in terms of para 7.2 of the instructions dated
24


31.01.2001. Therefore, this letter removed the disability cap
of 20% in respect of invalidment due to disability
attributable to military service cases post 01.01.1996.
41. This takes us to the letter dated 19.01.2010 of
the Department of Ex-Servicemen Welfare, Ministry of
Defence, Government of India addressed to the Chiefs of all
the three services. It is stated therein that in order to
consider various issues relating to pension of armed forces
pensioners, government had set up a committee headed by
the cabinet secretary. The committee had made
recommendations on disability/war injury pension which
were considered by the government. Upon such
consideration, it was decided that with effect from
01.07.2009, the concept of broad branding of percentage of
disability/war injury as provided in para 7.2 of the
instructions dated 31.01.2001 would be extended to officers
and armed forces personnel who were invalided out of
service prior to 01.01.1996 and are in receipt of
disability/war injury pension as on 01.07.2009. However, it
was clarified that wherever the disability element/war injury
25


element of pension in pre 01.01.1996 cases were not
allowed for disability being accepted as less than 20% at the
initial stage or subsequent stage on reassessment of the
disability, the same will continue to be disallowed and such
cases will not be reopened.
42. In K.J.S. Buttar (supra), this Court examined para
7.2 of the instructions dated 31.01.2001 which provided
amongst others that where the disability was assessed
between 50% and 75%, then the same should be treated as
75% and it made no difference whether he was invalided
from service before or after 01.01.1996. Appellant in this
case was an ex-captain in the Indian army who was
invalided out of service because of a gunshot injury whereby
he was found to be disabled with degree of disability
assessed at 50% and attributed to military service.
According to the appellant, his disability should have been
treated as 75% instead of 50% in terms of para 7.2 of the
instructions dated 31.01.2001. It made no difference
whether he was invalided from service before or after
01.01.1996. Therefore, this Court held that the appellant in
26


that case was entitled to the said benefits with arrears from
01.01.1996 and interest at 8% per annum on the same.
42.1. Further, this Court after thorough examination of
para 7.2 of the instructions dated 31.01.2001 held that
there will be violation of Article 14 of the Constitution if
those who had retired/were invalided before 01.01.1996 are
denied the same benefits as given to those who retired after
that date. Para 16 is relevant and is extracted hereunder:
16. At any event, we have held that there will be
violation of Article 14 of the Constitution if those who
retired/were invalided before 01.01.1996 are denied
the same benefits as given to those who retired after
that date.

43. Dharamvir Singh (supra) is a case where this
Court examined amongst others the question as to whether
a member of armed forces can be presumed to have been in
sound physical and mental condition upon entering service
in the absence of disability or disease noted or recorded at
the time of entrance? That was a case where the appellant
who was a sepoy in the Indian army was boarded out of
service with effect from 01.04.1996 on the ground of
27


20% permanent disability as he was found to be suffering
from generalized seizure (epilepsy). As per the Medical
Board, the said disability was not related to military service.
As a result, he was denied disability pension. His challenge
to the same was accepted by the Single Bench of the High
Court. Single Bench was of the view that there was nothing
on record to show that the appellant was suffering from any
disease at the time of his initial recruitment in the Indian
army. Therefore, such disease would be deemed to be
attributable to or aggravated by military service. Therefore,
in terms of Regulation 173 of the Regulations, he would be
eligible for disability pension. Union of India challenged the
aforesaid decision of the Single Bench before the Division
Bench. Division Bench set aside the order of the learned
Single Judge whereafter the appellant approached this
Court and in the above context, the aforesaid question was
framed. After referring to relevant provisions of the
Regulations and the Rules, this Court summed up the
principles in the following manner:
28


29. A conjoint reading of various provisions,
reproduced above, makes it clear that:
29.1. Disability pension to be granted to an individual
who is invalided from service on account of a
disability which is attributable to or aggravated by
military service in non-battle casualty and is assessed
at 20% or over. The question whether a disability is
attributable to or aggravated by military service to be
determined under the Entitlement Rules for Casualty
Pensionary Awards, 1982 of Appendix II (Regulation
173).
29.2. A member is to be presumed in sound physical
and mental condition upon entering service if there is
no note or record at the time of entrance. In the event
of his subsequently being discharged from service on
medical grounds any deterioration in his health is to
be presumed due to service [Rule 5 read with Rule
14( b )].
29.3. The onus of proof is not on the claimant
(employee), the corollary is that onus of proof that the
condition for non-entitlement is with the employer. A
claimant has a right to derive benefit of any
reasonable doubt and is entitled for pensionary
benefit more liberally (Rule 9).
29.4.
If a disease is accepted to have been as having
arisen in service, it must also be established that the
conditions of military service determined or
29


contributed to the onset of the disease and that the
conditions were due to the circumstances of duty in
military service [Rule 14( c )].
29.5. If no note of any disability or disease was made
at the time of individual's acceptance for military
service, a disease which has led to an individual's
discharge or death will be deemed to have arisen in
service [Rule 14( b )].
29.6. If medical opinion holds that the disease could
not have been detected on medical examination prior
to the acceptance for service and that disease will not
be deemed to have arisen during service, the Medical
Board is required to state the reasons [Rule 14( b )];
and
29.7. It is mandatory for the Medical Board to follow
the guidelines laid down in Chapter II of the
Guide to Medical Officers (Military Pensions), 2002.

43.1. Accordingly, this Court answered the question so
framed in favour of the appellant and held in the facts of
that case that no note of any disease was recorded at the
time of the appellant’s acceptance for military service. In the
absence of any note in the service record at the time of
acceptance of joining of the appellant, it was incumbent on
the part of the Medical Board to call for records and look
30


into the same before opining that the disease could not have
been detected on medical examination prior to the
acceptance for military service.
44. This Court in Sukhvinder Singh Vs. Union of
5
India , noticed that the relevant Rules and Regulations did
not set out the medical parameters to be considered by the
Invaliding Medical Boards justifying or requiring
serviceman/officer to be removed from service. This feature
renders the decisions taken by such Boards pregnable to
assaults on the grounds of capriciousness or arbitrariness.
This is especially so where the extent of disability is below
20%. Highlighting the paradox, this Court posed the
following question:
Can the authorities be permitted to portray that whilst
a person has so minor a disability as to disentitle him
for compensation, yet suffers from a disability that is
major or serious enough to snatch away his
employment?

44.1. It was in that context, this Court held that any
disability not recorded at the time of recruitment must be

5
(2014) 14 SCC 364
31


presumed to have been caused subsequently and unless
proved to the contrary to be a consequence of military
service. Para 11 reads thus:
11. We are of the persuasion, therefore, that firstly ,
any disability not recorded at the time of recruitment
must be presumed to have been caused subsequently
and unless proved to the contrary to be a
consequence of military service. The benefit of doubt
is rightly extended in favour of the member of the
armed forces; any other conclusion would tantamount
to granting a premium to the Recruitment Medical
Board for their own negligence. Secondly , the morale
of the armed forces requires absolute and undiluted
protection and if an injury leads to loss of service
without any recompense, this morale would be
severely undermined. , there appear to be no
Thirdly
provisions authorising the discharge or invaliding out
of service where the disability is below twenty per cent
and seems to us to be logically so. Fourthly , wherever
a member of the armed forces is invalided out of
service, it perforce has to be assumed that his
disability was found to be above twenty per
cent. Fifthly , as per the extant Rules/Regulations, a
disability leading to invaliding out of service would
attract the grant of fifty per cent disability pension.


32


44.2. As can be seen from the above, this Court
emphasized that the morale of the armed forces requires
absolute and undiluted protection. If any injury leads to loss
of service without any recompense, this morale would be
severely undermined. Further, this Court noticed that there
appeared to be no provision authorising the discharge or
invaliding out of service where the disability is below
20% which is quite logical. Therefore, it has been held that
where a member of the armed forces is invalided out of
service, it perforce has to be assumed that his disability was
found to be above 20%. Most important is that this Court
after considering the extant Rules and Regulations has held
that a disability leading to invaliding out of service would
attract grant of 50% disability pension.
45. We have already noticed the analysis of Rules 5, 9
and 14 of the Rules in Rajbir Singh (supra). After adverting
to the decision of this Court in Dharamvir Singh (supra), this
Court opined as under:
14. The legal position as stated in Dharamvir Singh
case is, in our opinion, in tune with the Pension
33


Regulations, the Entitlement Rules and the
Guidelines issued to the Medical Officers. The essence
of the rules, as seen earlier, is that a member of the
armed forces is presumed to be in sound physical and
mental condition at the time of his entry into service if
there is no note or record to the contrary made at the
time of such entry. More importantly, in the event of
his subsequent discharge from service on medical
ground, any deterioration in his health is presumed to
be due to military service. This necessarily implies
that no sooner a member of the force is discharged on
medical ground his entitlement to claim disability
pension will arise unless of course the employer is in
a position to rebut the presumption that the disability
which he suffered was neither attributable to nor
aggravated by military service.
15. From Rule 14( b ) of the Entitlement Rules it is
further clear that if the medical opinion were to hold
that the disease suffered by the member of the armed
forces could not have been detected prior to
acceptance for service, the Medical Board must state
the reasons for saying so. Last but not the least is the
fact that the provision for payment of disability
pension is a beneficial provision which ought to be
interpreted liberally so as to benefit those who have
been sent home with a disability at times even before
they completed their tenure in the armed forces.
There may indeed be cases, where the disease was
34


wholly unrelated to military service, but, in order that
denial of disability pension can be justified on that
ground, it must be affirmatively proved that the
disease had nothing to do with such service. The
burden to establish such a disconnect would lie
heavily upon the employer for otherwise the rules
raise a presumption that the deterioration in the
health of the member of the service is on account of
military service or aggravated by it. A soldier cannot
be asked to prove that the disease was contracted by
him on account of military service or was aggravated
by the same. The very fact that he was upon proper
physical and other tests found fit to serve in the army
should rise as indeed the rules do provide for a
presumption that he was disease-free at the time of
his entry into service. That presumption continues till
it is proved by the employer that the disease was
neither attributable to nor aggravated by military
service. For the employer to say so, the least that is
required is a statement of reasons supporting that
view. That we feel is the true essence of the rules
which ought to be kept in view all the time while
dealing with cases of disability pension.
45.1. Thus, this Court held that essence of the Rules is
that a member of the armed forces is presumed to be in
sound physical and mental condition at the time of his entry
into the service if there is no note or record to the contrary
35


made at the time of such entry. In the event of subsequent
discharge from service on medical ground, any deterioration
in health would be presumed to be due to military service.
The burden would be on the employer to rebut the
presumption that the disability suffered by the member was
neither attributable to nor aggravated by military service. If
the Medical Board is of the opinion that the disease suffered
by the member could not have been detected at the time of
entry into service, the Medical Board has to give reasons for
saying so. This Court highlighted that the provision for
payment of disability pension is a beneficial one which
ought to be interpreted liberally. A soldier cannot be asked
to prove that the disease was contracted by him on account
of military service or was aggravated by the same. The very
fact that upon proper physical and other tests, the member
was found fit to serve in the army would give rise to a
presumption that he was disease free at the time of his
entry into service. For the employer to say that such a
disease was neither attributable to nor aggravated by
36


military service, the least that is required to be done is to
furnish reasons for taking such a view.
46. Referring back to the impugned order dated
26.02.2016, we find that the Tribunal simply went by the
remarks of the Invaliding Medical Board and Re-Survey
Medical Boards to hold that since the disability of the
appellant was less than 20%, he would not be entitled to the
disability element of the disability pension. Tribunal did not
examine the issue as to whether the disability was
attributable to or aggravated by military service. In the
instant case neither has it been mentioned by the Invaliding
Medical Board nor by the Re-Survey Medical Boards that
the disease for which the appellant was invalided out of
service could not be detected at the time of entry into
military service. As a matter of fact, the Invaliding Medical
Board was quite categorical that no disability of the
appellant existed before entering service. As would be
evident from the aforesaid decisions of this Court, the law
has by now crystalized that if there is no note or report of
the Medical Board at the time of entry into service that the
37


member suffered from any particular disease, the
presumption would be that the member got afflicted by the
said disease because of military service. Therefore the
burden of proving that the disease is not attributable to or
aggravated by military service rest entirely on the employer.
Further, any disease or disability for which a member of the
armed forces is invalided out of service would have to be
assumed to be above 20% and attract grant of 50%
disability pension.
47. Thus having regard to the discussions made
above, we are of the considered view that the impugned
orders of the Tribunal are wholly unsustainable in law. That
being the position, impugned orders dated 22.01.2018 and
26.02.2016 are hereby set aside. Consequently, respondents
are directed to grant the disability element of disability
pension to the appellant at the rate of 50% with effect from
01.01.1996 onwards for life. The arrears shall carry interest
at the rate of 6% per annum till payment. The above
directions shall be carried out by the respondents within
three months from today.
38


48. Both the appeals are accordingly allowed.
However, there shall be no order as to cost.


……………………………J.
[ABHAY S. OKA]



.……………………………J.
[UJJAL BHUYAN]

NEW DELHI;
APRIL 23, 2025.

39