Ms. Kavya Roy Choudhury, Advs. for UOI with Major Anish Muralidhar (Army) v. MAJ BHAVESH TALERA RETD

Judgment

1. This petition assails orders dated 4 October 2024 passed by the Armed Forces Tribunal1 in OA 1889/2019 whereby the respondent’s application for grant of disability pension on the ground that he suffers from PIVD L4-L5, Malunited Fracture Head of Radius (LT) and Chronic Allergic Rhinosinusitis with composite 50% lifelong, rounded off to 75%, 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. 1 “the AFT”, hereinafter 2 318 (2025) DLT 711 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:27.11.2025 15:06:14 W.P.(C) 17787/2025

Nonetheless, we have heard Mr. Varun Chugh, learned SPC 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 PIVD L4-L5, Malunited Fracture Head of Radius (LT) and Chronic Allergic Rhinosinusitis. 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 7 years before he was diagnosed as suffering from PIVD L4-L5, Malunited Fracture Head of Radius and Chronic Allergic Rhinosinusitis. (ii) The respondent, in his self-declaration, specifically declared that he had not been suffering from PIVD L4-LS, Malunited Fracture Head of Radius and Chronic Allergic Rhinosinusitis prior to joining the Indian Army. The declaration reads thus:

3. 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 PIVD L4-LS, Malunited Fracture Head of Radius and Chronic Allergic Rhinosinusitis suffered by Signature Not Verified 3 “RMB”, hereinafter Digitally Signed By:AJIT KUMAR Signing Date:27.11.2025 15:06:14 W.P.(C) 17787/2025 the respondent has not been attributable to military service, as entered by the RMB reads thus: “(i) PIVD L4-L5 Officers (Mil Pens): Para 51(d) Ch-VI guide to Med (ii) Malunited Fracture Head of Radius (LT): IAFY-2006 Dt. 12 May 2010 (iii) Chronic Allergic Rhinosinusitis. Para 76 & 77 Ch VI guide to Med officers (Mil Pens)” (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:

5. (a) Was the disability attributable to individual’s own in what way?): negligence or misconduct? (If yes, NO (v) Para 51(d) of the Chapter VI of the GMO 2008, read thus: “51. Low backache. Low backache is a clinical entity which is characterised by pain in the lower back which may be associated with sciatica and neurological deficit. The causes of low backache are: (d) Prolapsed inter vertebral disc ***** ***** Post traumatic low backache will be considered attributable. Aggravation due to stress & strain of service should be conceded in other cases.” Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:27.11.2025 15:06:14 W.P.(C) 17787/2025 (vi) Para 76 and 77 of the Chapter VI of the GMO 2008, read thus: Rhinitis is commonly associated with “ 76. Rhinitis: infection, allergy and certain psychosomatic factors. Alteration in temperature, humidity of inspired air and anxiety can precipitate vasomotor rhinitis. Allergic and vasomotor rhinitis should be adjudicated as aggravated, whereas that due to infection may be considered as attributable. Atrophic rhinitis is a disease of uncertain origin. It has been ascribed to an unsuspected chronic infection or to severe nasal infection in patients having inadequate diet or vitamin deficiency. It can be a complication to surgery of the nose. Acceptance on the basis of aggravation may be appropriate as service in cold climate/HAA may adversely affect the course of disease. infections, Paranasal Sinuses

77. Sinusitis: can either be affected singly or in a group. The common pre-disposing factors are nasopharngeal tonsillitis, DNS, bathing in unhygienic pools, poor general environment (bunkers, ill ventilated house, overcrowding) exposure to cold. Viruses are offending agents with bacteria as secondary invaders. Chronic sinusitis follows acute sinusitis in which infection has failed to resolve due to inadequate treatment.” . (vii) The RMB has certified the respondent as suffering from 75% disability on account of PIVD L4-L5, Malunited Fracture Head of Radius (LT) and Chronic Allergic Rhinosinusitis, 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. Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:27.11.2025 15:06:14 W.P.(C) 17787/2025

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 following passages of Syed Yakoob v K.S. Radhakrishnan4: “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 Signature Not Verified 4 AIR 1964 SC 477 Digitally Signed By:AJIT KUMAR Signing Date:27.11.2025 15:06:14 W.P.(C) 17787/2025 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 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 Ishaque5, Nagandra Nath Bora v and Appeals Assam6 Commissioner and Kaushalya Devi v Bachittar Singh7. of Hills Division the conclusion of It is, of course, not easy to define or adequately describe 8. 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