Mr. Raj Kumar, CGSC with Sgt. Manish Kumar Singh and Sgt. Mritunjay, Air Force v. GP CAPT BHUSHAN KAUSHAL ADM ATC RETD 18898

Judgment

1. This petition assails order dated 18 April 2023 passed by the Armed Forces Tribunal1 in OA 674/2021 whereby the respondent’s application for grant of disability pension on the ground that he suffers from Primary Hypertension with 30%, rounded off to 50%, lifelong, has been allowed by the AFT.

2. The issue is covered by a recent decision rendered by us in UOI v Ex Sub Gawas Anil Madso2. Signature Not Verified 1 “the AFT”, hereinafter 2 318 (2025) DLT 711 Digitally Signed By:AJIT KUMAR Signing Date:11.11.2025 19:07:44 W.P.(C) 16954/2025

Nonetheless, we have heard Mr. Raj Kumar, learned CGSC for the petitioners, and have perused the record.

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 32 years and 6 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 petitioners 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: Signature Not Verified 3 “RMB”, hereinafter Digitally Signed By:AJIT KUMAR Signing Date:11.11.2025 19:07:44 W.P.(C) 16954/2025 “Primary Hypertension (Old): Onset Jul 18, while posted in peace Prior to onset individual served in peace station. It is Life Style disorder. There was no delay in diagnosis, no association with stress/strain or dietary compulsions or filed/CI OPS/HAA. Hence NANA in terms of para 43 of chapter VI of GMO 2002 & amendment 2008.” (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:

2. (a) Was the disease/disability attributable to the individual’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: “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 Signature Not Verified 4 2025 SCC OnLine Del 2355 Digitally Signed By:AJIT KUMAR Signing Date:11.11.2025 19:07:44 W.P.(C) 16954/2025 consideration should be directed to the underlying disease process, disablement (iii) where essential hypertension appears to have arisen to, or become worse in, service, it has to be considered whether service compulsion caused aggravation, in cases where the disease has been reported (iv) spells of service in long and frequent Field/HAA/Active Operational Areas, the case could be explained by variable response exhibited by different individuals to stressful situations and (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) The RMB has certified the respondent as suffering from 30% disability on account of Primary Hypertension, for life.

5. In such circumstances, we have held in the 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 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 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:11.11.2025 19:07:44 W.P.(C) 16954/2025 following passages of Syed Yakoob v K.S. Radhakrishnan5: “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 the jurisdiction to issue a writ of is, however, no doubt 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 the Tribunal, and the said points the exclusive jurisdiction of 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 of Hills Division