R.L. Anand, J. - (1.) EX -Sepoy Ujagar Singh -petitioner has filed this petition under Articles 226/227 of the Constitution of India and he has made a prayer that a writ in the nature of Certiorari be issued for quashing Annexure P -1 dated 16,5.1997 vide which the claim of the petitioner for disability pension was rejected. It has been further prayed by the petitioner during the course of submissions that the order dated 21.1.1999 passed by the appellate authority be also set aside.
(2.) SOME facts can be noticed in the following manner. As per the case of the petitioner, he was born on 7.11.1965. He joined the Army on 19.12.1965 and at the time of joining of the Army, he was found hale and hearty by the Medical Board. The petitioner became patient of Mitra Vaive Prolapse -394 and deformity was noticed by the Medical Board on 10.3.1996. On account of this, he was validated from service on 1.6.1996. The petitioner made a prayer that the benefit of disability pension be given to him but his case was rejected on 16.5.1997. The petitioner also filed an application in August, 1997, and the same has not been dismissed on 21.1.1999. The case set up by the petitioner in short is that the disease has been aggravated on account of his military service and, therefore, it is attributable to it. Hence, he is entitled to the benefit of disability pension. Notice of the petition was given to the respondents. They have filed the written statement. According to the stand taken up by the respondents, the disease Mitra Valve Prolapse -394 is neither attributable nor aggravated to the military service and that the petitioner is not entitled to the benefits of any disability pension. It was also pleaded by the learned counsel for the respondents that recommendations of the Medical Board, if any, are only persuasive in nature and these are not binding upon CCD A who formulates an independent opinion. A rejoinder was also filed by the petitioner in which he reiterated his averments made in the petition by taking those of the written statement. I have heard the learned counsel for the parties and with their assistance I have gone through the record of the case.
(3.) LEARNED counsel for the petitioner has invited my attention to para 2 of preliminary objections in the written statement where it has been stated as follows : "Since the petitioner was placed in low medical category "BEE" permanent, he was brought before a release medical board on March 9", 1996. The medical board held on him at 167 Military Hospital reviewed his disability as aggravated by military service and assessed the degree of disablement at 20% for two years." My attention has been further invited by the learned counsel for the petitioner to para 3 wherein a similar stand has been taken by the respondent -authorities. It was vehemently argued by the learned counsel for the petitioner that the disability suffered by the petitioner has been aggravated on account of the military service and it is attributable to the army service and moreover CCDA cannot sit over the judgment of the Medical Board when the Officer has got no opportunity to examine the patient. Learned counsel for the respondents submitted that the disease was congenial in nature, and, therefore, it is not attributable to the Army Service, and the opinion of the Board is not binding on the CCDA who can always formulate an independent opinion.;