JUDGMENT Aloke Chakrabarty, J.
1. The petitioner was enrolled in the Indian Army as a regular soldier and was allotted Signal Corps. The petitioner was posted at Jabalpur and at the time of recruitment and subsequently also his medical category was Aye-one. In course of his service the petitioner developed Leprosy Lepromatous (Board Line) and was sent to Military Hospital at Agra for treatment and also for obtaining opinion of medical Board. The Medical Board came to a conclusion that the petitioner was suffering from Leprosy Lepromatous Line) and was discharged from service date 14-4-1986 by the commanding officer under the provision of Army Rule 13-III (iii).
2. After discharge the petitioner was treated for the said disease in the military hospital at Agra and when he was fully cured he was discharged from the hospital. In the meantime, the petitioner made application for disability pension but the respondent No. 3 rejected the said claim of the petitioner by order dated 9-1-1987. The petitioner preferred mercy appeal against the said order but the same was also rejected. Thereafter the petitioner came to this court filing this writ petition citing examples of earlier personnel who were boarded out because of the same disease but were granted disability pension.
3. Respondents Nos. 4 and 5 filed counter affidavits wherein they supported the order rejecting the claim for disability pensions.
4. The petitioner filed rejoinder affidavit.
5. Heard Mr. Satyajit Mukherji, brief holder of Mr. G.D. Mukherji learned counsel for the petitioner and Mr. S. Harkauli, learned counsel for the respondents.
6. The main contention of the learned counsel for the petitioner is that when the petitioner was recruited he had undergone medical test and from time to time the medical test had been held and consistently the petitioner was found having to disease. In course of service the said disease originated and developed and as such the disease was attributable to military service and as such the order rejecting disability pension is illegal. Reliance was placed on various materials including the Guide to Medical Officers (Military Pension) 1980. The same indicated that the disease Laprosy is caused by Mycobacterium leprac and occurs in two main forms ; neural and lepromatous. The relevant portion of the said Guide is as follows :
"Leprosy :--(31) Leprosy is caused by Mycobacterium leprac and occurs in two main forms; neural and Lepromatous. It is characterised by extreme chronicity and is transmitted mainly if not entirely by contact (usually direct, though possibly indirect but close) of open cases of leprosy with healthy individuals. Although prologned and close contact is most favourable to transmission, there is evidence to indicate that some highly susceptable individuals may develop that disease from very limited contact. The mode of entering of the organism into body is not definitely known but the possibility of transmission through insect bites can not be disregarded.
X X X Entitlement : (a) Attributability should be accepted in respect of ' any Individual contracting Leprosy after being in service for two years. Cases diagnosed within one year of enrolment can not be considered as attributable to service, Cases where manifestation of the disease occurs between 1-2 years of service will be decided on their own merits provided clear evidence of attributability for service reasons is produced. If there is evidence to show that the individual had a prolonged and intimate contact arising out of service with an infections case, attributability shall have to be.
7. Learned counsel for the petitioner also referred to paragraphs 7 and 7(a) of the Appendix-II to regulation 173 of Army pension Regulation, 1961 and contended that as no note of the said disease was made at the time of petitioner's acceptance in military service and no explanation has been given by the respondents either in the impugned order or in the counter affidavit before this court and therefore applying the provisions of paragraph 7(b) the petitioner is entitled to disability pension. In support of such contention reliance was also placed on the judgment in the case of Gurnam Singh v. Union of India and Ors. reported in 1992 Lab. I.C. 1594 and the case of Gurdas Singh v. Union of India reported in 1994 Lab. I.C. 2170 as also the case of Ram Niwas v. Union of India reported in 1997 (1) EBC 477 (All).
8. Learned counsel for the respondents contends that the law decided in the aforesaid case ore not to be applied as those judgments have been passed without considering the provisions of paragraphs 7(c) and (d) of the said Appendix-II. It is contended by the learned counsel for the respondents that some omission to note at the time of entry of the petitioner in the army service is not conclusive, The question as to whether the particular disease is attributable to or aggravated by military service requires a decision by the appropriate authority. In this case the appropriate authority has come to a conclusion rejecting the claim of the petitioner and therefore, the petitioner is not entitled to any relief.
9. After considering the aforesaid contentions of the respective parties, I find that the main reliance has been placed on various provisions of paragraph-7 of Appendix-II and therefore for appreciation of said contention the relevant provision of the said paragraph 7 are quoted below:
"7. In respect of diseases, the following rules will be observed :
(a) Cases, in which it is established that conditions of military service did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will fall for acceptance on the basis of Aggravation.
(b) A disease which has led to an individual's discharge or death will ordinarily be deemed to have arised in service if no note of it was made at the time of the individual's acceptance for military service. However, 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 service.
(c) If a disease is accepted 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.
(d) In considering whether a particular disease is due to military service, it is necessary to releate the established facts, in the actiology of the disease and of its normal development, to the effect the conditions of service e. g., exposure, stress, climate, etc. may have had on its manifestation. Regard must also be had to the time factor, (Also see Annexure-l).
(i) Common disease known to be effected by exposure to whether. Diseases such as Bronchitis, Rheumatism and Nephritis-indeed most diseases of the respiratory system. Joints and Kidneys are affected by climatic conditions. The period and the conditions of service at any particular place should be taken into account in determining casual connection with service.
(ii) Common diseases known to be affected by stress and strain. The should be decided with due reference to be nature of the duties end individual has had to perform in military service. It may be that in some cases the individual had been engaged on sedentary when they will normally not qualify.
(iii) Diseases endemic to certain areas-Diseases such Malaria, Kalazar, Filariasis, Dysentery, Cholera, etc. are endemic in certain areas. These disease may also be Introduced by movements of infected persons. In determining casual connection with service It will have to be established that the conditions of military service expose the individual to the infection as a result of which he contracted the disease. Where there is medical evidence of contraction of the disease either prior to entry into service, or while off duty or on leave or desertion or unauthorised absence, etc. attributability should not be accepted unless the disease occurs within the incubation period.
(iv) Diseases due to infection in service Entitlement to pension will be admitted if the exposure to infection arose from circumstances of the members service."
10. The above provisions read with the Guide to Medical Officers as referred to herein above indicate that the matter requires consideration on facts and the result varies from fact to fact. If the disease has actually manifested between 1 to 2 years of service of the petitioner, the same has to be decided on its merit for finding out attributability to service. If the disease is due to infection in service, the entitlement to pension will be admitted if the exposure to infection arose from the circumstances of the petitioner's service. The facts as stated in sub-paragraphs (b) (c) and (d) of paragraph-7 of Appendix-II are required to be considered by the appropriate authority.
11. In the present case neither the impugned order nor the records produced nor the counter-affidavit disclosed any such consideration by the authorities. While the court was considering the case of petitioner as regards reason, nothing has been disclosed by the respondents. There is no ground for presumption that the respondents acted in accordance with the requirements of Rules. In such case the disclosure of reason before the court is necessary as validity of the order was being considered copy the court in the background of particular facts of the case as also the rules applicable.
12. Therefore, the impugned order rejecting the claim for payment of disability pension at Annexure No. 1 to the writ petition is hereby quashed. The appropriate authority is directed to consider the claim of the petitioner for payment of disability pension in accordance with law within a period of three months from the date of production of a certified copy of this order and to communicate the order to the petitioner. The writ petition is thus allowed.