TARSEM LAL Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) Written statement on behalf of respondents has been filed in Court today, which is taken on record. Copy thereof has been furnished to the learned counsel for the petitioner.

(2.) The prayer made in this petition is that the order dated 19.6.2004 (P-1) passed by the The Principal, Controller of Defence Accounts (Pension) Allahabad (for short 'the PCDA (Pension)')-respondent No. 3 declining the request of the petitioner for grant of disability pension, be quashed. The petitioner was invalidated out of service on 1.8.2003 after having rendered service from 4.8.1987. It is the admitted case of the parties that the petitioner was brought before a Release Medical Board, which viewed that his disability had aggravated by military service due to stress and strain of service and assessed the disability of 30 per cent for life. It is also admitted that in accordance with the instructions dated 31.1.2001, the disability which is less then 50 per cent has to be deemed to be more than 50 per cent. Therefore, it would imply that the petitioner, who has suffered disability 30 per cent would be entitled to be considered, who has suffered disability to the extent of 50 per cent for disability element of pension. The aforesaid instruction in so far as the relevant for the issue raised in the petition read as under

(3.) The question which arises for consideration before us is that whether the PCDA (Pension) can sit in judgment over the opinion of expert of medical line, who has stated that disability suffered by the petitioner is aggravated by military service and his percentage of disability was 30 per cent. This issue is not res-integra as this Court after considering the judgment in the case of Ex. Subedar Jasmail Singh V/s. Union of India and others, 2006 2 LawHerald(P&H) 1480 , had held that the Chief Controller of Defence Accounts (Pension) respondent No. 3 has not shown the matter to nullify the opinion expressed by the Resurvey Medical Board. According to the instructions the disability, which is less than 50 % is construed as more than 50 % the matter is squarely covered by the aforementioned judgment of the Division Bench and therefore, deserves to be allowed.