JUDGMENT
Vijender Jain, J.
1. In these writ petitions, petitioners have claimed disability pension. The disability pension, according to the petitioners, was recommended and certified in their favor. However, the claim of disability pension was rejected by the Chief Controller of defense Accounts(Pension) on broadly three counts. First, the disability suffered by the petitioners was not attributable to or aggravated by the military service. Second, the disability was less than 20% by re-assessing the same without taking the opinion of the Medical Board or without any material before the Chief Controller of defense Accounts and, third category of cases are those where the petitioners were getting disability pension but the same has subsequently been discontinued.
2. Learned counsel for the petitioners have contended that the disability pension is governed under Pension Rules of 1961 which are framed under Regulations 48, 173 and 185. There was some dispute with regard to the applicability of Pension Rules of 1961 as the learned counsel, appearing for the respondents, have contended that the same stand replaced by Pension Rules of 1982.
3. A Division Bench of this Court in CW.3868/1993, entitled ” Ex.-Signalman Shri Bhagwan Vs. Union of India & Others”, has dealt with the matter extensively while delivering a Judgment on 15th November, 2002. In view of the observation of the Division Bench in sub para 9 of para 199 at page 86 of the judgment, the various arguments advanced by the learned counsel for the petitioners stand answered. The sub para 9 of para 199 of the said judgment reads as under:-
” The opinion of a Medical Board that examines an individual will have primacy over the opinion of any other medical authority(including the opinion of a “next higher medical authority” or even the Medical Adviser(P) attached to the office of the CDA or the CCDA) unless that other medical authority has also examined the individual. Alternatively, the Medical Board may reconsider its opinion after a fresh examination of the individual. The exception to this will be in cases where the “next higher medical authority” or the Medical Adviser(P) takes a view which favors the individual.”
4. We make it clear, following the ratio of the judgment, as aforesaid, that respondents must grant pensions to such writ petitioners in whose favor the medical opinion in terms of AFMS Form-16 has been given and a certificate to that effect has been issued in terms of the said Form-16 as there is no reason why they should not be granted pension in terms thereof. In such cases where on the material available on the basis of advice of the specialist, for the reasons to be recorded in writing, there are strong reasons for coming to a different conclusion than what has been recommended on AFMS Form 16 by the Competent Authority, the case of such petitioners shall be assessed by a Review Medical Board. In case the Review Medical Board also agrees with the opinion of the Medical Adviser attached to the office of CDA (Pension) in that case an opportunity shall be granted to the petitioner concerned to plead his case before the appellate authority for grant of pension.
5. In “Ex- Sapper Mohinder Singh Vs. Union of India”, Civil Appeal No. 164/1993 decided on 14th of January, 1993, the Supreme Court also considered the case where initially person was allowed disability pension @ 100%, which was later reduced from time to time. Ultimately, later on in 1989 the Medical Board after re-examining the petitioner made a recommendation for the amount to be calculated on the basis of 40% disability. The matter was placed before the Chief Controller of defense Accounts(Pension) who assessed the disability at less than 20%, as a result of which the appellant ceased under the rules to be entitled to disability pension. The person aggrieved filed a writ petition in the High Court under Article 226 of the Constitution which was dismissed by the High Court. Even the review petition was also rejected. In these circumstances, the Supreme Court held that disability assessed at 40% by the Medical Board could not have been rejected by the Controller of defense Accounts(Pension) until and unless a Review Medical Board had examined the petitioner. The ratio of the said judgment has been applied in the case of Shri Bhagwan’s case (supra) by the Division Bench of this Court.
6. We have also taken into consideration the arguments advanced by the learned counsel for the respondents with regard to limitation. We make it clear that pension is neither a gratuity nor a bounty given by the respondents. It was an obligation on the part of the respondents to have granted pension, including disability pension. If the same has not been granted, the fault lies with the respondents and no plea of limitation can be entertained in the matter of grant of pension.
7. We also hold that where a person is invalided out of service on account of lowering of his medical category it is incumbent upon the respondents to inform the person concerned that he has been invalided out of service on account of lower medical category and inform the percentage of disability and/or disease so that he exercises his right, if so advised, to make an appropriate appeal to the authority concerned. In cases where the aforesaid procedure has not been followed and the petitioners who have been invalided out of service on account of lowering of medical category assessing percentage of disability to be more than 20%, non-grant of disability pension to such petitioners by Controller of defense Accounts(Pension) is wholly arbitrary and illegal. We quash the said orders.
8. Similarly, in cases where a court of enquiry has been held with regard to an injury of a person and it has been held by the Commanding Officer that the injury sustained by the petitioner was attributable to military service and the person was placed in low medical category, orders passed by the Chief Controller of defense Accounts(Pension) summarily rejecting the disability claim without following the procedure, as mentioned in Shri Bhagwan’s case (supra), suffers from infirmity and the same are hereby quashed.
9. Before parting, we may also note that it has been observed in Shri Bhagwan’s case (supra) that 1982 Rules are under Regulation 173. The respondents were unable to place on record any material to show that these Rules were issued under Regulation 173. However, we make it clear that as the rules have been amended in 1982 for the welfare of the Army personnel who have been boarded out on account of disability on or after 1st January, 1982, the amended rules shall hold the field for the persons who have become non-effective on or after 1st January, 1982.
10. There is yet another area where we would like to give an authoritative pronouncement with regard to the method and the authority as to who will determine the aspect of attributability or aggravation in the military service. We have been shown Regulations for the Medical Services for the Armed Forces 1983. Paragraph 423 of the said Regulations deals with attributability to service. The aforesaid two aspects of disability whether it could be attributed to military service or has aggravated on account of service shall be determined with reference to paragraph 423 read with Pension Rules 1961, (Rule 7-B of the Entitlement Rules) and for the persons who are boarded out on or after 1st January, 1982 under amended Rules of 1982 under Rules 14-B, 17 and 27.
11. We may also observe that as per the Scheme of the Pension Rules, the disability pension has two components, one is for service rendered and, second, for element of disability.
12. The writ petitions are allowed and we direct the respondents to pay the disability pension in terms of the above, within four months.