Honble S.N. JHA, CJ.–This special appeal is directed against the order of the learned Single Judge dated 5.5.2005 in SBCWP NO. 9/1996 allowing the writ petition of the respondent with a direction to the appellants herein to release the disability pension. The learned Single Judge observed that the case was squarely covered by the decision in the case of Chhatar Singh, SBCWP No. 1400/1997 decided on 3.1.2005 and accordingly set aside the order by which the respondents claim of disability pension had been rejected. It may be stated here that Chhatar Singhs case was decided following the decision in the case of Tejpal Singh reported in 2005(2) CVR 1513.

(2). The background facts are as follows. On 29.5.1968, the respondent was enrolled in the Indian Army as an MT in the Supply Corps. According to him at the time of enrolment, he was found medically fit and placed him the medical category AYE. On 31.7.1971 he was re-mustered in the Armoured Corps where he was adjusted in the Operator/Driver Trade. According to the respondent he was again found medically fit and kept in category AYE. The respondent stated that he participated in the 1971 Indo- Pak conflict in the Western Sector and was promoted to the rank(s) of Lance Naik, Naik, Havildar and then Naib Risaldar which is a post of the rank of Junior Commissioned Officer in 1986. In April 1991 he experienced loss of vision which was diagnosed as Lenticular Bilateral Opacity and placed in lower medical category BEE (Temp). Later he was lowered to category CEE (Perm) with effect from 22.9.1992. In April, 1992 he developed pain in the left arm and was admitted in Medical Hospital, Pathankot. The ailment was diagnosed as Partial Seizure and he was recommended for being placed in the lower medical category on account of said disability too. On 30.3.1993 he was discharged under rule 13(3)(iii)(b) of the Army Rules, 1954. Contending that the discharge was on account of diseases which were attributable to or aggravated by military service the respondent applied for disability pension which was rejected on 29.9.1993. Appeal against the decision was rejected on 28.2.1995 and he then filed the writ petition in this Court which was allowed by the learned Single Judge giving rise to this appeal.

(3). The order of the learned Single Judge has been assailed on the strength of a decision of the Supreme Court in Controller of Defence Accounts (Pension) & Ors. vs. S. Balachandran Nair (AIR 2005 SC 4391) = (2005) 13 SCC 128). It was submitted that the discharge was based on medical opinion to the effect that the disease was not attributable or aggravated by military service and the High Court while exercising power of judicial review under Article 226 of the Constitution of India cannot sit in appeal over the opinion and the learned Judge, therefore, committed error in directing release of disability pension to him.

(4). Rule 173 of the Pension Regulations for the Army, 1961 provides for grant of disability pension to any person who is invalidated from military service on account of a disability which is attributable to or aggravated by military service where the disability is assessed at twenty per cent or more.

(5). On behalf of the respondent reliance was placed on paragraph 7(b) of Appendix II of the Army Pension Regulations and it was submitted that any disease which had not been noted at the time of enrolment will be deemed to have arisen in military service and inasmuch as Lenticular Bilateral Opacities or seizure was not noted in course of medical examination at the stage of respondents enrolment, the diseases must be held to have been caused by military service. The learned Single Judge therefore did not commit any error in allowing the claim of the respondent. Counsel placed reliance, apart from decisions in Chhattar Singh and Tejpal Singh (supra), on Union of India & Ors. vs. Bodan Lal Yadav, 1994(1) SLR 390, Union of India & Ors. vs. Rattan Lal, 1998(8) SLR 484 and Union of India vs. Gurnam Sin

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