Page No.# 1/16 GAHC010267032018 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/8345/2018 KHOT MANOJ KASHINATH S/O- SHERI KASHINATH, VILLAGE AND P.O. MIRAJWADI, DISTRICT- SANGLY, MAHARASHTRA, PRESENTLY RESIDING AT NOONMATI, GUWAHATI, ASSAM. VERSUS THE UNION OF INDIA AND 2 ORS. REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI- 110001 2:THE DIRECTOR GENERAL OF ASSAM RIFLES SHILLONG MEGHALAYA PIN- 793001. 3:THE COMMANDANT ASSAM RIFLES TRAINING CENTRE AND SCHOOL DIMAPUR NAGALAND PIN- 797103 Advocate for the Petitioner : MS. S BORA, MS. N CHAKRABORTY Advocate for the Respondent : ASSTT.S.G.I., MR H GUPTA (C.G.C., R1-R3) Page No.# 2/16 BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 01.09.2025 Heard Ms. S. Bora, learned counsel for the petitioner. Also heard Mr. H. Gupta, learned CGC for the respondents. 2. In this petition, under Article 226 of the Constitution of India, the petitioner has challenged the letter, dated 06.05.2016, and also prayed for issuing direction to the respondent authorities to release his disability pension. 3. Ms. Bora, learned counsel for the petitioner submits that the petitioner was appointed as Recruit/GD (General Duty) on 12.09.2011, having found him fit in all aspects i.e. medical, physical and written examination, and thereafter, he was asked to report to Assam Rifles Training Centre and School, Dimapur, Nagaland on 14.10.2011, for his basic military training. Ms. Bora also submits that during training, in February, 2012, when 15 kilometers road march was conducted, the petitioner attended the same, but on the next day while he was ready for training, he felt dizzy and fell down, and thereafter, he was admitted to Assam Rifles Training Centre Hospital, Dimapur, Nagaland and after one day, he became fit and started to continue his training. Ms. Bora further submits that however, after 15 days, the petitioner again developed some problems and thereafter, he was referred to Command Hospital, Kolkata and he remained there for about one month and thereafter, he was brought back to the Assam Rifles Training Centre, Dimapur, Nagaland, and this time, he was allowed to work at mess No. of 2 Training Battalion, Dimapur, instead of allowing to complete his military training and he was kept as such for more than eight months without any medical treatment. Ms. Ms. Bora also submits that the Page No.# 3/16 petitioner was not allowed to complete his training in spite of his requests and thereafter, on 31.12.2012, he was served with a discharge letter, showing the reason of discharge on medical ground i.e. seizure disorder, and he was also served with the impugned letter, dated 06.05.2016, stating that disability of seizure disorder is not covered under Central Civil Services (Extraordinary Pension) Rules [‘CCS (EOP) Rules’, for short] and thus, he is not eligible for disability pension, for which the petitioner is suffering irreparable loss, and being aggrieved, the petitioner has approached this Court by filing the present petition seeking the relief, as mentioned herein above. 3.1. Ms. Bora further submits that as per Annexure-R-V, at page No. 45 of the petition, the petitioner’s disability is assessed as ‘seizure disorder’ and the percentage is 20-29%, and he was recommended to be invalidated out of service in LMC -P5. Also, by referring to the Medical Board Proceedings Invalidating in Low Medical Category in respect of the petitioner, at page No. 47 of the petition, Ms. Bora has pointed out that in Part-III of the said report, at question No. 1, there was question - “Does the disability/ies exist before entering service?” and the answer was given as ‘No’. Ms. Bora further submits that the petitioner had developed the disease during the period of his training and as such, in view of the decision of Hon’ble Supreme Court in the case of Bijender Singh vs. Union of India and Ors., in Civil Appeal Nos. 4458-4459 of 2024, and also in view of the decision of a Co-ordinate Bench this Court in WP(C) No. 3001/2020 (Keshav Raj Sharma vs. the Union of India and 2 Ors.), the petitioner is entitled to disability pension, and therefore, Ms. Bora has contended to allow this petition. 4. Per contra, Mr. Gupta, learned CGC for the respondents, by referring to the affidavit-in-opposition dated 25.10.2019, submits that the petitioner was Page No.# 4/16 enrolled in the Assam Rifles on 14.10.2011 and detailed to undergo basic military training at No. 2 Training Battalion, Assam Rifles Training Centre and School, Dimapur, and during the basic training, he had reported sick at Assam Rifles Composite Hospital, Shukhovi on 06.02.2012, with complaints of dizziness and loss of consciousness. Mr. Gupta also submits that thereafter, a detailed medical investigation was carried out and appropriate medical treatment was provided to him by the medical authorities of Assam Rifles Composite Hospital, however, seeing no substantial improvement in his medical condition, he was further referred to Command Hospital (Eastern Command) Kolkata on 02.03.2012, for better medical treatment and further management. Mr. Gupta further submits that after detailed examination carried out at Command Hospital (Eastern Command) Kolkata by Classified Specialist (Medicine) and Neurologist, the petitioner was found to be suffering from seizure disorder, and the Classified Specialist (Medicine) and Neurologist of Command Hospital (Eastern Command) Kolkata in his opinion dated 07.04.2012, recommended to invalid out the petitioner from service in medical category P-5. Mr. Gupta has further pointed out that pursuant to the opinion of the Classified Specialist (Medicine) and Neurologist, the petitioner was boarded out from service w.e.f. 31.12.2012, on medical ground with 20-29% disability and his disability was neither made attributable to nor aggravated by the service conditions as per opinion of the Medical Board. 4.1. By referring to Rule 3-A(1)(a) of the CCS(EOP) Rules, Mr. Gupta submits that the claim to be eligible for grant of disability pension, disablement shall be accepted as due to Government service, provided that it is certified that it is due to wound, injury or disease, which is attributable to Government service, or existed before or arose during Government service and has been and remains Page No.# 5/16 aggravated thereby; and that disability of the petitioner i.e. seizure disorder was not listed in the Schedule-(1)(a) of the CCS(EOP) Rules and therefore, he was found not entitled for disability pension and was not granted the same, and that the petitioner is also not eligible for grant of invalid pension in terms of Rule 49(2)(b) of the CCS (Pension) Rules, 1972, as because he has to render minimum 10 years qualifying service for grant of invalid pension, whereas he had rendered only 1 year 2 months and 17 days service in Assam Rifles, and therefore, the petitioner is neither entitled for disability pension nor for invalid pension as per Rules. 4.2. In support of his submission, Mr. Gupta has referred to a decision of Hon’ble Supreme Court in the case of Union of India and Ors. vs. Vijay Kumar No. 3989606 P, Ex-Naik, reported in (2015) 10 SCC 460. 4.3. Mr. Gupta further submits that the decision of this Court referred by Ms. Bora, learned counsel for the petitioner, in WP(C) No. 3001/2020, is not applicable in the present case as the facts are distinguishable, since in the said case, the petitioner therein suffered from fracture during the course of training, however, in the present case, the petitioner suffered from seizure disorder and the same is not mentioned in the schedule of Rule 3-A(1)(a) of the CCS (EOP) Rules, and on such count, the petition is not maintainable and therefore, it is contended to dismiss the same. 5. 5. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record, and also perused the impugned letter dated 06.05.2016, whereby the prayer for disability pension made by the petitioner was rejected. Also I have gone through the decisions, so referred by learned counsel for both the sides. Page No.# 6/16 6. The basic facts, herein this case, are not in dispute. The petitioner was appointed as Recruit/GD (General Duty) on 12.09.2011, having found him fit in all aspects i.e. medical, physical and written examination, and thereafter, he was asked to report to Assam Rifles Training Centre, Dimapur, Nagaland on 14.10.2011, for his basic military training, and in February, 2012, the petitioner attended 15 kilometers road march, but on the next day, he reported sick. After carrying out medical tests at Assam Rifles Training Centre Hospital, Dimapur, Nagaland and at Command Hospital, Kolkata, he was diagnosed with seizure disorder. Thereafter, vide order dated 31.12.2012, he was discharged/released from Assam Rifles on medical ground. Thereafter, the petitioner had applied for disability pension and the same was denied, vide impugned letter dated 06.05.2016 (Annexure-3). 7. It appears from the stand of the respondent authorities in the affidavit-in- opposition and also from the submission of Mr. Gupta, learned CGC for the respondents, that the petitioner was suffering from disease prior to entering into the service, but the said submission of Mr. Gupta is negated by his own document at page No. 49 of the petition, wherein the Medical Board Proceedings Invaliding in Low Medical Category, in Part-III, in the question No. 1, i.e. “Does the disability/ies exist before entering service?”, the answer is given as ‘No’. And that being so, it has to be presumed that the petitioner had developed the disease during the course of his training and in this regard, a presumption is always available in favour of the petitioner in view of the decision of Hon’ble Supreme Court in the case of Sukhwinder Singh vs. Union of India, reported in (2014) 1 SCC 364. It is to be noted here that in the said case, Hon’ble Supreme Court has held as under: “i. There is a presumption of sound physical and mental Page No.# 7/16 condition at the time of entry into the service. In case of a medical discharge, any deterioration in health is presumed to be due to military service. ii. Diseases leading to discharge are presumed to have arisen during service, if not noted at the entry into service. iii. If a disease could not have been detected at entry, the Medical Board must provide reasons; iv. Burden to establish discontent between the disease and the service in armed forces lies with the employer and the employee need not prove the origin of the disease.” 8. In the instant case, in Part-III, of the Medical Board Proceedings Invaliding in Low Medical Category, of the petitioner in respect of question No. 1, was- “ Does the disability/ies exist before entering service?”. And the answer was given as ‘No’. This goes a long way to show that the petitioner had developed the disease during the period of his training/service. Moreover, nothing has been placed before the Court regarding any noting at the time of his entry into his service, about his disease and that the disease could not be detected at the time of entry and no reason has been provided by the Medical Board, and the respondents herein have failed to discharge its burden to establish discontent between the disease and the service. 9. During the course of argument, Mr. Gupta, learned CGC for the respondents submits that the disease has not been mentioned in the Schedule (1)(a) of Rule 3-A of the CCS (EOP) Rules, yet the said submission left this Court unimpressed as in the Schedule (1)(a), the list of classification of diseases which can be contracted by service cannot be considered as exhaustive. In the SCHEDULE 1-A [ See Rule 3(4) ] following diseases were mentioned:- Page No.# 8/16 I. LIST AND CLASSIFICATION OF DISEASES WHICH CAN BE CONTRACTED BY SERVICE A. Diseases affected by climatic conditions (i) Pulmonary Tuberculosis. (ii) Pulmonary Oedema. (iii) Pulmonary Tuberculosis with pleural effusion. (iv) Tuberculosis - Non-pulmonary. (v) Bronchitis. (vi) Pleurisy, empyema, lung abscess and bronchiectasis. (vii) Lobar pneumonia. (viii) Nephritis (acute and chronic). (ix) Otitis Media. (x) Rheumatism - acute. (xi) Rheumatism - chronic. (xii) Arthritis. (xiii) Myalgia. (xiv) Lumbago. (xv) Frost-bite leading to amputation of limb/limbs. (xvi) Heat Stroke. B. Diseases affected by stress and strain Page No.# 9/16 (i) Psychosis and Psychoneurosis. (ii) Hyperpiesia. (iii) Hypertension (BP). (iv) Pulmonary Tuberculosis. (v) Pulmonary Tuberculosis with pleural effusion. (vi) Tuberculosis - Non-pulmonary. (vii) Mitral Stenosis. (viii) Pericarditis and adherent pericardium. (ix) Endo-carditis. (x) Sub-acute bacterialendo-carditis, including infective endocarditis. (xi) Nyocarditis - acute or chronic. (xii) Valvular disease. C. Diseases affected by dietary compulsions (i) Infective hepatitis (Jaundice). (ii) Diseases of stomach and deodenum. (iii) Worm infestations particularly Guinea worm and round worm infections. (iv) Gastritis. (v) Food poisoning, specially due to tinned food. Page No.# 10/16 (vi) Gastric ulcer. (vii) Duodenal ulcer. (viii) Nutritional Disorders. D. Diseases affected by training, marching, etc. (i) Tetanus, erysipelas, septicaemia and pyaemia, etc., resulting from injuries. (ii) Varicose veins. (iii) Ankylosis and acquired deformities resulting from injuries. (iv) Hernia. (v) Post-traumatic epilepsy and other mental changes resulting from skull injury. (vi) Internal derangement of knee joint. (vii) Burns sustained through petrol fire, kerosene oil, etc., leading to scars and various deformities and disabilities. (viii) Deformities of feet. E. Environmental Diseases (i) Diseases contracted in the course of official duty of attending to a venereal or septicaemic patient or conducting a post-mortem examination. (ii) Diseases contracted on account of handling poisonous chemicals and radiation equipment. II. DISEASES NOT NORMALLY AFFECTED BY SERVICE (i) Malignant disease : Cancer and Carcinoma. Page No.# 11/16 (ii) Sarcoma (except in cases of sarcoma of bone with a history of injury, due to service, on the site of development of the growth). (iii) Epithelioma. (iv) Rodent ulcer. (v) Lymphosarcoma. (vi) Lymphadenoma (Hodgkin's disease). (vii) Leukaemia. (viii) Pernicious anaemia (Addison's anaemia). (ix) Ostoitis deformana (Paget's disease). (x) Gout. (xi) Acromegaly. (xii) Corrhosis of the liver - if alcoholic. EYES (xiii) Errors of refraction. (xiv) Hypermetropia. (xv) Myopia. (xvi) Astigmatism. (xvii) Preshyopia Glaucoma - acute or chronic, unless there is a history of injury due to service or of disease of the eye due to service. Page No.# 12/16 9.1. Admittedly, the diseases, in which the petitioner had suffered from, find no mention in the aforesaid chart. And this is one of the grounds for rejection of the claim of the petitioner. However, in the case of Dharamvir Singh v. Union of India, reported in (2013) 7 SCC 316, it has been held that benefit of doubt must be in favour of the applicant and his disease be considered as attributable to military service. In the said case the petitioner suffered from ‘Generalised Seizure (Epilepsy)’ and he was boarded out from service on the ground of 20% disability and disability pension was denied to him. Hon’ble Supreme Court has, however, directed the respondent authorities to grant him disability pension. 9.2. In the case of Dharamvir Singh (supra) Supreme Court has considered almost all the governing Rules and Regulations and after referring to the same, it summarized the legal position, by taking a view that if no note of disability or any disease has been recorded at the time of an individual’s acceptance in service in the Armed Forces and in a case, where no justifiable reasons are put forth by the medical authorities for not being able to detect the disease at the time of initial joining in the military service, the presumption should be that the disability is attributable to or has arisen during the service, with the onus of proof lying upon the employer to prove non-entitlement of the Disability Pension to the claimant. The relevant extract is contained in paragraph 28 of the said decision, which reads as under:- “28. A conjoint reading of various provisions, reproduced above, makes it clear that: (i) Disability pension to be granted to an individual who is invalidated from service on account of a disability Page No.# 13/16 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 or aggravated by military service to be determined under “Entitlement Rules for Casualty Pensionary Awards, 1982" of Appendix-II (Regulation 173). (ii) 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 r/w Rule 14(b)]. (iii) 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) (iv) 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 contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. [Rule 14(c)]. (v) If no note of any disability or disease was made at the time of individual is acceptance for military service, a disease which has led to an individual is discharge or death will be deemed to have arisen in service. [14(b)] (vi) 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 Page No.# 14/16 Board is required to state the reasons. [14(b)]; and (vii) It is mandatory for the Medical Board to follow the guidelines laid down in Chapter-II of the "Guide to Medical (Military Pension), 2002 - "Entitlement: General Principles", including paragraph 7, 8 and 9 as referred to above. 9.3. From a reading of the aforesaid decision of the Hon’ble Supreme Court, it would in itself make it clear that the Courts are to be guided by the opinion given by the Medical Board to draw a conclusion as to whether a disease has any connection with the military service or not, as the Medical Board bases its assessment on the medical investigations and the clinical profile of an individual. However, before the findings of these experts can be relied upon by the Courts, it must be ensured that justifiable reasons have been recorded in support of medical opinions; else such opinions may be amenable to challenge. 10. Again in the case of Union of India vs. Rajbir Singh –Civil Appeal No. 2904 of 2011, where the petitioner had suffered from Generalised Seizures with 20% disability, and discharged from service and granted disability pension by Armed Forces Tribunal, on appeal being preferred by the Union of India, had dismissed the same, following the proposition of law laid down in the case Dharamvir Singh (supra). 11. In the case of Bijender Singh (supra), in paragraph No. 45.1, Hon’ble Supreme Court has 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 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 Page No.# 15/16 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 military service, the least that is required to be done is to furnish reasons for taking such a view.” 12. Taking note of the aforementioned facts and circumstances, and also considering the submissions of learned counsel for both the parties, and also considering the provision, which being beneficial one, and has to be interpreted liberally, this Court is of the view that the impugned letter, rejecting the disability pension of the petitioner, is illegal and arbitrary and unsustainable and accordingly, the same is interfered with. Though the name of the disease finds no mention in the Schedule 1-A, this court is of the view that the same cannot be exhaustive. It cannot be expected to the legislature had visualized at the time of enacting the said Rules, all such diseases that a person might contract/suffer during service period. Moreover, in spite of the disease being not mentioned in the said Schedule, Hon’ble Supreme Court had directed to grant disability pension in the case of Dharamvir Singh (supra) and in the case of Page No.# 16/16 Rajbir Singh (supra). In arriving at the finding aforesaid, this court has taken into account the proposition of law laid down in the said case. 13. In the result, I find sufficient merit in this petition, and accordingly, the same stands allowed. The impugned letter, dated 06.05.2016, stands set aside and quashed. The respondent authorities are directed to pay disability pension to the petitioner w.e.f. the date of his discharge i.e. 31.12.2012, @ 50% since the disability is assessed at 20-29%, in view of the decision of Hon’ble Supreme Court in the case of Bijender Singh (supra). 14. And drawing premises from the decision in Bijender Singh (supra), it is further provided that the arrear amount shall carry interest @ 6% per annum till the date of payment. 15. In terms of above, this writ petition stands disposed of, leaving the parties to bear their own costs. JUDGE Comparing Assistant