W.P.(C) 13219/2025 Page 1 of 8 $~1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 13219/2025, CM APL. 54157/2025 & CM APL. 54158/2025 UNION OF INDIA & ORS. ...Petitioners Through: Mr. Himanshu Pathak, SPC with Mr. Amit Singh, Adv. versus EX HAV BIRENDRA KUMAR SINGH ...Respondent Through: Mr. Raj Kumar , Adv. CORAM: HON'BLE MR. JUSTICE C. HARI SHANKAR HON'BLE MR. JUSTICE OM PRAKASH SHUKLA JUDGMENT (ORAL) % 1 6 .09.2025 C. HARI SHANKAR, J. 1. This petition assails order dated 30 May 2024 passed by the Armed Forces Tribunal 1 in OA 1153/2023 whereby the respon application for grant of disability pension on the ground that he sufers from Primary Hypertension with 30% has ben allowed by the AFT. 2. The issue is covered by a recent decision rendered by us in UOI v Ex Sub Gawas Anil Madso 2 . 3. Nonetheless, we have heard Mr. Himanshu Pathak, learned SPC for the petitioners, and have perused the record. 1 “the AFT”, hereinafter 2 2025 SC OnLine Del 2018 W.P.(C) 13219/2025 Page 2 of 8 4. The respondent was released in Low Medical Category on his being found to be sufering from Primary Hypertension. From the record, including the proceedings of the Release Medical Board 3 , the following facts emerged: (i) The respondent had served in the Indian Army for over 2 4 years before he was diagnosed as sufering from Primary Hypertension. (ii) The respondent, in his self - declaration, specifically declared that he had not ben sufering from Primary Hypertension prior to joining the Indian Army . The declaration reads thus: Did the disability exist before entering service ? (Y/N Could be) NO The corectness of this declaration is not doubted either by the RMB or by the petitioner before the AFT or before this Court. (iii) The reason regarding the Primary Hypertension sufered by the respondent has not ben attributable to military service, as entered by the RMB reads thus: “Primary Hypertension: Onset during Nov 2017 at Zuluk (Sikim), (HA) during induction (1 st stage). Before that Indl was serving in Kolkata (Peace). Hence NANA vide para 43 Chapter VI of GMO 202 as amended 208. ” (iv) We have already held, in our judgment in Gawas Anil 3 “RMB”, hereinafter W.P.(C) 13219/2025 Page 3 of 8 Madso , that where the applicant was not sufering from the ailment at the time of entry into service, the RMB is required to positively identify the cause for the ailment, to justify a finding that it is not attributable to military service. The Comanding Officer’s certificate specificall not responsible, owing to any act or omission of his, for the ailment from which he was sufering. The entry in that regard reads as under: (a) Was the disability atributable to the individual’s own negligence or misconduct? If Yes, in what way? NO (v) Regarding para 43 of the Chapter VI of the GMO 2008, we have, in our judgment in UOI v WO Binod Kumar Sah (Retd 4 ) , observed thus: “12 . Para 43 of the Chapter VI of the GMO 208, vivisected into its individual components, specifies that, while dealing with hypertension, (i) the RMB is required to determine whether the hypertension is primary or secondary, (i) if the hypertension is secondary, entitlement consideration should be directed to the underlying disease proces, (i) where disablement for esential hypertension apears to have arisen to, or become worse in, service, it has to be considered whether service compulsion caused agravation, (iv) in cases where the disease has been reported after long and frequent spels of service in Field/HA/Active Operational Areas, the case could be explained by variable response exhibited by 4 2025 SC OnLine Del 2355 W.P.(C) 13219/2025 Page 4 of 8 diferent individuals to stresful situations and (v) primary hypertension would be considered agravated if it occured while the oficer was serving in field areas, HA, CIOPS areas or prolonged afloat service.” (vi) The RMB has certified the respondent as sufering from 30% disability on acount of Primary Hypertension, lifelong. 5. In such circumstances, we have held in our decision in Ex Sub Gawas Anil Madso that the respondent would be entitled to disability pension. 6. We do not dem it necessary to reproduce our findings in the said decision, so as not to burden this judgment. 7. We have also ben conscious of the fact that we are exercising certiorari jurisdiction over the decision of the AFT and are not sitting in appeal over the said decision. 8. The parameters of certiorari jurisdiction are delineated in the following passages of Syed Yakoob v K.S. Radhakrishnan 5 : “7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 26 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt . A writ of certiorari can be isued for corecting erors of jurisdiction comitted by inferior courts or tribunals: these are cases where orders are pased by inferior courts or tribunals without jurisdiction, or is in exces of it, or as a result of failure to exercise jurisdiction. A writ can similarly be isued where in exercise of jurisdiction confered on it, the Court or Tribunal acts illegaly or properly, as for instance, it decides a 5 AIR 1964 SC 477 W.P.(C) 13219/2025 Page 5 of 8 question without giving an oportunity, be heard to the party afected by the order, or where the procedure adopted in dealing with the dispute is oposed to principles of natural justice. There is, however, no doubt that the jurisdiction to isue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an apelate Court. This limitation necesarily means that findings of fact reached by the inferior Court or Tribunal as result of the apreciation of evidence canot be reopened or questioned in writ proceedings. An eror of law which is aparent on the face of the record can be corected by a writ, but not an eror of fact, however grave it may apear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be isued if it is shown that in recording the said finding, the Tribunal had eroneously refused to admit admisible and material evidence, or had eroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an eror of law which can be corected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal canot be chalenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or suficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points canot be agitated before a writ Court. It is within these limits that the jurisdiction confered on the High Courts under Article 26 to isue a writ of certiorari can be legitimately exercised ( vide Hari Vishnu Kamath v Syed Ahmad Ishaque 6 , Nagandra Nath Bora v Comisioner of Hils Division and Apeals Asam 7 and Kaushalya Devi v Bachittar Singh 8 . 8. It is, of course, not easy to define or adequately describe what an eror of law apparent on the face of the record means. What can be corected by a writ has to be an error of law; hut it must be such an eror of law as can be regarded as one which is aparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis - interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expresly founded on reasons which are wrong in law, the said conclusion can be corected by a writ of certiorari. In al these cases, the impugned conclusion should be so 6 (195 4) 2 SC 881 7 AIR 1958 SC 398 8 AIR 1960 SC 1168 W.P.(C) 13219/2025 Page 6 of 8 plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said eror of law is aparent on the face of the record . It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said eror; but there can be no doubt that what can be corected by a writ of certiorari is an eror of law and the said eror must, on the whole, be of such a character as would satisfy the test that it is an eror of law apparent on the face of the record . If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necesarily or always be open to corection by a writ of certiorari. In our opinion, it is neither posible nor desirable to atempt either to define or to describe adequately al cases of erors which can be apropriately described as errors of law aparent on the face of the record. Whether or not an impugned eror is an eror of law and an eror of law which is aparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is aleged to have been misconstrued or contravened.” (Emphasis suplied) 9. Within the limited parameters of the certiorari jurisdiction and keping in view the facts of the case outlined hereinabove, we find no cause to interfere with the impugned judgment of the AFT, which is afirmed in its entirety. 10. In addition, we find that our view stands fortified by paras 45.1, 46 and 47 of the judgment of the Supreme Court, rendered on 23 April 2025 in Bijender Singh v UOI 9 , which may be reproduced thus: “45.1. Thus, this Court held that esence 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 due to military service. The burden would be on the employer to rebut the 9 2025 SC OnLine SC 895 W.P.(C) 13219/2025 Page 7 of 8 presumption that the disability sufered by the member was neither atributable to nor agravated by military service. If the Medical Board is of the opinion that the disease sufered 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 liberaly. A soldier canot be asked to prove that the disease was contracted by him on account of military service or was agravated 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 atributable to nor agravated by military service, the least that is required to be done is to furnish reasons for taking such a view. 46. Refering 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 apelant was les than 20%, he would not be entitled to the disability element of the disability pension. Tribunal did not examine the isue as to whether the disability was atributable to or agravated 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 apelant was invalided out of service could not be detected at the time of entry into military service. As a mater of fact, the Invaliding Medical Board was quite categorical that no disability of the apelant 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 member sufered from any particular disease, the presumption would be that the member got aflicted by the said disease because of military service. Therefore the burden of proving that the disease is not atributable to or agravated 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 asumed to be above 20% and atract grant of 50% disability pension. 47. Thus having regard to the discusions made above, we are of the considered view that the impugned orders of the Tribunal are wholy unsustainable in law. That being the position, impugned orders dated 2.01.2018 and 26.02.2016 are hereby set aside. Consequently, respondents are directed to grant the disability element of disability pension to the apelant at the rate of 50% with efect from 01.01.196 onwards for life. The arears shal cary interest at the rate of 6% per anum til payment. The above W.P.(C) 13219/2025 Page 8 of 8 directions shal be carried out by the respondents within three months from today.” 11. The present petition is, acordingly, dismissed in limine . 12. Compliance with the impugned judgement of the AFT, if not already ensured, be ensured within a period of four weks from today. C. HARI SHANKAR, J. OM PRAKASH SHUKLA, J. SEPTEMBER 16, 2025 /aky