Holding

The respondent is not entitled to disability pension as the disability is neither attributable to nor aggravated by military service; the High Court order directing payment is set aside.

Summary

Surinder Singh Rathore, a Signal Man in the Indian Army, was discharged in 1993 with a 30% disability due to maculopathy of the eye. The Release Medical Board concluded that his disability was neither attributable to nor aggravated by military service, and consequently his claim for a disability pension was rejected. The Ministry of Defence upheld this rejection, but the Rajasthan High Court, on a writ petition, directed the Government to grant the pension. On appeal, the Supreme Court examined Rule 173 of the Army Pension Regulations and Regulation 423 of the Medical Service of Armed Forces Regulation 1983, holding that the Medical Board’s opinion is decisive and the disability was not service‑related. Accordingly, the Court set aside the High Court order and held that the respondent is not entitled to a disability pension, though any pension already paid will not be recovered.

Issues considered

Whether the disability suffered by the respondent is attributable to or aggravated by military service under Rule 173 of the Army Pension Regulations and Regulation 423 of the Medical Service of Armed Forces Regulation 1983.
Whether the High Court was correct in directing the Government to grant a disability pension despite the Medical Board’s finding of non‑attributability.
Whether any disability pension already paid can be recovered from the respondent.

Legislation cited

Army Rules, 1954s. Rule 13

Subjects

disability pensionmilitary servicemedical boardPension Regulationsattributabilityaggravationarmy service law

Judgment

[2008) 4 S·.C.R. 909

.... ')'-
/ UNION OF INDIA & ORS. A
II.
SURINDER SINGH RATHORE
(Civil Appeal No. 1960 of 2008)
MARCH 13, 2008
B
[DR. ARIJIT PASAYAT AND J.M. PANCHAL, JJ.]
)
~
Service Law:
Pension Regulations for the Army - r 173 - Disability
pension - Signal Man in Army, discharged from service on c
account of 30% disability for two years - Claim for disability
pension - Held: Not entitled - Report of Medical Board clearly
indicates that ailment suffered by employee was neither
attributable to nor aggravated due to Military Service ·- Thus,
order of High Court directing the Government to grant disability D
pension to employee set aside· - Medical Service of Armed
Force Regulation 1983 - Regulation 423
The respondent was employed as Signal Man in the
Army in 1985. In 1991, he underwent treatment for disease
called 'Maculopathy (RT) Eye' but did not respond to the E
same. The Release Medical Board recommended that the
respondent be released from service in medical category
and CEE (permanent) which is lower than the category
'AYE due to the aforesaid disease. He was discharged
~
from service on the ground of 30% disability for two years. F
He was granted certain amount on account of invalid
gratuity and death cum retirement gratuity. The
respondent claimed disability pension. The claim was
-·rejected on the ground that the disease from which he
was suffering was neither attributable to nor aggravated G
by the military service, based on the report of the Release
.... Medical Board. Respondent filed an appeal which was
rejected. Respondent then filed a writ petition which was
allowed directing the appellants-Government to grant him
909 H
910 SUPREME COURT REPORTS [2008] 4 S.C.R.
•
~~
"'('
A disability pension. The Division Bench of High Court '-..

upheld the order. Hence the present app,eal.
Allowing the appeal, the. Court
HELD: The Medical Board's opinion was clearly to
B the effect that the ailment suffered by the appellant was
not attributable to the military service and also not
aggravated due to it. The Single Judge and the Division
Bench of High Court were not justified in holding· that the
~ "'
same was attributable to Military service and/or was
c aggravated because of service. The respondent is not
entitled to disability pension: However, on the facts and
in the circumstances of the case payment, if any, already
made to the respondent by way of disability pension,
would not be recovered. [Para 9] [918-A, B, C] i

D Union of India and Anr. v. Baljit Singh 1996 (11) SCC
).
315; Union of India and Ors. v. Dhir Singh China, Colonel
(Retd.) 2003(2) SCC 382; Union of India and Ors. v. Keshar
Singh 2007 (5) SCR 408 - relied on.

E GIVILAPPELLATEJURISDICTION: CivilAppeal No.1960
of 2008
From the final Judgment and Order dated 2.01.2006 of
the High Court of Rajasthan, at Jodhpur in Civil Special Appeal
(Writ) No. 540 of 2005
~
F
G.E. Vahanvati, S.G. Indra Sawhney andAnil Katiyarfor
the Appellants.
{
GP. Captain Karan .Singh Bhati, Aishwarya Bhati, Prabodh
Kumar and Abhisek Guatam for the Respondent.
G
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division
Bench of the Rajasthan High Court, Jodhpur Bench, dismissing
H
• UNION OF INDIA & ORS. v. SURINDER SINGH 911
RATHORE [DR. ARIJIT PASAYAT, J.]

• the Civil Special Appeal (writ) filed by the appellants. A
3. Background facts in a nutshell are as follows:
Respondent was employed as a Signal Man· in the army on
5.1.1985. Sometime in October, 1991, he was admitted to the
Military Hospital, Jodhpur for treatment of a disease called
'Maculopathy (RT) Eye'. Subsequently he was referred to the B
Command Hospital in Pune for treatment and was later reverted
.. ). back to the unit for normal duties with employability restrictions.
The respondent continued to complain of diminished vision and
WC\S re-admitted to the Military Hospital, Jodhpur. Since he was
not responding to the treatment, he was referred to the Release C
Medical Board.
On 1.5.1993, said Board completed the said investigation
and recommended that the respondent be released from service
in medical category and CEE (permanent) which is lower than
0
the category "AYE" due to the aforesaid disease. The disability
of the respondent was assessed as 30% for two years and
considered as neither attributable to nor aggravated by· military
service. The Board's proceedings were also approved by the
competent authority on 17th May, 1993. The respondent was E .
discharged from service with effect from 31. 7 .1993 in terms of
. Rule 13 of Army Rules, 1954 (in short the 'Rules'). Thereafter
he was granted a sum of Rs.9,350/- and Rs.7,425/-on account
csf invalid gratuity and death cum retirement gratuity respectively.
But prayer of the respondent for grant of disability pension was
rejected on the ground that the disease from which the F
respondent suffered was neither attributable to nor aggravated
by the military service. This information was based on the
information of the Release Medical Board as per the provisions
of Rule 173 of the Pension Regulations for the Army (in short
'Pension Regulations') read with Rule 2 of Appendix II and G
Regulation 423 of Medica! Service of Armed Force Regulation
1983.
An appeal was preferred by the respondent which was
forwarded to the Ministry of Defence. The appeal was rejected
H
912 SUPREME COURT REPORTS [2008] 4 S.C.R.

-(
,..
A upholding the view of CCDA (Pension) as communicated to
the respondent. Thereafter a writ petition was filed before the
High Court which was numbered as Writ Petition No. 2597 of
1996. By order dated 16th February, 2005, the said Writ Petition
was decided directing the present appellants to grant the
B respondent disability pension on the ground that the controversy
was squarely covered by an earlier decision rendered by the
High Court in SB Civil Writ No. 1083 of 2001. Order of learned
Single Judge was challenged _by filing a Civil Special appeal.
By order dated 2.1.2006, the appeal was rejected. The present
J.
-
c appeal by special leave has been filed by the appellants.
Learned counsel for the appellants submitted that the
factual scenario has not been appreciated by the learned Single
Judge and the Division Bench in the proper perspective. The
report of the Medical Board clearly indicates that the disability
D was not attributable to military service and also it was not
aggravated by service.
Learned counsel for the respondent on the other hand
supported the orders of the High Court.

E 4. Reference was also made to Pension Regulations. Rule
173 of such Regulations reads as follows:
rrimary conditions for the grant of disability pension:
"173. Unless otherwise specifically provided a disability
F pension may 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 2_9
percent or above.
The question whether a disability is attributable to or
G aggravated by military service shall be determined under
rule in Appendix II.
Relevant portion in Appendix II reads as follows:
). '

"2. Disablement or death shall be accepted as due to
H military service provided it is certified that
• UNION OF INDIA & ORS. v. SURINDER SINGH
RATHORE [DR. ARIJIT PASAYAT, J.]
913

(a) The disablement is due to "Yound, injury or disease A
... y which
(i) is attributable to military service; or
(ii) existed before or arose during military service and
has been and remains aggravated thereby; ·s
(b) the death was due to or hastened by-

- .1'
(i)

(ii).
a wound, injury or disease which was attributable to
military service, or
the aggravation by military service of a wound, injury c
or disease which existed before or arose during
military service.
Note: The Rule also covers cases of death after discharge/
invaliding from service.
D
3. There must be a casual connection between disablement
.,,J, or death and military service for attributability or
aggravation to be conceded.
4. In deciding on the issue of entitlement all the evidence,
E
both direct and circumstantial, will be taken into account
and the benefit or reasonable doubt will be given to the
claimant. This benefit will be given more liberally to the
claimant in field service case."
5. Regulation 423 has also relevance and needs to be F
~
extracted. The same reads as follows:
"423. Attributability to Service:
(a) For the purpose of determining whether the cause of
a disability or death is or is not attributable to service, G
it is immaterial whether the cause giving rise to the
disability or death occurred in an area declared to
be a Field Service/Active Service area or under
normal peace conditions. It is, however, essential to
establish whether the disability or death bore a casual
H
914 SUPREME COURT REPORTS [2008] 4 S.C.R.
e
A connection with the service conditions. All evidence
both direct and circumstantial, will be taken into
'"( "'
account and benefit of reasonable doubt, if any, will
be given to the individual. The evidence to be
accepted as reasonable doubt, for the purpose of
B these instructions, should be of a degree of cogency,
which though not reaching certainty, nevertheless
carry the high degree of probability. In this connection,

c
it will be remembered that proof beyond reasonable
doubt does not mean proof-beyond a shadow of
doubt. If the evidence is .so strong against an
;
'-
individual as to leave only a remote possibility in his
favour, which can be dismissed with the sentence "of
course it is possible but not in the least probable" the
case is proved beyond reasonable doubt. If on the ,Jiii
other hand, the evidence be s·o evenly balanced as
0
to render impracticable a, determinate conclusion one
way or the other, then the case would be one in which
>-.
the benefit of doubt could be given more liberally to
the individual, in cases occurring in Field Service/
Active Service areas.
E
(b) The cause of a disability or death resulting from
wound or injury, will be regarded as attributable to
service if the wound/injury was sustained during the
actual performance of "duty" in armed forces. In case
F of injuries which were self inflicted or duty to an
individual's own serious negligence or misconduct, r
the Board will also comment how far the disability
resulted from self-infliction, negligence or misconduct.
(c) The cause of a disability or death resulting from a
G disease will be regarded as attributable to service
when it is established that the disease arose during
service and the conditions and circumstances of duty
in the armed forces determined and contributed to
the onset of the disease. Cases, in which it is
H established that service conditions did not determine
UNION OF INDIA & ORS. v. SURINDER SINGH 915
RATHORE [DR. ARIJIT PASAYAT, J.]

or contribute to the onset of the disease but influenced A
' r the subsequent course of the disease, will be
...
:::.:'

regarded as aggravated by the service. A disease
.,
--1
which has led to an individual's discharge or death
I 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 service in the armed forces. However,
B

..
if medical opinion holds, for reasons to be stated
that the disease could not have been detected on
)., medical examination prior to acceptance for service,
the disease will not be deemed to have arisen during c
service.
(d) The question, whether a disability or death is
attributable to or aggravated by service or not, will
be decided as regards its medical aspects by a
medical board or by the medical officer who signs D
the death certificate. The medical board/medical
..J.
officer will specify reasons for their/his opinion. The
opinion of the medical board/medical officer, in so
far as it relates to the actual cause of the disability or
death and the circumstances in which it originated E
will be regarded as final. The question whether the
cause and the attendant circumstances can be
attributed to service will, however, be decided by the
pension sanctioning authority. ·
(e) To assist the medical officer who signs the death F
~ certificate or the medical board in the case of an
invalid, the C.O. unit will furnish a report on:-
(i) AFMS F-81 in all cases other than those due to
injuries.
G
(i) IAFY-2006 in all cases of injuries other than
battle injuries.
(f) In cases where award of disability pension or
reassessment of disabilities is concerned, a medical
H
916 SUPREME COURT REPORTS [2008] 4 S.C.R.

A board' is always necessary and the certificate of a
single medical officer will not be accepted except in
case of stations where it s not possible or feasible
to assemble a regular medical board for such
purposes. The certificate of a single medical officer
B in the latter case will be furnished on a medical board
form and countersigned by the ADMS (Army)/DMS
(Navy)/DMS (Air).
6. In Union of India and Anr. v. Baljit Singh (1996 (11) )

SCC 315) this Court had analysed Rule 173 of the Pension
C Regulations. It was obs,erved that where the Medical Board found
that there was absence of proof of the injury/illness having been
sustained due to military service or being attributable thereto,
the High Court's direction to the Government to pay disability
pension was not correct. It was inter-alia observed as follows:
D
"6 ...... lt is seen that various criteria have been prescribed
in the guidelines under the Rules as to when the disease
or injury is attributable to the military service. It is seen that
under Rule 173 disability pension would be computed
only when disability has occurred due to wound, injury or
E disease which is attributable to military service or existed
before or arose during military service and has been and
remains .aggravated dur~ng the military service. If these
conditions are satisfied, necessarily the incumbent is
entitled to the disability pension. This is made ample clear
F from clause (a) io (d) of para 7 which contemplates that in
respect of a disease the Ru.les enumerated thereunder
required to be observed. Clause (c) pr~vides that if a
disease is accepted as having arisen in service, it must
also be established that the conditions of military service
G determined or contributed to the onset of the disease and
that the conditions were due to the circumstances of duty
in military service. Unless these conditions satisfied, it
cannot be said that the sustenance of injury per se is on
account of military service. In view of the report of the
H Medical Board of Doctors, it is not due to military service.
UNION OF INDIA & ORS. v. SURINDER SINGH 917
RATHORE [DR. ARIJIT PASAYAT, J.]

The conclusion may not have been satisfactorily reached A
that the injury though sustained while in service, it was not
on account of military service. In each case, when a
disability pension is sought for made ·a claim, it must be
affirmatively established, as a fact, as to whether the injury
sustained was due to military service or was aggravated s
which contributed to invalidation for the military service".
7. The position was again re-iterated in Union of India
~ and Ors. v. Dhir Singh China, Colonel (Retd.) (2003(2) SCC
382). In para 7 it was observed as follows:
c
"7. That leaves for consideration Regulation 53. The said
Regulation provides that on an officer being compulsorily
retired on account of age or on completion of tenure, if
suffering on retirement from a disability attributable to or
aggravated by military service and recorded by service D,
medical authority, he may be granted, in addition to retiring
pension, a disability element as if he had been retired on
account of disability. It is not in dispute that the respondent
was compulsorily retired on attaining the age of
superannuation. The question, therefore, which arises for
consideration is whether he was suffering, on retirement, E
from a disability attributable to or aggravated by military
service and recorded by service medical authority. We
have already referred to the opinion of the Medical Board
which found that the two disabilities from which the
respondent was suffering were not attributable to or F
aggravated by military service. Clearly therefore, the
opinion of the Medical Board ruled out the applicability of
Regulation 53 to the case of the respondent. The diseases
from which he was suffering were not found to be
attributable to or aggravated by military service, and were G
in the nature of constitutional diseases. Such being the
opinion of the Medical Board, in our view the respondent
can derive no benefit from Regulation 53. The opinion of
the Medical Board has not been assailed in this
proceeding and, therefore, must be accepted." H
918 SUPREME COURT REPORTS [2008] 4 S.C.R.

A 8. The above position was again highlighted in Union of
India & Ors. v. Keshar Singh (2007 (5) SCR 408).
9. The Medical Board's opinion was clearly to the effect
that the ailment suffered by the appellant was not attributable to
the military service and also not aggravated due to it. Learned
B Single Judge and the Division Bench were not justified in holding
that the same was attributable to Military service and/or was
aggravated because of service. The respondent is not entitled
to disability pension. However, on the facts and in the ;
circumstances of the case payment, if any, already made to the
C respondent by way of disability pension, shall not be recovered.
10. The appeal is allowed without any order as to costs.
N.J. Appeal allowed.