Sr. No. 43 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU WP(C) No. 1720/2025 CM No. 3912/2025 1. Union of India through its secretary to Government of India, Ministry of Defence, South Block, New Delhl-110011. 2. Principal Controller of Defence Accounts (Pensions), Prayagraj 3. OIC Records, Records Army Air Defence Records PIN - 9O88O3, c/o 56 APO. ….Petitioner/Appellant(s) Through:- Mr. Vishal Sharma, DSGI V/s No 144O1875M Ex Gnr Shakti Kumar, aged about 48 years, S/o Sh Dharam Chand R/o Village Sohanjana, Tehsll and District Jammu (UT of J&K) …..Respondent(s) Through:- CORAM: HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE HON’BLE MR. JUSTICE SHAHZAD AZEEM, JUDGE JUDGMENT 1. This writ petition, at the instance of the Union of India, assails order dated 23.09.2024, passed by the Armed Forces Tribunal, Srinagar Bench at Jammu (hereinafter referred to as 'the AFT'). By the impugned order, the AFT has held that the applicant (respondent herein) was invalided out of service with a disability assessed at 20% for a period of two years and is, therefore, entitled to the grant of disability pension for the said period. The AFT has further directed that a Re-assessment Medical Board be convened to evaluate the present extent of disability, if any, including for the intervening period, and WP(C) 1720 of 2025 based on the outcome thereof, the claim for continuation of disability pension has to be reconsidered. 2. The respondent, Ex-Gunner Shakti Kumar, was enrolled in the Indian Army on 16th September, 1989. While serving in the 131 All Defence Regiment, the respondent was diagnosed as a case of ‘seizure disorder 340’. The respondent thereafter was placed in ‘low medical category’. The respondent was brought before the Medical Board. The disability claim of the respondent was rejected by the PCDA(P) Allahabad. The respondent was discharged therefrom on 1st May, 1995. As per the proceedings of the Invaliding Medical Board dated 14th March, 1995, he was found to be suffering from the disability ‘Generalized Seizure (Idiopathic) V-67’, assessed at 20% for a period of two years. The said disability was opined to be neither attributable to nor aggravated by military service, and accordingly, the respondent was not sanctioned disability pension. Aggrieved, the respondent approached the Armed Forces Tribunal, Srinagar Bench at Jammu, seeking grant of disability pension. Vide the impugned order, the AFT allowed the claim and granted disability pension to the respondent. 3. The petitioners contended before the AFT that the respondent was not entitled to the grant of disability pension, as per Rule-173 of the Pension Regulations as the disability in question was neither attributable to nor aggravated by military service. Furthermore, the respondent had submitted an WP(C) 1720 of 2025 Unwillingness Certificate upon being offered the option to continue in service under sheltered appointment. 4. It is submitted that the learned AFT failed to appreciate the fact that grant of disability pension to the respondent was adjudicated by the competent authority who had held him not entitled to the same as per relevant regulations. There was no casual connection established between the disability and military service to succeed the claim for disability pension. 5. The disability pension is granted to the Army personnel to provide necessary support to those, who have suffered disability during the course of their service or due to service conditions. This is to ensure that a soldier is able to have support and spend rest of his life with dignity. The Entitlement Rules for Causality Pensionary Awards to Armed Forces Personnel are the guidelines for granting disability and other pensionary awards to Armed Forces Personnel in cases of death or disability arisen due to their services. 6. The claim for payment of disability pension is regulated by Pension Regulations for the Army. Regulation 173 of the Pension Regulations for the Army provides for grant of disability pension to persons, who are invalided out of service on account of disability. It provides that disability pension is payable to the individual, who is discharged from service on account of disability which is neither attributable nor aggravated by Military service and is assessed at 20% or more. The issue whether disability is attributable or aggravated by WP(C) 1720 of 2025 military service is to be determined under the rules contained in Entitlement Rules of 1982 for casual pensionary awards. It also lays down the approach to be adopted while determining the entitlement of disability pension. Rule-5 of these Rules reads as under:- “5. The approach to the question of entitlement to casualty pensionary awards and evaluation of disabilities shall be based on the following presumptions: Prior to and during service (a) 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 discharge from service on medical grounds any deterioration in his health, which has taken place, is due to service.” 9. “Onus of proof The claimant shall not be called upon to prove the conditions of entitlement. 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.” 7. The Hon’ble Supreme Court while considering harmonious reading of these rules in Union of India & anr. vs. Rajbir Singh reported as (2015) 12 SCC 264 has held as under:- “11. From a conjoint and harmonious reading of Rules 5, 9 and 14 of Entitlement Rules (supra) the following guiding principles emerge: (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.” WP(C) 1720 of 2025 8. In Dharamvir Singh Vs. Union of India & ors. reported as AIR 2013 SC 2840, the Hon’ble Supreme Court has held 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 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'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. [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 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. A perusal of the impugned order indicates that, as per the Invaliding Medical Board Proceedings dated 14th March, 1995, the respondent was found to be suffering from the disability WP(C) 1720 of 2025 ‘Generalized Seizure (Idiopathic)’. An idiopathic disease is one for which no identifiable cause can be established. The AFT, while rightly placing reliance upon Rules 9 and 20 of the Entitlement Rules for Casualty Pensionary Awards, 1982, has observed that in terms of Rule 9, where the cause of disability is unknown, the benefit of doubt is required to be extended to the claimant. Moreover, in terms of Rule 20(a), the presumption of entitlement operates in favour of the claimant and such presumption attains finality in the absence of any rebuttal by the competent authority through credible and convincing evidence. 10. In the present case, the AFT by applying the correct principles of law and interpreting the entitlement rules in their true spirit, has rightly concluded that the respondent was entitled to the grant of disability pension. There is no error apparent on the face of the record which would warrant interference by this Court. 11. The instant petition is, accordingly, dismissed. (Shahzad Azeem) (Sindhu Sharma) Judge Judge Jammu: 08.07.2025 Bir Whether approved for reporting? Yes/No