IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W.P. No.37 of 2007 Date of decision: 19.9.2008. Mrs.Bhama Devi and others ....Petitioners -Versus- Union of India and others ….Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K.Ahuja, Judge. Whether approved for reporting? No For the Petitioner: Mr.D.Dadhwal, Advocate. For Respondents: Mr.Ravinder Thakur, C.G.S.C. Deepak Gupta, J.(Oral) By means of this petition, the petitioners have prayed that disability pension be granted in respect of the disability suffered by Sh.Mehtab Singh. The writ petition was originally filed by Sh.Mehtab Singh (hereinafter referred to as the petitioner) who died during the pendency of the petition and his widow and other legal representatives have been brought on record. The admitted facts are that the petitioner was enrolled in the Regiment of Artillery on 22nd August, 1961 and was discharged from service on 3rd June, 1977 being placed in a lower medical category. The petitioner was diagnosed as suffering from Ischaemic heart disease during the service. Thereafter he was treated in the Indian Army but since the disease could not be contained after prolonged 2 treatment he was discharged from Army service. The petitioner contends that this disease is attributable to and is aggravated by the army service and reliance in this behalf is placed on the fact that prior to his enrollment in the Army the petitioner was not suffering from this disease. Reliance is also placed on a letter dated 13th August, 1977 in which it is mentioned that the disability pension claim has been admitted by the (illegible) Allahabad. It would be pertinent to mention that thereafter the claim of the petitioner for grant of disability pension was considered and rejected vide order dated 8th April, 1978. His claim was rejected on the ground that the disability is not attributable to military service and nor aggravated thereby. The petitioner was informed that if he is aggrieved by the said order he may file an appeal. The petitioner filed an appeal dated Ist May, 1978 against the said order. The said appeal was also rejected on 27th December, 1978. The petitioner thereafter did nothing till the year 1999 when he sent a representation for holding of a review Medical Board. Vide letter dated 5th October, 1999 the petitioner was informed that his request for holding review Medical Board could not be considered in view of the fact that it had earlier been decided that his disability was not attributable to or aggravated by the Army service. Thereafter, the petitioner kept on making further correspondence and the present petition was filed in the month of January, 2007 almost three decades after the retirement of the petitioner. 3 The respondents in their reply have stated that the case of the petitioner stood rejected as far back as in the year 1979. At this stage no records with regard to the original treatment of the petitioner can be produced. It is well settled law that the opinion of the Medical Board would have primacy over all other medical authorities. This Court in Santosh Kumar vs. Union of India and other connected matters, Latest HLJ 2007 (HP) 329, after considering the entire law with regard to the disability pension payable to ex- serviceman and after considering the judgments of the Apex Court in Union of India vs. Baljit Singh, (1996)11 SCC 315, Union of India and others vs. Dhir Singh China, (2003)2 SCC 382 and Controller of Defence Accounts (Pension) and others vs. S.Balachandrandran, (2005) 13 SCC 128, held as follows: “14.After giving our careful consideration to the rules and regulations and the authorities of the apex Court, we hold that to be entitled to disability pension, it must be established that the disability has occurred due to a wound injury or disease which is attributable to military service or existed before or arose during military service and has been and remains aggravated thereby. 15.The apex Court has clearly held that clause (c ) is not disjunctive and has to be read along with clauses (a) and (b) and, therefore, even if a disease is accepted as having arisen during service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that conditions were due to the circumstances of duty in military service. 4 16.The apex Court in Dhir Singh China’s case ( supra) also held that primacy has to be given to the report of the medical board. We are, therefore, of the opinion that the Court sitting in writ jurisdiction cannot lightly interfere with the opinion of the medical board. This is not to say that the Court is bound by the opinion of the Medical Board. However, the said opinion being an opinion/finding of an expert body should not be unsettled in writ jurisdiction unless there are clear cut grounds for doing so. We also must observe that these rules provide that if two interpretations are possible, the interpretation favourable to the claimant should be taken. If the army personnel were in field service then the benefit should be given even more liberally. It is in this light of the observations that we shall not deal with the individual cases.” In the present case though there are allegations and material to show that the petitioner contracted the disease during the Army service but there is no evidence to show that this disease was attributable to or is aggravated by the Army service. 30 years after the petitioner was retired from the Army it is not possible to reopen the decision of the review Medical Board. The Apex Court in the cases referred to above has clearly held that the Court cannot go behind the decision of the Medical Board unless cogent and reliable evidence is placed before it. Such evidence is totally lacking in the present case. Therefore, we find no merit in the petition which is rejected. There will be no order as to costs. ( Deepak Gupta ), Judge September 19, 2008. ( V.K. Ahuja ), PV Judge