$~32 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision : 06.01.2026 + W.P.(C) 88/2026 UNION OF INDIA & ORS. .....Petitioners Through: Mr. R. Venkat Prabhat, SPC, Mr. Ansh Kalra, Ms. Kamna Behrani, Mr. Neeraj Raj, Advs., Sgt Mritunjay and Sgt Padam Charan. versus 781466 EX SGT KRISHNA KUMAR DIWEDI .....Respondent Through: Mr. Tatsat Shukla and Mr. Rajeev Kumar, Advs. CORAM: HON'BLE MR. JUSTICE V. KAMESWAR RAO HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA MANMEET PRITAM SINGH ARORA, J. (ORAL) CM APPL. 499/2026 (Exemption) 1. Exemption is allowed, subject to all just exceptions. 2. The application stands disposed of. W.P.(C) 88/2026 and CM APPL. 498/2026 3. This petition under Article 226 of the Constitution of India lays a challenge to the order dated 26.09.2024 (‘impugned order’) passed by the Armed Forces Tribunal, Principal Bench, New Delhi (‘Tribunal’, for short) in O.A. 3720/2023 titled ‘Ex. SGT Krishna Kumar Dwivedi v. Union of India and Others’, whereby the Tribunal has partially allowed the O.A. filed by the respondent herein and granted disability element of pension to the respondent for Primary Hypertension at 30% to be rounded off to 50% for life, from the date of retirement i.e., 31.12.2022. 4. Mr. R. Venkat Prabhat, SPC for the petitioners contend that the Tribunal has overlooked the Entitlement Rules for Casualty Pensionary Awards to Armed Forces Personnel, 2008 (‘2008 Entitlement Rules’, for short), which govern attributability/aggravation, and no longer permit a blanket presumption in favour of the claimant. He also states that, in the facts of this case, the respondent was released from service on attaining the age of superannuation with permanent low medical category A4G4 (P) on 30.12.2022 and therefore, the respondent would be governed by the 2008 Entitlement Rules. 5. He states that the impugned order incorrectly applies the presumption under the repealed Entitlement Rules for Casualty Pensionary Awards, 1982 (‘1982 Entitlement Rules’, for short), ignoring the amended regime under 2008 Entitlement Rules. He states that the judgment of the Supreme Court in Dharamvir Singh v. Union of India & Ors1, is inapplicable as it was decided under the repealed 1982 Entitlement Rules. He states that, 2008 Entitlement Rules have done away with the general presumption to be drawn in order to ascertain the principle of ‘attributable to or aggravated by military services’. 6. In reply, Mr. Tatsat Shukla, learned counsel for the respondent states that there is no error in the impugned order and the issue is covered by the decisions of the coordinate Benches of this Court. He more specifically relies upon the judgment dated 07.08.2025 passed by the coordinate Bench of this Court in Union of India v. HFO Satyvir Singh (Retd.)2. 7. This Court has heard the learned counsel for the parties. 8. The sole contention raised by the counsel for the petitioners is that the Tribunal has failed to take into consideration the 2008 Entitlement Rules and has wrongly applied the principles of presumption governing 1982 Entitlement Rules and thus fell in error in allowing the respondent’s claim for disability pension despite the opinion of the Medical Board that the onset of the disease was in the peace station. 9. Before examining the merit of the submission of the counsel for the petitioners, this Court deems it appropriate to examine the legal contention of the petitioners with respect to change of position of law as regards presumption of attributability under 2008 Entitlement Rules and its effect on the claim of the respondent. 10. The petitioners contend that the presumption of attributability, contained in Rule 5 of 1982 Entitlement Rules has been done away with in the 2008 Entitlement Rules. They refer to Rule 7 of 2008 Entitlement Rules, which deals with ‘Onus of Proof’. This Court notes that a coordinate Bench of this Court in its judgment dated 27.03.2025 passed in W.P.(C) 3545/2025 titled Union of India v. Ex. Sub Gawas Anil Madso3 has duly considered this change of policy in the 2008 Entitlement Rules. The coordinate Bench after considering 2008 Entitlement Rules, concluded that the effect of change in the language of Rule 7 is more one of form than of substance and held that the initial onus to prove entitlement still remain on the military establishment, and is not on the personnel claiming disability pension. It held that this onus would shift only where the officer approaches with his claim, belatedly, more than 15 years after discharge/retirement/invalidment/release. The relevant paras of the judgment are as under: - “… The effect of the change in policy in the 2008 Entitlement Rules 67. Much has been sought to be made, before us, about the fact that the presumption of attributability, contained in Rule 5 of the 1982 Entitlement Rules, has been done away with, in the 2008 EntitlementRules. We have also, therefore, compared the Rules. 68. It is true that the 2008 Entitlement Rules does not contain any provision presuming that, if there is no mention of the physical disability or ailment at the time of induction of the officer in service, there would be a presumption that it was attributable to military service. To the extent that the Court cannot presume, based on the fact that the records at the time of induction of the officer in military service did not indicate that he was suffering from the ailment detected later, that the ailment was attributable to military service, the petitioners are correct in their contention. 69. What, however, turns on this? ……… 74. We are of the view that the change in the language of the Rule is more one of form than of substance. 75. Viewed in isolation, there is clear etymological difference between the import of the words “shall” and “ordinarily”. However, Rule 7 of the 2008 Entitlement Rules has, in our view, to be read as a whole. The Rule does not end with the statement that, ordinarily, the claimant would not be called upon to prove the condition of entitlement. It proceeds to clarify that the onus to prove entitlement would be on the claimant officer “where the claim is preferred after 15 years of discharge/retirement/invalidment/release by which time the service documents of the claimant are destroyed after the prescribed retention period”. Clearly, therefore, the reason for Rule 7 of the 2008 Entitlement Rules having not chosen to retain the earlier Rule 9 of the 1981 Entitlement Rules in its original form, is only because, where a belated claim, more than 15 years after discharge, or retirement, or invalidment, or release, is preferred, the petitioners would not have retained the original service documents of the claimant. In some circumstances, it would be unfair to expect the petitioners to be burdened with the initial onus to prove that the claimant officer, who has preferred his claim belatedly, is not entitled to it. In such a circumstance, the initial onus to prove entitlement would be on the officer. It is obviously to clarify this position that Rule 7 commences with the word “ordinarily”. If anything, therefore, the word “ordinarily” would re-emphasise the position that the initial onus to prove entitlement remains on the military establishment, and is not on the officer claiming disability pension, and that this onus would shift only where the officer approaches, with his claim, belatedly, more than 15 years after discharge/retirement/invalidment/release. … 77. It goes without saying that the mere fact that the officer may have contracted the disease during military service would not suffer to entitle him to disability pension, unless the disease was attributable to the military service. The petitioners are also correct in their submission that, with the removal, in the 2008 Entitlement Rules, of the presumption that, if no note was entered in the record of the officer, at the time of his induction into military service, to the effect that he was suffering from the ailment, the ailment would be deemed to be attributable to military service 78. The removal of this presumption, from the Entitlement Rules, does not, however, automatically shift, to the claimant officer, the responsibility to prove that the disease is attributable to military service. This is clear from Rule 7, which unmistakably holds that, ordinarily, the officer would not be called upon to prove the condition of entitlement.” (Emphasis Supplied) 10.1. The coordinate Bench in Union of India v. Ex. Sub Gawas Anil Madso (supra) has further held that the effect of removal of the presumption, contained in Rule 5 of 1982 Entitlement Rules is that it would be open to the Medical Board to hold that the disease was not attributable to military service, even if it was not present at the time of induction of the officer. However, the Medical Board would have to give cogent reasons for this finding in its report. The relevant paragraphs of the said judgment read as under: - “79. All that the removal of the presumption, contained in Rule 5 of the 1981 Entitlement Rules, of the disease being attributable to the service where no note, regarding its existence, was contained in the record of the officer at the time of his enrolment into military service, entails is that it would be open to the Medical Board to hold that the disease was not attributable to military service, even if it was not present at the time of induction of the officer. 80. Even then, the responsibility would remain with the RMB to demonstrate, in its Report, with cogent reasons to be stated in the Report that, though the disease was not present at the time of induction of the officer in service, it was equally not attributable to the military service undergone by the officer. This would require, in its wake, the Report to fix attributability of the disease on some other factor, other than the military service being undergone by the officer. The RMB cannot seek to content itself with a bald statement that, in its opinion, the disease or ailment, though contracted during the tenure of military service of the officer, was not attributable to such service. The decisions cited supra, including the pronouncement in Munusamy, remain consistent on this aspect, till date. As the law stands today, the mere fact that, at the time of induction into service, the record of the claimant officer did not contain any note to the effect that he was suffering from the disability or ailment on the basis of which he later claims disability pension, would not result in any presumption that the ailment or disability was attributable to military service. It would remain, however, an indisputable fact that, even in such cases, the disease or inability arose during the course of military service. The removal of the presumption would result in the RMB being open to establish, in its Report, that the disease, even if contacted during the military service of the concerned officer, was not attributable to or aggravated by, it. 81. That responsibility has, however, to be assiduously discharged. The RMB has to record reasons as to why it arrives at the conclusion that the disease, forming subject matter of the claim for disability pension, contracted during the military service of the officer, was not attributable to such service in the absence of any such reason, the claim of the officer, disability pension, has necessarily to sustain.” (Emphasis Supplied) 11. This issue with respect to effect of change in policy in the 2008 Entitlement Rules vis-à-vis the 1982 Entitlement Rules has also been considered by another coordinate Bench of this Court in the judgment dated 01.07.2025 passed in W.P.(C) 140/2024 titled Union of India vs. Col. Balbir Singh (Retd.) and other connected matters4. The coordinate Bench while relying upon the judgment passed in Union of India v. Ex. Sub Gawas Anil Madso (supra) further dwelled on the effect of the amendment vis-à-vis the obligation of Medical Board to provide cogent reasons in its report for not considering the disease as attributable to or as aggravated by service. The relevant paragraphs of the said judgment are reproduced as under: - “44. For the purpose of further delving into the pleas raised by the parties, it is necessary to analyze the impact of the changes introduced by the new Entitlement Rules of 2008. … 46. Furthermore, a similar issue came up before a Co-ordinate Bench of this Court in Union of India & Ors v. Ex Sub Gawas Anil Madso, 2025:DHC:2021-DB, wherein it was held as under: …… 47. This Court has thus observed that with the removal of the ‘presumption’ under the 2008 Entitlement Rules, the absence of a note regarding the disease at the time of induction no longer automatically leads to the conclusion that the disease is attributable to military service, however, under Rule 7, the onus remains on the RMB to substantiate, through cogent reasoning in its Report, that although the disease was not present at the time of induction or at least not reported/discovered, it is still not attributable to military service. This implies that the RMB must identify some other factor, apart from military service, as the cause of the disease. The RMB cannot merely assert, without adequate reasons, that the disease, though contracted during military service, is not attributable to such service. … 49. With the above observations, the Co-ordinate Bench of this Court dismissed the writ petitions involving similar issues. We find ourselves in agreement with the aforementioned observations, namely that although the Rule on presumption has been modified, the RMB ought to have provided specific reasons for not considering the disability/disease suffered by the respondents as attributable to or as aggravated by service, especially when the onus in this regard remains with the petitioners.” (Emphasis Supplied) 11.1. The coordinate Bench in Union of India v. Col. Balbir Singh (Retd.) (supra) has further emphasized on the significance of the Medical Board recording clear and cogent reasons for denying the entitlement of disability pension to the officer. The relevant paragraphs of the said judgment are reproduced as under: - “50. In this regard, it is further relevant to note the observations of the Supreme Court in the Rajumon T.M. v. Union of India &Ors., 2025 SCC OnLine SC 1064, the relevant portions of which reads as under: …… …… 25. We, therefore, hold that if any action is taken by the authority for the discharge of a serviceman and the serviceman is denied disability pension on the basis of a report of the Medical Board wherein no reasons have been disclosed for the opinion so given, such an action of the authority will be unsustainable in law.” (emphasis supplied) 51. In view of the above, it is essential for the Medical Boards to record and specify the reasons for their opinion as to whether the disability is to be treated as attributable to or aggravated by military service, especially when the pensionary benefits of the Force personnel are at stake. ………. 53. Particularly in this milieu, it is of paramount importance that Medical Boards record clear and cogent reasons in support of their medical opinions. Such reasoning would not only enhance transparency but also assist the Competent Authority in adjudicating these matters with greater precision, ensuring that no prejudice is caused to either party. ……… 56. It must always be kept in view that the Armed Forces personnel, in defending this great nation from external threats, have to perform their duties in most harsh and inhuman weather and conditions, be it on far-flung corner of land, in terrains and atmosphere where limits of mans survival are tested, or in air or water, where again surviving each day is a challenge, away from the luxury of family life and comforts. It is, therefore, incumbent upon the RMB to furnish cogent and well-reasoned justification for their conclusions that the disease/disability suffered by the personnel cannot be said to be attributable to or aggravated by such service conditions. This onus is not discharged by the RMB by simply relying on when such disability/disease is noticed first. ……… 77. Thus, in view of the above, the RMB must not resort to a vague and stereotyped approach but should engage in a comprehensive, logical, and rational analysis of the service and medical records of the personnel, and must record well-reasoned findings while discharging the onus placed upon it.” (Emphasis Supplied) 11.2. The coordinate Bench in Union of India v. Col. Balbir Singh (Retd.) (supra) after considering the Regulation 423(a) of the Regulations for the Medical Services of the Armed forces, 2010, held that it is immaterial whether a disability occurs in field/active service or under normal peace conditions. The Court concluded that the mere fact that at the time of onset of the disease, military service was being rendered in peace locations or that the disease is a life style disorder, would not by itself, be a sufficient reason to deny the grant of disability pension. The relevant paragraphs of the said judgment are as under: - “66. It would also be important to note the provision relevant to attributability, that is, Regulation 423 of the Regulations for the Medical Services of the Armed Forces, 2010. The said provision reads as under: "423. (a). For the purpose of determining whether, the cause of a disability or death resulting from disease is or not attributable to Service. It is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a Field Area/Active Service area or under normal peace conditions. It is however, essential to establish whether the disability or death bore a causal connection with the service conditions. …… …….” 67. This provision was summarized in Rajumon T.M.(supra), wherein it was observed as under: “17. A careful examination of Regulation 423 of the Regulation for Medical Services for Armed Forces would reveal the following aspects: 1. 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 2. It is, however, essential to establish that the disability or death bore a casual connection with the service conditions. 3. All evidence, both direct and circumstantial, will be taken into account and benefit of reasonable doubt, if any, will be given to the individual.…………..” 68. From a plain reading of Regulation 423(a) of the Regulations for the Medical Services of the Armed Forces, 2010, it is clear that whether a disability or death occurs in a Field/Active service area or under normal Peace conditions is immaterial. 69. Nonetheless, it must be noted that even in Peace Stations, military service is inherently stressful due to a combination of factors such as strict discipline, long working hours, limited personal freedom, and constant readiness for deployment. The psychological burden of being away from family, living in isolated or challenging environments, and coping with the uncertainty of sudden transfers or duties adds to this strain. Additionally, the toll of continuous combat training further contributes to mental fatigue. Despite the absence of active conflict or the challenges of hard area postings, the demanding nature of military life at peace stations can significantly impact the overall well-being of personnel. 70. Undisputably, even when not on the front lines or in hard areas, soldiers are aware that the threat is never far away. This environment, where danger is a constant reality for their peers and could become their own at any moment, creates a persistent state of mental and emotional strain that cannot be overlooked. Thus, military service, whether in peace locations or operational zones, inherently carries stress that may predispose Force personnel to medical conditions such as hypertension. 71. Moreover, it must be noted that lifestyle varies from individual to individual. Therefore, a mere statement that a disease is a lifestyle disorder cannot be a sufficient reason to deny the grant of Disability Pension, unless the Medical Board has duly examined and recorded particulars relevant to the individual concerned. 73. A reading of the above reinforces that disability pension cannot be denied solely on the ground that the onset of the disability occurred while the Force personnel were posted at Peace Station. Furthermore, it is evident that when Force personnel have rendered prolonged military service, there exists a substantial onus on the RMB to establish that the hypertension is not attributable to or aggravated by military service.” (Emphasis Supplied) 12. It is stated that SLP(C) No. 30497/2025 filed by Union of India against specific case of Col. Balbir Singh (Retd.) has been dismissed vide order dated 14.11.2025 and SLP Civil No. 17763-17764/2025 filed by Union of India against Gawas Anil Madaso is pending, however there is no stay of the said judgment. 13. In view of the aforesaid authoritative judgments of the coordinate Benches of this Court in Union of India v. Ex. Sub Gawas Anil Madso (supra) and Union of India v. Col. Balbir Singh (Retd.) (supra), the legal position is now well settled that even under 2008 Entitlement Rules, an officer who suffers from a disease at the time of his release and applies for disability pension within 15 years from release of service, is ordinarily entitled to disability pension and he does not have any onus to prove the said entitlement. The 2008 Entitlement Rules, however, contemplate that in the event the Medical Board concludes that the disease though contracted during the tenure of military service, was not attributable to or aggravated by military service, it would have to give cogent reasons and identify the cause, other than military service, to which the ailment or disability can be attributed. The judgments hold that a bald statement in the report would not be sufficient, for the military department for denying the claim of disability pension. The burden to prove the disentitlement therefore remains on the military department even under 2008 Entitlement Rules and the aforesaid judgments emphasize on the significance of the Medical Board giving specific reasons for denial of this beneficial provision. The judgments hold that the onus to prove a casual connection between the disability and military service is not on the officer but on the administration. 14. For reference we also note that the Supreme Court in its recent opinion in the case of Bijender Singh vs. Union of India and Other(s)5 in paragraphs 45.1, 46 and 47, has held as under: “45.1. Thus, this Court held that essence 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 presumption that the disability suffered by the member was neither attributable to nor aggravated by military service. If the Medical Board is of the opinion that the disease suffered 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 liberally. A soldier cannot be asked to prove that the disease was contracted by him on account of military service or was aggravated 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 attributable to nor aggravated by military service, the least that is required to be done is to furnish reasons for taking such a view. 46. Referring 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 appellant was less than 20%, he would not be entitled to the disability element of the disability pension. Tribunal did not examine the issue as to whether the disability was attributable to or aggravated 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 appellant was invalided out of service could not be detected at the time of entry into military service. As a matter of fact, the Invaliding Medical Board was quite categorical that no disability of the appellant 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 suffered from any particular disease, the presumption would be that the member got afflicted by the said disease because of military service. Therefore the burden of proving that the disease is not attributable to or aggravated 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 assumed to be above 20% and attract grant of 50% disability pension. 47. Thus having regard to the discussions made above, we are of the considered view that the impugned orders of the Tribunal are wholly unsustainable in law. That being the position, impugned orders dated 22.01.2018 and 26.02.2016 are hereby set aside. Consequently, respondents are directed to grant the disability element of disability pension to the appellant at the rate of 50% with effect from 01.01.1996 onwards for life. The arrears shall carry interest at the rate of 6% per annum till payment. The above directions shall be carried out by the respondents within three months from today.” (Emphasis Supplied) 15. In this background of law, we have examine the facts of this case. The Tribunal has held that the respondent is entitled to disability element of pension in respect of his disability i.e., Primary Hypertension assessed as 30%, rounded off to 50% for life from the date of retirement i.e., 31.12.2022. The petitioners do not dispute the disability of the respondent, which is borne out from the Medical record and the fact that it has arisen during the period of Military service. The petitioners have only raised the issue of non-entitlement of the disability element of the pension on the ground that the Medical Board has held that the disease is not attributable to or aggravated by the military service. The opinion rendered by the Medical Board is extracted hereinbelow: 16. The respondent was enrolled in the Indian Air Force on 09.12.1999 and the disease was discovered in 2022, the year in which he was released from service. The Medical Board has simpliciter recorded that Primary Hypertension is a lifestyle disease and its onset was in the peace station at Pune in 2022. This reason ascribed by the Medical Board for holding that the disease of Primary Hypertension is not attributable to the military service has already been recorded and rejected by the coordinate Bench in Union of India v. Col. Balbir Singh (Retd.) under 2008 Entitlement Rules as unsustainable specifically at paragraphs 61, 65, 79 and 80, which read as under: “61. According to Rule 1(b) of the Entitlement Rule, 2008, these Rules are to be read in conjunction with the GMO, 2008, as amended from time to time. Accordingly, a reading of the provisions of the GMO, 2008 assumes significance. Paragraph 43 of the GMO, 2008 is reproduced herein below: “43. Hypertension - The first consideration should be to determine whether the· hypertension is primary or secondary. If secondary, entitlement considerations should be directed to the underlying disease process (e.g. Nephritis), and it is unnecessary to notify hypertension separately. As in the case of atherosclerosis, entitlement of attributability is never appropriate, but where disablement for essential hypertension appears to have arisen or become worse in service, the question whether service compulsions have caused aggravation must be considered. However, in certain cases the disease has been reported after long and frequent spells of service infield/HAA/active operational area. Such cases can be explained by variable response exhibited by different individuals to stressful situations. Primary hypertension will be considered aggravated if it occurs while serving in Field areas, HAA, CIOPS areas or prolonged afloat service.” (emphasis supplied) 65. Furthermore, from Paragraph 43 of the GMO, 2008, it is evident that cases of hypertension may arise due to the differing individual responses to stressful situations and can occur after prolonged and frequent spells of service in the field, high altitude, or operational areas. … 79. Considering all the factors together, it is evident that the mere fact that the onset of the disease occurred during a peace area posting is not sufficient to negate the cumulative stress of military service, which can contribute to the development of diseases such as Primary Hypertension, IHD etc. The RMB's opinion that the onset took place in a peace station and therefore the disease is not attributable to or aggravated by military service cannot be sustained. 80. Accordingly, we find that the respondents' claim for the disability pension on account of Primary Hypertension, could not be outrightly rejected solely on the basis of the place of the disease’s manifestation. In addition thereto, the RMB was under a duty to identify the cause of the disease in its report. In this case, however, it has clearly failed to discharge the onus placed upon it by not providing cogent reasons.” (Emphasis Supplied) 17. The respondent is therefore, rightly held entitled to the disability element of pension as per 2008 Entitlement Rules and the report of the Medical Board fails to give any cogent reasons for denying him the said entitlement. The Medical Board has failed to ascertain and identify the cause, other than military service, to which the disease can be attributed. 18. We therefore find no merit in this petition; the petition is dismissed. MANMEET PRITAM SINGH ARORA, J V. KAMESWAR RAO, J JANUARY 6, 2026/hp/MG 1 2013 (7) SCC 361 2 2025: DHC: 6640-DB 3 2025: DHC: 2021-DB 4 2025: DHC: 5082-DB 5 2025 SCC OnLine SC 895 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ W.P. (C) 88/2026 Page 2 of 13