JUDGMENT Aloke Chakrabarti, J.
1. The order dated 16.4.1981 passed by the respondent No. 3 at Annexure-2 to the writ petition and the order dated 26.4.1989 passed by the respondent No. 2 at Annexure-1 to the writ petition were challenged in this writ petition with a further claim for payment of disability pension to the petitioner.
2. Relevant facts involved herein are that the petitioner was recruited a: rifle-man and was posted in Garhwal Rifle on 2nd June, 1971 and continued in military service. The petitioner suffered from T.B. of Knees. Thereafter the petitioner also suffered from bilateral sensory neural deafness and for that reason he was discharged from service on 26.10.1979. The claim of the petitioner for disability pension was rejected by the order dated 16.4.1981. The petitioner preferred an appeal after some time but the delay was condoned and the appeal was considered by the appropriate authority but by order dated 26.4.1989 the appeal was also dismissed. Petitioner came to this Court for relief.
3. The respondents filed counter-affidavit and contended that the petitioner was discharged from the service by the appropriate authority upon holding that the disability of the petitioner was not attributable to military service and thus he is not entitled to disability pension under the Rules. The opinion of the Medical Board was annexed at Annexure-1 to the counter-affidavit. The communication of the rejection of the claim has also been annexed at Annexure-2 to the said counter-affidavit. The order of the appellate authority has been disclosed as Annexure 3 to the counter-affidavit. The petitioner filed rejoinder-affidavit.
4. Heard learned Counsel for the petitioner and Mr. Sushil Harkauli learned Counsel for the respondents.
5. Learned Counsel for the petitioner relied on the documents disclosed along with the counter-affidavit and contended that the opinion of the Medical Board is very relevant and it indicates that according to the Medical Board the disability of the petitioner was contracted in service and in circumstances over which the petitioner had no control. It has also been opined by the Medical Board that the said disability is directly attributable to condition of service. It is contended that in view of such finding of the Medical Board the authority could not reject the claim of the petitioner for disability pension. In this connection the learned Counsel for the petitioner relied on the regulation framed for grant of disability pension as also the law decided in the case of Sanjiv Jaggi v. Union of India and Ors., reported in (1994) 1 UPLBEC 566 and in the case of Anil Kumar Mishra v. Union of India and Ors., reported in (1996) 2 UPLBEC 761. With reference to the aforesaid the learned Counsel states that the impugned orders cannot stand and the petitioner is entitled to disability pension.
6. The learned Counsel for the respondents relies on the Government Order dated 21.6.1996 whereby Rules 17 and 27 of the Entitlement Rules, 1982 had been amended and prescribed the appropriate authority for giving the medical opinion on the aspects of assessment of disability and acceptance of death/disablement due to causes attributable to/aggravated by military service. In respect of initial claim of personnel below officer rank the authority is Medical Advisor (Pension)/Joint Director Armed Forces Medical Services (Pension) attached to the office of Chief CDA (Pensions). On the basis thereof it has been contended that for the purpose of taking a decision in respect of the claim of the petitioner the appropriate authority is not the Medical Board but the authority by whom the said decision was taken. In this connection reliance was placed on the finding of the Medical Board at Annexure-1 to the counter-affidavit which indicates the specific condition as infection contracted while in military service.
7. It is stated by the learned Counsel for the respondents that the basis of the disability of the petitioner being an infection the said disability cannot be held as attributable to medical service.
8. After considering the respective contentions of the parties and looking into the materials available I find that the relevant provisions in respect of disability pension are contained in Section III of Chapter II of the Regulations produced at the time of hearing. The relevant regulations contained therein are as follows :
"48. (a) An officer who is retired from military service on account of a disability which is attributable to or aggravated by such service and is assessed at 20 per cent or over may, on retirement, be awarded a disability pension consisting of a service element and a disability element in accordance with the regulations in this section;
(b) The question whether a disability is attributable to or aggravated by military service shall be determined under the rules in Appendix II.
173. Unless otherwise specifically provided a disability 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 20 percent or over.
The question whether a disability is attributable to or aggravated by military service shall be determined under the rules in Appendix II."
9. The admitted medical opinion shows that the petitioner contracted the desease while in service and in circumstances over which he had no control and the same was attributable to conditions of service. The authority while differing with the opinion of the medical board relied on the finding that the petitioner contracted infection while in military service and the desease and the consequent disability are not attributable to the service itself.
10. In view of the amendment of the Rules' as appears from the Corrigendum dated 21.6.1996 the Medical Board is not the appropriate authority for decision. But still the appropriate authority in coming the conclusion depriving the petitioner from the benefit of disability pension is required to consider the relevant facts particularly when the opinion of the Medical Board indicated the circumstances under which the petitioner contracted the desease. The orders of the appropriate authorities do not indicate any consideration of materials justifying conclusion by the authorities refusing relief to the petitioner. Counter-affidavit also has not disclosed that the appropriate authorities at all considered any material in coming to the said conclusion.
11. When admittedly the petitioner contracted the infection while in service and under circumstances over which he had no control, ordinarily the desease and the disability ought to be treated as attributable to his service unless materials are available and considered that the circumstances indicated that infection was caused solely by reason of some conduct of the petitioner which amounts to voluntary invitation of infection not in any way related to service. If the petitioner is posted in the station itself by reason of his employment and infection occurs merely by reason of his staying in that station, there is no reason to conclude that the desease and the disability from the infection is not attributable to service. Final opinion depends on facts of particular case and as such for reaching a conclusion facts are required to be considered.
12. In the circumstances, the writ petition succeeds and is allowed. The impugned order dated 16.4.1981 and 26.4.1989 at Annexures-2 and 1 respectively are hereby quashed. The appropriate authority under the presently prevailing Rules is directed to decide the matter by a speaking order within a period of four weeks from the date of production of a certified copy of this order and communicate the same to the petitioner within a period of two weeks from the date of such decision.