Neutral Citation No. - 2025:AHC-LKO:23585-DB Court No. - 1 Case :- WRIT - A No. - 2205 of 2025 Petitioner :- Service No. Ss-41331w Capt. Viraj Singh Chaudhary (Retd) Respondent :- Armed Forces Tribunal Regional Bench Lko. Thru. Its Registrar And 2 Others Counsel for Petitioner :- Syed Mohd Mustafa,Ramesh Chandra,Ved Prakash Pandey Counsel for Respondent :- A.S.G.I. Hon'ble Attau Rahman Masoodi,J. Hon'ble Ajai Kumar Srivastava-I,J. 1. Heard learned counsel for the Petitioner and Sri S.B. Pandey, learned Deputy Solicitor General of India assisted by Sri Raj Kumar Singh, learned counsel for Union of India. 2. The petitioner, who was a short commissioned officer, was discharged from service in medical category SHAPE-1. It is averred in the writ petition that despite placing all the medical documents relating to the disability before the concerned medical officer, he failed to take cognizance of the medical documents and on due assessment, the petitioner was classified in SHAPE- 1 medical category. Upon discharge from service on 30.06.2010 in medical category SHAPE-1 as per the routine medical report, the petitioner retired from service, and after two years from the date of his retirement, he was detected with Obsessive Compulsive Disorder (hereinafter referred to as "O.C.D."), which, being related to hearing loss, was understood to be attributable to Military Service, therefore, the petitioner made a representation to the competent authority on 27.09.2021 praying for a de-categorization medical board. It appears that the aforementioned application did not evoke a response. The petitioner reiterated his prayer vide letter dated 01.11.2021 before the higher authority. The matter remained un-attended, as a result whereof, the petitioner having no option but to approach the Armed Forces Tribunal, Regional Bench, Lucknow, instituted an O.A. before the Armed Forces Tribunal, Principal Bench at Delhi. In the meantime, the petitioner had since shifted to Lucknow, therefore, he made an application for transfer of the proceedings from the Armed Forces Tribunal, Principal Bench, Delhi to the Armed Forces Tribunal, Regional Bench, Lucknow. The application so made was allowed, and this is how the matter came to be transferred to the Armed Forces Tribunal, Regional Bench, Lucknow, where the same was registered as Transferred Application No.51 of 2023. The aforesaid transferred application was accompanied by an application, i.e., M.A. No.2629 of 2021, wherein the prayer for condonation of delay of 3963 days was made. The learned Tribunal at Lucknow, upon hearing the matter, was satisfied to hold that the cause shown for condonation of delay was sufficient, therefore, the delay was accordingly condoned. The order passed on the delay condonation application was not assailed by the Union of India in any manner, thus the same has attained finality. The Tribunal thereafter proceeded to adjudicate upon the original application, i.e., T.A. No.51 of 2023, wherein due opportunity was granted to the parties. Upon exchange of pleadings, the matter was heard, and the T.A. has finally been dismissed, inter alia, on the ground that the petitioner, at the time of his medical assessment, was categorized in SHAPE-1. Therefore, any benefit of disability on the strength of such an assessment would not arise. The learned Tribunal further recorded that, in paragraph No.3 of the medical report, the petitioner himself had endorsed "nil" against the said paragraph. Therefore, he had not pointed out any disease which he had suffered on account of Military Service. The learned Tribunal further recorded that the petitioner endorsed "no" against the paragraph which mentioned any disability due to Military Service. Taking all these facts into consideration, the learned Tribunal dismissed the claim petition filed by the petitioner. The petitioner, feeling aggrieved by the judgment/ order passed by the Armed Forces Tribunal on 30.01.2024, filed a review application, which was registered as Review Application No.22 of 2024. The learned Tribunal, having exhaustively dealt with the arguments put forth, finally rejected the review application on the ground that no error apparent on the face of the record in the judgment rendered by it was pointed out by the petitioner. It is in this backdrop that the present writ petition has come to be filed by the petitioner, arising out of the judgment/ order rendered by the learned Tribunal on 30.01.2024 as well as the order passed on the review application rejecting the same on 30.07.2024. 3. Learned counsel for the petitioner has argued that an application was made by him on 27.09.2021 within the ambit of the relevant Rules 7 and 8 of the applicable rules, and for ready reference, the same are extracted here under:- "7. Onus of proof: Ordinarily the claimant will not be called upon to prove the condition of entitlement. However, where the claim is preferred after 15 years of discharge/ retirement/ invalidment/ release by which time the service documents of the claimant are destroyed after the prescribed retention period, the onus to prove the entitlement would lie on the claimant. 8. Post discharge claims: (a) Cases in which a disease was not present at the time of the member's retirement/ discharge from service but arose within 7 years thereafter, may be recognized as attributable to service if it can be established by the competent medical authority that the disability is a delayed manifestation of a pathological process set in motion by service conditions obtaining prior to discharge. (b) In cases where an individual in receipt of a disability pension dies within a period of 7 years from the date of release/ retirement, may be considered to have died of the disease for which he was granted disability pension if it can be so established by the competent medical authority. If the medical certificate as to the cause of the death is not available, other factors and circumstantial evidence would be taken into account." 4. On a close scrutiny of the application, it is clear that the petitioner, who was released from service on 30.06.2010, had made an application to the effect that his medical examination had detected him as suffering from O.C.D. Therefore, the case, being covered within the scope of the aforementioned rules, deserves to be considered for a re-categorization medical board. This representation of the petitioner, as reiterated on 01.11.2021 before the higher authorities, remaining unconsidered, gave rise to a cause. As has been noted hereinabove, not only have the departmental authorities turned a deaf ear to the claim raised by the petitioner, but the learned Tribunal has also rejected the claim petition on grounds more than one, as stated above. The question that crops up for our consideration is as to whether the application made by the petitioner on 27.09.2021 did fall within the scope of Rule 8 for the purposes of grant of the relief as was sought therein or not. 5. We have carefully gone through Rules 7 and 8, which are admittedly applicable to the case at hand. On release of the petitioner from service on 30.06.2010, he was detected with O.C.D., which has specifically been mentioned in the representation. This detection, according to the petitioner, was as per the diagnosis made on 27.09.2012 and 29.10.2012, which clearly fell within the range of the seven year period as prescribed under Rule 8. It is true that, based on the detection of such a disease in the year 2012 itself, the petitioner ought to have availed the remedy before the Tribunal without any delay, but he went on waiting and pursuing the grievance with the departmental authorities. The petitioner approached the Armed Forces Tribunal, Principal Bench, Delhi in the year 2021, which later on came to be transferred to the Armed Forces Tribunal, Regional Bench, Lucknow, as mentioned hereinabove. 6. Learned counsel for the Union of India has reiterated the plea of limitation, particularly with respect to the period prescribed for diagnosis under Rule 8, which mentions a period of seven years. We would have appreciated the argument put forth before us, but the application for condonation of delay was separately dealt with and adjudicated upon by the Tribunal, which order has remained unchallenged by the Union of India so far. That being the position, the argument on the ground of limitation as advanced by the Union of India fails and is hereby rejected. 7. Learned counsel for the Union of India has secondly argued that the petitioner himself, in his representation, has stated that the disease detected in the year 2012 was, as a matter of fact, contracted by him while in Military Service. Therefore, he himself remained invigilant in disclosing the same at the time when the medical check-up was performed before the date of his release. 8. The submission put forth by learned counsel for the Union of India does not impress us, for the reason that the petitioner's discharge from Military Service, was based on a routine check-up. At the relevant point of time, the release medical board was not convened, which would have undertaken an exhaustive examination of the petitioner's medical conditions. There was apparently no such complaint raised by the petitioner either. 9. Be that as it may, once the statutory rule prescribes detection of any such disease within a period of seven years from the date of retirement, and the case at hand demonstrates such a detection within two years of retirement, there is no reason as to why the application for re-categorization medical board may not be entertained and proceeded with. 10. We take note of the fact that Rule 7 of the relevant rules shifts the onus of proof upon the department up to 15 years of retirement to prove that a disease is not aggravated or attributable to Military Service. It is only after a period of fifteen years that the burden would shift upon the claimant to establish his case. The case at hand has been taken up within the period of limitation before the Tribunal and is fully covered under the statutory rules applicable in this behalf. 11. We also take note of the fact that the Tribunal, while rejecting the claim of the petitioner, misdirected itself by overlooking the scope of Rules 7 and 8 and has instead considered something which was unclear. The petitioner, in his representation, has agitated a claim fully protected within the scope of Rules 7 and 8 extracted hereinabove. Thus, in our considered opinion, such a grievance of the petitioner could not be disregarded by the departmental authorities due to any inaction. The argument put forth by learned counsel for the petitioner that his case was fully covered under Rules 7 and 8 of the statutory rules persuades us that the case at hand, being covered within the scope of these rules, deserves to be considered, and the prayer allowed. 12. Accordingly, we hereby set aside the judgment/ order rendered by the Armed Forces Tribunal, Regional Bench, Lucknow in T.A. No.51 of 2023 on 30.01.2024 as well as the order dated 30.07.2024 passed on the Review Application No.22 of 2024. 13. We further direct the competent authority to enter into the exercise of re-categorization medical board for consideration of the petitioner's case, and based on his medical examination, the disability pension admissible, if any, shall be considered and redressed, in accordance with law. 14. It is made clear that we have not expressed anything on the merits of the case. 15. This exercise shall be carried not later than a period of three months. 16. The present writ petition is, accordingly, disposed of. [Ajai Kumar Srivastava-I, J.] [Attau Rahman Masoodi, J.] Order Date :- 24.4.2025 cks/- Digitally signed by :- CHANDRA KANT SINGH High Court of Judicature at Allahabad, Lucknow Bench