Do the Entitlement Rules 2008 dismantle the claimant-protective structure of the 1982 Rules on causal connection, onus of proof and aggravation?

Paragraph 29Leaving apart the question of legal effect of Entitlement Rules 2008, the further question that arises for our consideration is whether the Entitlement Rules 1982 have actually been varied or modified by the Entitlement Rules 2008. The following is a comparative chart comprising of each subject such as, presumption at entry, onus of proof, when cause of disability is unknown, aggravation and benefit of doubt. As against each of these subjects, we have indicated the position of the Rule as it existed under the Entitlement Rules 1982 and compared with the Entitlement Rules 2008. Subject Entitlement Rules 1982 Entitlement Rules 2008 Presumption Rule 5. The approach to the Rule 5. Medical Test at entry at Entry question of entitlement to stage: The medical test at the casualty pensionary awards and time of entry is not exhaustive, evaluation of disabilities shall be but its scope is limited to broad based on the following physical examination. Therefore, presumptions: (a) A member is it may not detect some dormant presumed to have been in sound disease. Besides, certain physical and mental condition hereditary constitutional and upon entering service except as congenital diseases may to physical disabilities noted or manifest later in life, irrespective recorded at the time of entrance. of service conditions. The mere (b) In the event of his fact that a disease has subsequently being discharged manifested during military from service on medical grounds service does not per se establish any deterioration in his health, attributability to or aggravation by which has taken place, is due to military service. service. Causal Rule 8 - Rule 6 - Causal Connection- For Connection Attributability/aggravation shall award of disability be conceded if casual pension/special family pension, connection between death/ a causal connection between disablement and military service disability or death and military is certified by appropriate service has to be established by medical authority. appropriate authorities. Onus of Rule 9 - Onus of Proof Rule 7 - Onus of Proof Proof The Claimant shall not be called Ordinarily, Claimant will not be upon to prove the condition of called upon to prove the entitlements. He/she will receive condition of entitlement. the benefit of any reasonable However, where the claim is doubt. This benefit will be given preferred after 15 years of more liberally to claimants in discharge/retirement/invalidment field/afloat service cases. /release by which time the service documents of claimant are destroyed after prescribed retention period, the onus to prove entitlement would lie on the claimant. Aggravation Rule 20 - If it is established that Rule 11 - A disability shall be the disability was not caused by conceded aggravated by service service, attributability shall not be if its onset is hastened or the conceded. However, subsequent course is worsened aggravation by service is to be by specific conditions of military accepted unless any worsening service, such as posted in places in his condition was not due to of extreme climatic conditions, his service or worsening did not environmental factors related to persist on the date of discharge/ service conditions e.g., Fields, claim. Operations, High Altitudes etc. When Cause Rule 20(a) - If nothing at all is Rule 10(b)(iii) - If nothing at all is of disability known about the cause of the known about the cause of is unknown disease, and presumption of the disease and the presumption of entitlement in favour of the the entitlement in favour of the claimant is not rebutted, claimant is not rebutted, attributability should be attributability should be conceded. conceded on the basis of the clinical picture and current scientific medical application. i. No significant change in core scheme

Paragraph 30Having conducted a comparative analysis of the modifications in the Entitlement Rules 2008, our opinion against each subject is as follows –

Paragraph 31The enquiry that we have conducted to see whether there is any variation in the Entitlement Rules 2008 has actually been done, even more meticulously, by the High Courts in cases of Bhaskaran, Anil Madso and Col. Balbir Singh. For instance, the relevant paragraphs from Bhaskaran are reproduced – “Para 45. By employing the word “ordinarily”, the rule-making authority has obviously diluted the rigor of the burden which was on the establishment under the Rules of 1982. The intention is very clear that in all cases and under all circumstances it shall no longer be the burden of the establishment to show that the employee is not entitled for the benefit. In appropriate cases the employee shall discharge the onus of proof to seek the benefit. The learned Senior Central Government Counsel placed emphasis on this Rule and argued that the same has made a drastic change in the matter of onus of proof. According to the learned counsel, claimants cannot no longer raise a demand and leave it to the establishment to rebut. We shall now examine this contention. We note that the second part of Rule 7 opens with the expression “however” and the said sentence operates like a proviso carving out exception to the general rule found in the previous sentence. Reason for providing the exception is also clear from the latter sentence that; when claim is preferred after 15 years, by that time, the service documents of the claimant would be destroyed. Hence, ostensibly, the rule making authority altered the tenor of the rule regarding onus of proof in view of the fact that when belated claims are raised the establishment will not be in possession of the relevant records and in such situations the employee may obtain undue advantages. Unscrupulous persons waiting for destruction of records and raising claims thereafter is also a conceivable situation. Nonetheless, the intention of the rule makers regarding claims made within 15 years discernible from the language employed, is that the onus will continue to be primarily on the Department. We therefore hold with respect to Rule 7 of the Entitlement Rules of 2008 that the said provision does not exonerate the establishment totally from the burden of proof and in all cases in which the claim is raised within 15 years from the date of discharge/retirement/invalidment/release, the onus of proof will be primarily on the Department. Only in cases wherein claims are raised after 15 years, the burden will be entirely on the claimant. While holding thus, we have kept in mind the observation of the Supreme Court in Union of India v. Vijay Kumar that the Entitlement Rules are beneficial in nature and ought to be liberally construed. 46. In continuance of the discussion on the onus of proof, we note the submission of the learned SCGSC that the onus on the Department is discharged by referring the employee to the Medical Board and if the opinion of the Board is in favour of granting disability pension, the authorities normally accept the opinion. He submitted that in case the opinion of the Board is not in favour, then the burden of the Department shall be treated as discharged and the person claiming the benefit shall bear the onus. In other words the Department must be deemed to have rebutted the presumptions under the Rules by obtaining the medical opinion. We can accept the position canvassed only with riders, keeping in mind the statutory scheme and objectives of providing disability pension. The burden of the Department can be considered as effectively discharged and presumptions rebutted, in the case of a negative opinion by the Board, only when such opinion is sound and not flawed in any manner. We are also of the view that the employee can discharge his initial burden by pointing out the infirmities and illegalities in the procedure or conclusions of the Board. Once a prima facie case is thus made out by the applicant for scrutiny of the opinion of the Medical Board, the Department shall be bound to vindicate the same. Para 47. Regarding attributability of injuries and diseases also, the position under the Rules has undergone notable changes. Under Rule 13 of the Entitlement Rules of 1982, injuries sustained when the employee is on duty shall be deemed to have resulted from military service and diseases which led to discharge or death of the individual will ordinarily be deemed to have arisen in service if no note of it was made at the time of entry to service. Nevertheless, under Rule 10 of the Entitlement Rules of 2008 injuries sustained when the individual is on duty shall be treated as attributable to military service, provided a nexus between the injury and military service is established. Likewise, in the matter of diseases also, under the same rule two conditions are to be satisfied that the disease has arisen during the period of military service and that the disease has been caused by the conditions of employment in military service. Para 48. In dealing with cases governed by the Entitlement Rules of 2008, the Tribunals and courts should be mindful of the significant changes noted in the previous paragraphs. The principles enunciated by the Supreme Court in various cases referred above on analysing the provisions of the Regulations of 1961 and the Entitlement Rules of 1982 are to be understood as derived from the analysis of the provisions of those laws only. Mechanically adopting the principles laid down on the basis of analysis of the provisions of the Entitlement Rules of 1982 read with Regulations of 1961, to decide cases governed by the Entitlement Rules of 2008, would be therefore improper and incorrect. Interference with the opinion of the Medical Board Para 49. Under the provisions relating to granting of disability pension the most important element is the opinion of the Medical Board. Functioning of the Medical Board is guided by the guidelines issued from time to time. Whether the disability has causal connection to military service is a crucial aspect which essentially depends upon the opinion of the Medical Board. In most of the cases wherein disability pension is refused by the authorities, opinion of the Medical Board is the only decisive factor. We have already referred to various judgments of the Supreme Court dealing with the opinions of Medical Boards.”