Swatanter Kumar, J.

1. Ex. Sepoy Jagmel Singh has approached this Court under Article 226/227 of the Constitution of India praying that the order passed by the respondents dated 8.10.1988. Annexure P/10 to the writ petition be quashed. Vide this letter, the respondents had denied the disability pension to the petitioner and the relevant reasons given in the letter dated 8th October, 1988 read as under:-

"It has been intimated by the CTJA(F) Allahabad vide their letter No.03/79/7455/111/237 dated 12th September, 1988 that the initial disability has been reviewed by this office and has been accepted at less than 20% (11%-14%) for life. In view of the fact no disability pension is admissible under the existing rules.

Sd/- Wassan Singh.

Lieut

Lieut. Asstt. Record Officer,

for Officer-In-Charge Records."

2. The petitioner, who was found medically fit, was enrolled in Army on 2nd of August, 1944. During his service, the petitioner suffered an injury on duty, which was diagnosed as Trench Foot. He was operated on the left side of his abdomen. He could not recover fully and was placed under medical permanent category EEE. On 21st July, 1953, the petitioner was invalided out of military service on medical ground after 9 years. On 10th July, 1974, the petitioner was denied his claim for disability pension on the ground that his disability was less than 20%. The petitioner prayed for afresh medical board. On 11th February, 1975 with the consent of the respondents, he was subjected to re-survey medical board, which was held on 21st March, 1975 and according to the petitioner, his Trench Foot was shown to be 25% ignoring the disability on account of abdomen operation. However, on 18th May, 1983, the petitioner was informed that his disability was assessed by the Central Defence Account (Pension), Allahabad to be less than 20% and as such he was held to be not entitled to disability pension. On 5th July, 1984, he submitted a representation and pursued the matter with the respondents. He was issued a certificate by Surgical Specialist certifying his disability and was ultimately subjected to re-medical survey board on 31st May, 1986 and the medical board declared the disability to be more than 20%. Despite all these respondents passed the order on 8th October, 1988. Annexure P/10, which has been challenged in this petition.

3. Upon notice, respondents, filed detailed reply. The facts hardly appear to be in controversy in the present case. Rather than referring to the stand taken by the respondents in detail, it would be more appropriate to reproduce the gist of the stand taken by the respondents in the reply.

"1. That the petitioner was enrolled in the Army on August 22, 1944, he was invalided out of service due to the disease TRENGH FOOT EFFECTS OF (57)" under Army Act 13-B III (iv) w.e.f. July 21, 1953. His disability was recommended 20% by the invaliding medical board, held at Jalandhar Cantt, and the petitioner had rendered 08 years and 11 months service.

7. That the petitioner was again represented that his disability has been increased and these facts have also been confirmed by the Civil Surgeon Bhatinda. Again his case was referred to 159 GH for holding re-survey medical board vide our letter No.4432363/333/RSMB dated May 31, 1986. His re-survey medical board was again held on November 21, 1986 and approved by ADMS Shimla on January 15, 1987 and recommended for 20% of disability for two years. All his medical documents were submitted to CCDA (P) Allahabad vide office letter No.4432363/347/RSMB dated January 24, 1987 for grant of disability pension. CCDA (P) Allahabad has again rejected his disability pension as the ID TRENGH FOOT EFFECTS OF (57) reviewed and accepted at less than 20% (11-14%) for life vide their letter No.08/79/7455/111/237 dated September 12, 1988."

4. Learned counsel appearing for the Union of India contended that the disability pension could be denied to the petitioner by CCDA (P), if found the disability to be less than 20%. He relied upon paras 17 and 27-C of the Revised Entitlement Rules, 1982 to contend that CCDA (P) was competent authority to do so.

5. I have already noticed that the facts in the present case are hardly in issue and as far as the question of law is concerned that stood answered by the Division Bench of this Court in the case of Amar Nath v. Union of India and Ors. , where the Court, after discussing the law in detail, held as under:-

"Once this certificate was issued in favour of the appellant entitling him to receive the disability pension, this benefit could not have been withdrawn by the Controller of Defence Accounts (P), Allahabad on his own without holding appellate medical board in accordance with law. Exhibit D.3 while rejecting the claim of the appellant referred to period of 10 years previous of 25.6.1988 and disability being less than 20%. This was never put to the appellant prior to the passing of the order. If the appellant was entitled to the benefit in accordance with the rules on the strength of the disability certificate. Ex.P.1 the appellant could not be divested of the same without following due process of law and after giving proper opportunity to the appellant which admittedly has not been done in the present case. The corollary to this main issue is as to whether the Controller of Defence Accounts (P), Allahabad at all was justified in assuming the jurisdiction which is not vested in it under the rules. Under the relevant rules and instructions, the respondents have the authority to constitute an Appellate Board and disturb the findings arrived at by the first medical board which again was not done. It would not be permissible to disturb the findings without taking recourse to the relevant rules and instructions governing the subject.

5. In this regard, reference can be made to the judgment of a Division Bench of this Court rendered in C.W.P. No. 17688 of 1996 Ex-Sepoy, UJagar Singh v. Union of India and Ors., decided on 9.10.1997 : 1997(4) R.S.T. 587 where this Court in somewhat similar circumstances, after discussing in detail the matter governing the subject held as under:-

"We are unable to see as to how the accounts branch dealing with the pension can sit over the judgment of the experts in the medical line and comment upon the extent of disability without making any reference to a detailed or higher medical board which can be constituted under the relevant instructions and rules by the Director General of Army Medical Core."

Somewhat similar defence was raised on behalf of the Union of India before the Honble Apex Court in the case of Ex-Sepoy Mohinder Singh v. Union of India, Civil Appeal No. 164 of 1993 decided on 14th January, 1993, where the Court held as under:-

"We have examined the relevant materials and we do not feel satisfied with the plea taken in the counter affidavit. No detail of the consultation has been disclosed by the respondent nor it is claimed that the appellant has been re-examined by any higher medical authority. We are not prepared to sit on the vague allegations in the counter affidavit referred to above. In view of all the relevant circumstances of the case we are of the opinion that the Disability Pension assessed at the rate of 40% by the Medical Board which had examined the appellant, should be respected until fresh Medical Board examined the appellant again and reached different conclusion."

An identical stand was taken by the Union of India in the case of Mam Raj v. Union of India, C.W.P. No.2302 of 1997 decided on 10.9.1997 by this Court where this Court held as under:-

"Instruction No.27 under the head of "functions and responsibilities" of Appendix-II of these instructions at best empowers the Medical Authority so constituted to give its view about assessment of disablement restricted to the medical issues. The Medical Board(s) views and findings could be subjected to an appellate view by the Director General, Armed Forces Medical Services whose view would be final. Nothing has been brought on record before us which would show that subsequent to the Medical Board, as a result of which the petitioner was discharged from Army, was held by the competent authority and that gave any findings contrary to the view expressed by the earlier Medical Board."

Reference can also be made to the decision rendered in L.P.A. No.82 of 1997 titled as Union of India and Ors. v. Ex. Captain Harbhajan Singh, decided on 25.4.1997. In the present writ petition, no details have stated in the counter affidavit filed on behalf of the Union of India nor any documents has been produced before us which could satisfy the above enunciated principles. It has also been held that pension and likewise the disability pension is recurring cause of action and mere delay will not frustrate the claim of the petitioner."

Learned counsellor the appellant has also relied upon the case of Ram Singh Jaggi v. Union of India and Ors. 1995(4) R.S.J. 807, where a Division Bench of the Himachal Pradesh High Court took the same view.

6. From the above settled principles of law, I have no hesitation in coming to the conclusion that the learned Courts below have fallen in error in coming to the conclusion that the Controller of Defence Accounts (P) Allahabad can disturb the findings of the medical board in the present manner. Admittedly, no evidence has been brought on record much less an expert evidence recorded by the (Sic) officer to show that the finding recorded by the medical board were incorrect factually or otherwise.

7. Moreover, from the record, which has been produced by the learned counsel for the parties, I find that a specific ground was raised before the learned first Appellate Authority that Controller of Defence Accounts (P) Allahabad had no authority to express view contrary to the medical board. This contention has not been properly dealt with by the learned first Appellate Court. Keeping in view the instructions aforestated there is no escape from setting aside the contents of exhibit D.3 being against the rule and settled law."

6. Under Para 17 (page 129 of the Army Pension Regulation Book placed on record), it is the Medical Adviser to the pension Board, who is appropriate authority to opine upon such matters. There is no averment in the counter-affidavit that the Medical Adviser was consulted in the present matter and that he had acted in consonance with the principles of natural justice and had afforded an opportunity to the petitioner of being examined before alleged reduction of the disability from 25% to 20%. I find it unnecessary to discuss in some elaboration this controversy as it does not even arise in the present case. The respondents have not raised any such plea in the counter-affidavit nor any records were produced before the Court which could justify even this argument on the strength of record. It is writ of certiorari. Be that as it may, the CCDA (P) itself had admittedly no jurisdiction to upset findings recorded by a duly constituted medical board or re-survey medical board under the relevant rules. It is conceded that the medical board is headed by the officers of high ranks i.e. Lt. Col. and even above higher ranks depending upon member of the force who is subjected to such medical board. It still remains to be considered whether the opinion of a duly constituted medical board can be over looked or varied even by the Medical Adviser to the CCDA (P) who is the sole member and may be inferior in rank to the head of the medical board, who had examined the concerned applicant. Further, it will have also to be gone into and answered in an appropriate case whether the principles of natural justice would have to be adhered to before reduction of disability which has been certified by the duly constituted board or by any such authority except the appellant medical board which might be constituted at the request of either party in accordance with rules. These are the few doubts, which arise in the mind of the Court as ancillary question to the arguments raised by the learned counsel for the Union of India but in the present case there is hardly a controversy and it is apparent on the face of the record and the respondent CCDA (P) has exceeded its jurisdiction and authority in reducing the disability of the petitioner, who was subjected to one medical board and two re-survey medical boards and all of them defined the disability of the petitioner more than 20%.

7. For the reasons aforestated, I have no hesitation in quashing Annexure P/10 the order dated 8.10.1999 and the same is hereby quashed. The respondents are, further directed to consider the case of the petitioner and release the disability pension of the petitioner in accordance with rules within six months from the date of this order.

8. In the facts and circumstances of the case, I would allow this petition with costs. Which are assessed at Rs. 1,500/-.