Ashok Bhushan, J.

1. Heard learned counsel for the appellants as well as the learned counsel for the respondent.

2. This writ appeal has been filed by the respondents in W.P.C.No.15049/2007 against the judgment dated 01/06/2009 of the learned Single Judge of this Court by which the writ petition filed by the petitioner Sri.Madhusoodhanan.P was allowed holding that the petitioner is entitled to disability pension as recommended in Ext.P3 proceedings of the Medical Board. Respondents in the writ petition, Union of India is before us in appeal against the said judgment.

3. The facts in this case would disclose that the writ petitioner entered in service on 02/09/1983. He made an application for discharge on compassionate grounds in July 1998. But the application was not considered, instead he was transferred to field area in Jammu and Kashmir on 31/03/2000. While he was working, he contracted a disease in his right eye. He was admitted in an Army hospital but the ailment could not be cured. He was again admitted in another hospital on 15/05/2000 from where he was discharged on 24/06/2000. The petitioner was examined by the Medical Board on 25/06/2000. The Medical Board, after examining the petitioner, made the following recommendations:

"To be discharged from service in medical category CEE (P)."

4. The petitioner, however, was not discharged in low medical category, rather relying on his earlier application praying for discharge on compassionate grounds, he was discharged on compassionate grounds by order dated 15/04/2000. The petitioner, after prematurely discharged on compassionate grounds, submitted an application for grant of disability pension, which was denied on the ground that the petitioner was discharged from service on 01/08/2001, at his own request and not on medical grounds. The said decision was challenged by the petitioner by filing W.P.C.No.15049/2007, which has now been allowed.

5. The learned counsel for the appellants challenged the judgment of the learned Single Judge contending that the writ petitioner, having been discharged on account of his own request, is not entitled for disability pension. He submitted that disability pension could have been granted only when he was discharged on medical grounds in low medical category. He further submitted that under Rule 178 of the Pension Regulations for the Army, 1961 (hereinafter referred to as "the Regulations"), he is not entitled for the benefit when he was discharged on his own request. He further submitted that in any view of the matter, the disease cannot be held to be attributable to military service.

6. Learned counsel for the respondent/writ petitioner submitted that at the time when the petitioner submitted the request for discharge on compassionate grounds, he was not suffering from the disease and that he was not discharged on low medical category. He contends that the request made by him in July 1998 was not accepted, rather he was transferred to field area where he contracted the disease. It is also contended that though the Medical Board recommended the petitioner to be discharged as low medical category in medical category CEE(P), the recommendations were not accepted and relying on his earlier request for discharge on compassionate grounds, the order of discharge was issued. He further submits that the petitioner was admitted in hospital in May 2000 and June 2000 on account of the aforesaid ailment, but it could not be cured. It is submitted that the disease was attributable to military service and there was clear entitlement for grant of disability pension as per the Regulations.

7. The learned counsel for the parties also placed reliance on various judgments of this Court as well as the Apex Court which shall be referred while considering the submissions made.

8. The main thrust of submission of the learned counsel for the appellants is that since the petitioner was discharged from service not on account of he being in low medical