DHARAM SINGH Vs. UOI

JUDGEMENT

(1.) PRAYERS in this Writ Petition under Article 226 of the Constitution of india are - (a) to quash and set aside the impugned Order of the PCDA (P), allahabad dated 8th February, 1983; (b) to issue a Writ of Mandamus directing the Respondents to release disability pension of the Petitioner with effect from 1st February, 1977, his date of release/r. M. B. P. from the Navy together with interest thereon.

(2.) LEARNED counsel for the Petitioner relies on the judgment of the division Bench of this Court in Raghubir Singh v. UOI 1998 (46) DRJ 181 (DB) in which the question arose whether the CCDA could override the medical opinion of the Invaliding Medical Board. The Division Bench referred to an unreported judgment of the Hon'ble Supreme Court in ex-Sapper Mohinder Singh v. UOI, Civil Appeal No. 163/1993, decided on 6. 2. 1995 to the effect that the opinion given by the invaliding Medical board with regard to the assessment of disability of an incumbent should be respected until a fresh Medical Board examines the incumbent and comes to a different conclusion. On the strength of Mohinder Singh, the Division bench held in Raghubir Singh that the CCDA had no power to override the medical opinion of the Medical Board.

(3.) WE are of the view that this case is of no assistance to the Petitioner. We have perused the Medical Board proceedings which are Annexure-R-2. The opinion of the ENT Specialist as on 6. 1. 1977 is that - "this Individual is an old case of CSOM Rt ear in low medical category since May 72. Last reviewed in 1973 and placed in medical category GEE permanent with effect from 9 July 73. He was advised to under go tonsillactomy and tympanoplasty, which he refused (Refusal certificate attached ). " No doubt on the next page, there is a noting of the disability in question i. e. CSOM (RT) Ear which states that the disability is attributable to service. On the very same page, in response to the query - "has the individual refused to undergo operation/treatment?", the reply is that "yes, Refusal Certificate attached. " Thereafter the Medical Board has recorded that a complete cure is possible (100%) by operation/treatment. The Board further opined that the ailment/disability i. e. "tympanoplasty" is not a dangerous operation and could cure his (Petitioner's) disablement. The proceedings record that at that time the disablement was 20% for a permanent duration. Annexure R-6 is the Refusal Certificate signed by the Petitioner in the context of the recommendation for an operation.