Mr. Vikram Jetly CGSC with Ms. Shreya Jetly Advocate and Major Anish Murlidhar v. EX NK JADISH CHANDRA DSC

Judgment

1. This petition assails order dated 18 May 2023 passed by the Armed Forces Tribunal1 in OA 2472/2022 whereby the respondent’s application for grant of disability pension has been allowed by the AFT and the disability element of pension is compositely assessed at less than 50% for life, rounded off to 50%, from the date of discharge i.e. 21 July 2021.

2. The issue is covered by a recent decision rendered by us in UOI 1 “the AFT”, hereinafter W.P.(C) 13805/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:17.09.2025 18:16:39 v Ex Sub Gawas Anil Madso2.

Nonetheless, we have heard Mr. Vikram Jetly, learned CGSC for the petitioner, and have perused the record.

4. The respondent was released in Low Medical Category on his being found to be suffering from Diabetes Mellitus Type-II and Primary Hypertension. From the record, including the proceedings of the Release Medical Board3, the following facts emerged: (i) The respondent had served in the Indian Army for over 15 years before he was diagnosed as suffering from Diabetes Mellitus Type-II and Primary Hypertension. (ii) The respondent, in his self-declaration, specifically declared that he had not been suffering from Diabetes Mellitus Type-II and Primary Hypertension prior to joining the Indian Army. The declaration reads thus:

2. In case the disability existed at the time of entry, is it possible that it could not be detected during the routine medical examination carried out at the time of the entry? NA for all dis. The correctness of this declaration is not doubted either by the RMB or by the petitioner before the AFT or before this Court. 2 2025 SCC OnLine Del 2018 3 “RMB”, hereinafter W.P.(C) 13805/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:17.09.2025 18:16:39 (iii) The reason regarding the Diabetes Mellitus Type-II and Primary Hypertension suffered by the respondent has not been attributable to military service, as entered by the RMB reads thus: “Type-II Diabetes Mellitus (E.11.0): Onset in peace (Ref para 26, Ch. VI GMO 2008. Primary Hypertension (1-10-0): para 43, Ch VI GMO 2008. Onset in peace (Ref (iv) We have already held, in our judgment in Gawas Anil Madso, that where the applicant was not suffering from the ailment at the time of entry into service, the RMB is required to positively identify the cause for the ailment, to justify a finding that it is not attributable to military service. The Commanding Officer’s certificate specifically states that the respondent was not responsible, owing to any act or omission of his, for the ailment from which he was suffering. The entry in that regard reads as under:

4. (a) Was the disability attributable to individuals own negligence or misconduct? If Yes, in what way? N/A for all dis. (v) Regarding para 43 of the Chapter VI of the GMO 2008, we have, in our judgment in UOI v WO Binod Kumar Sah W.P.(C) 13805/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:17.09.2025 18:16:39 (Retd4), observed thus: “12. Para 43 of the Chapter VI of the GMO 2008, vivisected into its individual components, specifies that, while dealing with hypertension, (i) the hypertension is primary or secondary, the RMB is required to determine whether (ii) if the hypertension is secondary, entitlement consideration should be directed to the underlying disease process, (iii) where disablement for essential hypertension appears to have arisen to, or become worse in, service, it has to be considered whether service compulsion caused aggravation, frequent (iv) in cases where the disease has been reported after Field/HAA/Active Operational Areas, the case could be explained by variable response exhibited by different individuals to stressful situations and service spells (v) primary hypertension would be considered aggravated if it occurred while the officer was serving in field areas, HAA, CIOPS areas or prolonged afloat service.” (vi) Regarding para 26 of the Chapter VI of the GMO 2008, we have, in our judgment in UOI v EX MWO HFO Bharat Tiwari5, observed thus: “11. Para 26 of the Chapter VI of the GMO 2008, vivisected into its individual components, specifies that, while dealing with diabetes mellitus: 4 2025 SCC OnLine Del 2355 5 2025 SCC OnLine Del 2358 W.P.(C) 13805/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:17.09.2025 18:16:39 (i) (ii) DM is a metabolic disease, DM is characterised by hyperglycaemia, DM is of two types, Type I and Type II with (iii) the physiological and pathological reason for the arising of the disease, Secondary diabetes is stated to be also (iv) attributable to drugs or trauma to pancreas or brain surgery or otherwise, as well as to diseases of the pituitary, thyroid and adrenal gland, (v) DM Type II would be conceded aggravated if onset occurs serving in Fields/CIOPS/HAA and prolonged afloat service, and (vi) Diabetes secondary to chronic pancreatitis due to alcohol dependence and gestational diabetes should not be considered attributable to service.” (vii) The RMB has certified the respondent as suffering from 20% disability on account of Diabetes Mellitus Type-II and 30% disability on account of Primary Hypertension, lifelong.

5. In such circumstances, we have held in our decision in Ex Sub Gawas Anil Madso that the respondent would be entitled to disability pension.

6. We do not deem it necessary to reproduce our findings in the said decision, so as not to burden this judgment.

7. We have also been conscious of the fact that we are exercising W.P.(C) 13805/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:17.09.2025 18:16:39 certiorari jurisdiction over the decision of the AFT and are not sitting in appeal over the said decision.

8. The parameters of certiorari jurisdiction are delineated in the following passages of Syed Yakoob v K.S. Radhakrishnan6: “7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the 6 AIR 1964 SC 477 W.P.(C) 13805/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:17.09.2025 18:16:39 Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v Syed Ahmad Ishaque7, Nagandra Nath Bora v Commissioner of Hills Division and Appeals Assam8 and Kaushalya Devi v Bachittar Singh9.

8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; hut it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the