( 1 ) IN these writ petitions, petitioners have claimed disability pension. The disability pension, according to the petitioners, was recommended and certified in their favour. However, the claim of disability pension was rejected by the Chief Controller of Defence Accounts (Pension) on broadly three counts. First, the disability suffered by the petitioners was not attributable to or aggravated by the military service. Second, the disability was less than 20% by re-assessing the same without taking the opinion of the Medical Board or without any material before the Chief Controller of Defence Accounts and, third category of cases are those where the petitioners were getting disability pension but the same has subsequently been discontinued.

( 2 ) LEARNED counsel for the petitioners have contended that the disability pension is governed under Pension Rules of 1961 which are framed under Regulations 48, 173 and 185. There was some dispute with regard to the applicability of Pension Rules of 1961 as the learned counsel, appearing for the respondents, have contended that the same stand replaced by Pension Rules of 1982.

( 3 ) A Division Bench of this Court in CW. 3868/1993, entitled " Ex.-Signalman Shri Bhagwan Vs. Union of India and Others", has dealt with the matter extensively while delivering a Judgment on 15th November, 2002. In view of the observation of the Division Bench in sub para 9 of para 199 at page 86 of the judgment, the various arguments advanced by the learned counsel for the petitioners stand answered. The sub para 9 of para 199 of the said judgment reads as under:-

" The opinion of a Medical Board that examines an individual will have primacy over the opinion of any other medical authority (including the opinion of a "next higher medical authority" or even the Medical Adviser (P) attached to the office of the CDA or the CCDA) unless that other medical authority has also examined the individual. Alternatively, the Medical Board may reconsider its opinion after a fresh examination of the individual. The exception to this will be in cases where the "next higher medical authority" or the Medical Adviser (P) takes a view which favours the individual. "

( 4 ) WE make it clear, following the ratio of the judgment, as aforesaid, that respondents must grant pensions to such writ petitioners in whose favour the medical opinion in terms of AFMS Form-16 has been given and a certificate to that effect has been issued in terms of the said Form-16 as there is no reason why they should not be granted pension in terms thereof. In such cases where on the material available on the basis of advice of the specialist, for the reasons to be recorded in writing, there are strong reasons for coming to a different conclusion than what has been recommended on AFMS Form 16 by the Competent Authority, the case of such petitioners shall be assessed by a Review Medical Board. In case the Review Medical Board also agrees with the opinion of the Medical Adviser attached to the office of CDA (Pension) in that case an opportunity shall be granted to the petitioner concerned to plead his case before the appellate authority for grant of pension.

( 5 ) IN "ex- Sapper Mohinder Singh Vs. Union of India", Civil Appeal No. 164/1993 decided on 14th of January, 1993, the Supreme Court also considered the case where initially person was allowed disability pension @ 100%, which was later reduced from time to time. Ultimately, later on in 1989 the Medical Board after re-examining the petitioner made a recommendation for the amount to be calculated on the basis of 40% disability. The matter was placed before the Chief Controller of Defence Accounts (Pension) who assessed the disability at less than 20%, as a result of which the appellant ceased under the rules to be entitled to disability pension. The person aggrieved filed a writ petition in the High Court under Article 226 of the Constitution which was dismissed by the High Court. Even the review