SBCWP NO.6662/02. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.6662/2002. Ram Gopal Versus Union of India & Ors. Date of order:- March 2, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Ashwini Kumar Jaiman on behalf of Shri Ashok Gaur for the petitioner. Shri Sanjay Pareek for Union of India. ***** BY THE COURT:- This writ petition has been filed by the petitioner claiming disability pension. 2) Shri Ashwini Kumar Jaiman, learned counsel for petitioner submitted that even in the report of the medical board, which the respondents have produced at Ann.R/1, it has been stated in column 5 at page 59 that the disability of the petitioner was attributable to the military service and the record office has recommended his case for grant of disability pension. Learned counsel for the SBCWP NO.6662/02. 2 petitioner has cited the judgment of the Division Bench of Punjab & Haryana High in Union of India and others Vs. Ex.Hav.Kanwar Singh, No.14550669 of EME : 2007(3) SLR 358, in which, Division Bench held that in a case where the army personnel concerned was a patient of Diabetes Mellinus (DHA Failure)-250 and when he was recruited, he was fit and healthy and therefore in the event of discharge on medical grounds, it must be held that he suffered disability owing to the conditional service and therefore he must be held to attributable to military service. Learned counsel for the petitioner argued that Division Bench of Punjab and Haryana High Court in that case granted the benefit of presumption under Rule 14.(b) of the Entitlement Rules for Casualty Pensionary Awards, 1982 which provides that if medical authority holds, for reasons to be stated that the disease although present at the time of enrollment, could not have detected on medical examination prior to acceptance for service, the disease, will not be deemed to have arisen during service. In case where it is established that the conditions of military service did not contribute to the onset or adversely affect the courses of disease, entitlement for casualty pensionary award will not be accepted, even if the disease has arisen during of service. Learned counsel for the petitioner SBCWP NO.6662/02. 3 argued that petitioner should be held entitled to disability pension. 3) Shri Sanjay Pareek, learned counsel appearing for Union of India has opposed the writ petition and submitted that Record Office is duty bound to recommend for disability pension because it has the obligation to process the application of the individual for disability pension and forward the case to the competent authority irrespective of the fact whether the individual is entitled to receive disability pension or not. It was further argued that the medical board also in column No.2A of its opinion opined that disability is not attributable to military service and that it has not been aggravated by military service. In Column No.2B, the medical board further opined that the disability has no connection with the service condition. Learned counsel for Union of India submitted that in Column No.5(a)-”Was the disability, attributable to the Individual's own negligence or misconduct? If so in what way”, answered the said column in negative. Learned counsel has also drawn attention of the Court towards the summary of the case indicating that Graded Specialist (PSY) has examined the case of the petitioner and held that “inspite of prolonged treatment, improvement has been negligent. He still shows features of anxiety. I do not think he can be SBCWP NO.6662/02. 4 a useful member of Defence. He will be liability to the services. Keeping in view of the above, I recommend him to be invalided of service. Recommended medical category EEE(Psychological).” 4) Shri Sanjay Pareek, learned counsel appearing for Union of India also cited the Division Bench judgment of this Court in Union of India Vs. Bhooram Ram : 2006(5) WLC 28 and argued that Division Bench of this Court in the aforesaid case has considered the effect of presumption of fitness as per para 7(b) of the Appendix II of the Army Pension Regulations and held that despite presumption of fitness at the time of fitness, such a presumption is not conclusive. It is a rebuttable presumption. Where the medical opinion holds to the contrary and reasons have been assigned, the High Court cannot sit in appeal over such opinion while exercising its power of judicial review under Article 226 of the Constitution of India. 5) Having heard learned counsel for the parties and perused the material on record, I find that Rule 14 supra which was considered by the Division Bench of this Court was in para-materia with Rule 7(b) of the Appendix II of the Army Pension Regulations. The aforesaid facts were considered by the Division Bench relying on the judgment of Supreme Court in Controller of Defence SBCWP NO.6662/02. 5 Accounts (Pension) & Ors. Vs. S.Balachandran Nair : AIR 2005 SC 4391. It was held that if the discharge was based on medical opinion to the effect that the disease was not attributable to or aggravated by military service, the High Court while exercising power of judicial review under Article 226 of the Constitution of India cannot sit in appeal over such opinion and the learned Single Judge, therefore, committed error in directing release of disability pension to him. In the light of the aforesaid judgment of the Division Bench in Bhooram Ram supra, I do not find any merit in this writ petition, which is accordingly dismissed. (MOHAMMAD RAFIQ), J. anil