Ms. Sarika Singh, SPC for UOI v. MWO SURENDRA KUMAR RETD

Judgment

1. This petition assails order dated 28 May 2024 passed by the Armed Forces Tribunal1 in OA 1416/2021 whereby the respondent(cid:146)s application for grant of disability pension on the ground that he suffers from Primary Hypertension with 30%, lifelong, rounded off to 50%, has been allowed by the AFT.

2. The issue is covered by a recent decision rendered by one of us (C. Hari Shankar J.) in UOI v Ex Sub Gawas Anil Madso2.

Nonetheless, we have heard Ms. Sarika Singh, learned SPC for the petitioners, and have perused the record. Signature Not Verified 1 (cid:147)the AFT(cid:148) hereinafter 2 318 (2025) DLT 711 Digitally Signed By:AJIT KUMAR Signing Date:04.11.2025 19:03:16 W.P.(C) 16663/2025

4. The respondent was released in Low Medical Category on his being found to be suffering from Primary Hypertension. From the record, including the proceedings of the Release Medical Board3, the following facts emerged: (i) The respondent had served in the Air Force for over 39 years and 7 months before he was diagnosed as suffering from primary hypertension. (ii) The respondent, in his self-declaration, specifically declared that he had not been suffering from Primary Hypertension prior to joining the Air Force. The declaration reads thus: 2(a). Did you suffer from any disability before joining the Armed Forces? If so give details and dates. No The correctness of this declaration is not doubted either by the RMB or by the petitioner before the AFT or before this Court. (iii) The reason regarding the primary hypertension suffered by the respondent has not been attributable to military service, as entered by the RMB reads thus: It is a (cid:147)Primary Hypertension (Old) ICD No. I10, Z09.0: lifestyle disease/metabolic disorder. Onset in peace, no close time association with service in field/HAA/CI Ops areas, no close time association with stress and strain of service & there is no delay in diagnosis/treatment. Hence the disability is conceded as NANA as per Para 43 CH VI of GMO 2008.(cid:148) Signature Not Verified 3 (cid:147)RMB(cid:148), hereinafter Digitally Signed By:AJIT KUMAR Signing Date:04.11.2025 19:03:16 W.P.(C) 16663/2025 (cid:148) (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(cid:146)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:

2. (a) Was the disease/disability attributable to the individual(cid:146)s own negligence or misconduct? If Yes, in what way. No. (v) Regarding para 43 of the Chapter VI of the GMO 2008, we have, in our judgment in UOI v WO Binod Kumar Sah (Retd4), observed thus: (cid:147)12. Para 43 of the Chapter VI of the GMO 2008, vivisected into its individual components, specifies that, while dealing with hypertension, the RMB is required to determine whether (i) the hypertension is primary or secondary, (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, Signature Not Verified 4 2025 SCC OnLine Del 2355 Digitally Signed By:AJIT KUMAR Signing Date:04.11.2025 19:03:16 W.P.(C) 16663/2025 long and frequent (iv) in cases where the disease has been reported service in Field/HAA/Active Operational Areas, the case could be explained by variable response exhibited by different individuals to stressful situations and spells of (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.(cid:148) (vi) The RMB has certified the respondent as suffering from 30% disability on account of primary hypertension, for life. (vii) We have also seen the opinion of the medical specialist, which has been annexed in the writ petition. That opinion, too, does not state at any point that the primary hypertension from which the respondent was suffering was not attributable to military service.

5. Thus, we find that even the specialist who examined the respondent did not arrive at any conclusion that the Primary Hypertension from which the respondent suffered was not attributable to military service.

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

7. We do not deem it necessary to reproduce our findings in the said decision, so as not to burden this judgment. Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:04.11.2025 19:03:16 W.P.(C) 16663/2025

8. We have also been conscious of the fact that we are exercising certiorari jurisdiction over the decision of the AFT and are not sitting in appeal over the said decision.

9. The parameters of certiorari jurisdiction are delineated in the following passages of Syed Yakoob v K.S. Radhakrishnan5: (cid:147)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 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 the relevant and material evidence adduced before the 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 Signature Not Verified 5 AIR 1964 SC 477 Digitally Signed By:AJIT KUMAR Signing Date:04.11.2025 19:03:16 W.P.(C) 16663/2025 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 Ishaque6, Nagandra Nath Bora v and Appeals Assam7 Commissioner and Kaushalya Devi v Bachittar Singh8. of Hills Division the conclusion of

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 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 nature and scope of the legal provision which is alleged to have been misconstrued or contravened.(cid:148) (Emphasis supplied)

10. Within the limited parameters of the certiorari jurisdiction and