Kritarth Upadhyay, Ms Aprajita Verma v. Sgt Mritunjay and Sgt Manish Kumar Singh

Judgment

1. This petition assails order dated 29 August 2024 passed by the Armed Forces Tribunal1 in OA 2425/2019 whereby the respondent’s application for grant of disability pension on the ground that he suffers from Diabetes Mellitus Type-II (Old) with 20% disability and Primary Hypertension (Old) with 30% disability have been allowed by the AFT. Signature Not Verified 1 “the AFT”, hereinafter Digitally Signed By:AJIT KUMAR Signing Date:27.11.2025 20:26:40 W.P.(C) 17921/2025

2. The issue is covered by a recent decision rendered by us in UOI v Ex Sub Gawas Anil Madso2.

3. Nonetheless, we have heard Ms Radhika Bishwajit Dubey, 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 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 Air Force for over 36 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 Air Force. 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 the Diabetes Mellitus Type-II and Signature Not Verified 2 318 (2025) DLT 711 Digitally Signed By:AJIT KUMAR Signing Date:27.11.2025 20:26:40 W.P.(C) 17921/2025 Primary Hypertension suffered by the respondent has not been attributable to military service, as entered by the RMB reads thus: lifestyle “DM Type II (Old): A related metabolic disorder. Onset Oct 2006 while posted at 9 BRD Pune a peace STN. No close time association with stress/strain of field /HAA/CI Ops of service. The disability is neither attributable to service nor aggravated by Military service in terms of para 26 of Chapter VI of Medical Officer’s guide to military pension 2008.” lifestyle “Primary Hypertension (Old): A related metabolic disorder. Onset Jul 2010 while posted at 2207 Sqn Ambala a peace station. There is no close time association with stress/strain of field/HAA/CI Ops of service. Hence disability is neither attributable to service nor aggravated by Military service in terms of para 43 of Chapter VI of Medical Officer’s guide to military pension 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:

5. (a) Was the disability attributable to individual’s own negligence or misconduct? If so, in what way? : NO, N/A Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:27.11.2025 20:26:40 3 “RMB”, hereinafter W.P.(C) 17921/2025 (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 the (i) 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, in cases where the disease has been reported (iv) long and frequent Field/HAA/Active Operational Areas, the case could be explained by variable response exhibited by different individuals to stressful situations and spells of service (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 20087, vivisected into its individual components, specifies that, while dealing with diabetes mellitus: Signature Not Verified 4 2025 SCC OnLine Del 2355 5 2025 SCC OnLine Del 2358 Digitally Signed By:AJIT KUMAR Signing Date:27.11.2025 20:26:40 W.P.(C) 17921/2025 (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 certiorari jurisdiction over the decision of the AFT and are not sitting in appeal over the said decision. Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:27.11.2025 20:26:40 W.P.(C) 17921/2025

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 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 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 Signature Not Verified