MATHUR, J. - (1.) THIS appeal is directed against the order of the learned Single Judge dated 4. 7. 2006 dismissing the writ petition. In view of the urgency, on request of the learned counsel for the parties, the matter is heard for final disposal at admission stage.
(2.) THE facts discernible from the pleadings and the documents which are not in dispute are that first appellant Miss Priyanka applied for admission to MBBS Degree Course at the Government College against the allotted seats in the category reserved for ex-defence disabled personnel under IVth Priority meant for disabled ex-servicemen, who are medically invalided/boarded out and drawing disability pension, being daughter of second appellant Satish Kumar. First appellant attached a certificate stating disability of her father ex J. W. O. Satish Kumar attributable to Air Force Services. THE application was provisionally accepted. However, on a deeper scrutiny, it was detected that the disability of second appellant was not attributable to the Air Force Services and, therefore, his daughter was not entitled to get a medical seat in the Central Government viz; quota for wards of Defence personnels. Thus, the respondents in case of ex J. W. O. Satish Kumar having found that certificate stating the disability attributable to the military service was erroneously issued, re-issued the same on the basis of his medical document stating that disability was aggravated by service. As wards of persons falling in the category "aggravated by service" were not eligible under the Scheme, the candidature of the first appellant was rejected. THE identical four cases of "bronchial Asthma" and two more cases of P-4, disability aggravated by stress and strain, were also rejected. It is contended by the learned counsel for the appellants that the respondents have changed the second appellant's disability without intimation. It is further submitted that no discrimination can be made in case of "disabled in service and boarded out with disability attributable to Mil Service" and "aggravated by service". In order to appreciate the contention, it would be convenient to get acquainted with the subject Scheme. The respondents framed a Scheme as a welfare policy in respect of certain categories of defence personnels providing admission to various professional degree courses on preferential basis against fixed quota of seats specially reserved for wards of special and prescribed category of defence personnel through Kendriya Sainik Board, New Delhi including to MBBS Degree Course. The preferences are given in the following manner: " (a) P-I : Soldier killed in Military Operations, (b) P-II : Disabled in action and Boarded out from service with Disability attributable to Mill Service, (c) P-III : Died while in service and death attributable to Mil Service, (d) P-IV : Disabled in service and boarded out with disability attributable to Mil Service. (e) P-V : Gallantry Award/other Award Winners. " The case of the respondents as stated in the counter is that all those persons, who receive disability pension, are not automatically granted a seat. In the present context, seat is granted only to wards of disabled persons, boarded out for the reason "attributable to military service". In the instant case, second appellant is receiving the disability pension on the ground of disability being aggravated by the Military Service, therefore, the case of the first appellant does not fall in the fourth priority. It is submitted by the learned counsel for the appellants that there is no significant distinction between the two phraseologies. The facts remains that second appellant is drawing disability pension. Thus, the first appellant, being his daughter, is also entitled to be considered in the IV priority. It is further submitted that second appellant was discharged on the basis of medical opinion to the effect that "disease he suffered was attributable to or aggravated by the Military Service". In support of the contention, he has referred-to various decisions viz; (1) Kulwinder Singh vs. Union of India reported in 1999 (2) S. L. R. 676; (2) Chatar Singh vs. Union of India reported in 2005 (2) CDR 1504 (Raj.); (3) M. S. Pemmaiah vs. Union of India reported in 1998 (4) SLR 49; (4) Union of India vs. Bodan Lal Yadav reported in 1994 (1) SLR 390; (5) Union of India vs. Rattanlal reported in 1998 (8) SLR 484; (6) Hari Singh vs. Union of India reported in 2002 (3) RLR 73; (7) Smt. Sinokhi vs. Union of India reported in 2002 (3) RLR 184; (8) Union of India vs. Ex. Sgt. Tejpal Singh reported in 2005 (2) CDR 1513 (Raj.) (DB); (9) Palwinder Singh vs. Union of India reported in 2000 (5) SLR 688; and B. L. Swarankar vs. Union of India reported in 2006 (1) CDR 245 (Raj.) (DB ).
(3.) ON the other hand, it is submitted by Mr. Vineet Kumar Mathur, learned counsel for the respondents, that recently the Supreme Court in Controller of Defence Accounts vs. S. Balachandran Nair reported in AIR 2005 SC 4391 held that the High Court in exercise of powers of judicial review under Article 226 of the Constitution of India cannot sit on the decision of discharge based on medical opinion to the effect that the disease was not attributable to or aggravated by the military service. The said decision has been followed by the Division Bench of this Court in D. B. Civil Special Appeal (W) No. 254/2006 "union of India vs. Bhoora Ram decided on 24. 05. 2006. We have considered the rival contentions and gone through the judgments cited at bar. None of the cases, cited by either party, has bearing on the controversy involved in the instant case. The question before us is not as to whether the second appellant is entitled to disability pension having suffered the disease attributable to military service or aggravated because of military service. The respondents have not disputed as to entitlement of disability pension to the second appellant. The specific case of the respondents is that inspite of the fact that second appellant is entitled to disability pension, his daughter is not entitled to any benefit as her case does not fall in the Priority-IV i. e. "disabled in Service and boarded out with disability attributable to Mil Service". The distinction between the two phraseologies can be traced from Regulation 423 of the Pension Regulations for the Army, in short "pension Regulations". Regulation 173 of the Pension Regulations deals with disability pension. It provides that unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 per cent or above. The distinction between "attributable to service" and "aggravated by the service" has been provided under Clause (c) of Regulation 423, which reads as follows: " 423. Attributability of service: (a) xxx (b) xxx (c) The cause of a disability or death resulting from a disease will be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the armed forces determined and contributed to the onset of the disease. Cases, in which it is established that service conditions did not determine or contribute to the onset of the disease but influenced the subsequent course of the disease, will be regarded as aggravated by the service. A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of individual's acceptance for service in the armed forces. However, if medical opinion holds, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. " Thus, the case in which it is established that the disease arose during service and the conditions and circumstances of duty in the armed forces determined and contributed to the onset of the disease, is a case "attributable to service". However, when it is established that service conditions did not determine or contribute to the onset of disease but influenced the subsequent course of the disease, it would be regarded as "aggravated by the service". In both the cases, ex-service man is entitled to disability pension but the level of gravity is different. This leads to classification among ex-defence personnels drawing disability pension. ;