JUDGMENT Bharati Sapru, J.
1. Heard learned Counsel for the petitioner and the learned Counsel for the respondents Union of India.
2. The petitioner has prayed for writ of mandamus commanding the respondents to grant disability pension 60% and element pension with all consequential benefits to the petitioner forthwith.
3. The facts of the case are that the petitioner was enrolled as Airman in the Indian Air Force on 15.12.1983. The petitioner case is that on 4.5.1993 when he was posted at Bhuj Unit, an accident occurred and brake fluid pipe burst but, due to which, fluid entered in both eyes of the petitioner causing internal injuries to both cases. Thereafter his vision reduced. The petitioner was treated for that.
4. Subsequently the petitioner was put through a medical board. He was declared in the medical category (EEE). The petitioner was assessed to have a 60% disability in his eyes. The petitioner was invalidated out of service by a duly constituted medical board and discharged under the provisions of Indian Air Force Rules, 1969 Chapter III Rule 15 Clause 2(c) on having been found medically unfit for further service in Indian Air Force with effect from 23.12.1993 on account of having the disease "RETITITIS PUNCTATA ALBESCENS BOTH EYES". The Board which assessed his invalidation as 60% recommended that disability from which the individual suffered during his service is neither attributable to nor aggravated by Indian Air Force. This is commonly known as detachment of retina.
5. It is the petitioner's contention that the disability which he has suffered in his eyes was during the period of service in Indian Air Force and was attributable to the conditions of his service. He pleads that it was on account of bursting of the fluid which entered in his eyes that he suffered disability.
6. The medical board which examined the petitioner further opinioned differently by group of experts that disability suffered by the petitioner i.e. the problem of detachment of retina in both eyes was not attributable to the service of the petitioner and therefore his claim for disability pension was not justified. The matter was taken up by the Pension Sanctioning Authority, Allahabad in consultation with the medical officers and claim of the petitioner was rejected by an order dated 31.3.1995.
7. The petitioner therefore filed an appeal against the decision of the authority and the appeal of the petitioner was also rejected by the Government of India, Ministry of Defence by order dated 24.7.1997 on the ground that the onset of said problem in the year 1997 he was in peace area and his disability was recorded by medical authorities as neither attributable nor aggravated by duties of military services and therefore he was held disentitled for disability pension.
8. Thereafter the petitioner filed a second appeal on 14.7.1998 but it was not accepted by the Ministry of Defence as the same was not preferred within the six months of the decision of the first appeal. The respondents have paid to the petitioner actual total invalid gratuity-cum-death-cum-retirement gratuity Rs. 23,800/- cumulatively.
9. Learned Counsel for the respondents Union of India has placed before the Court Regulation 153 of the Pension Regulation for Air Force 1961 (Part I) which contains primary conditions for grant of disability pension. The Regulation 153 reads as under:
Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalidated from service on account of disability which is attributable to or aggravated by Air Force Service and is assessed at 20% or over.
10. Learned Counsel for the respondents Union of India has also stated that the decision of the Pension Sanctioning Authority (i.e. Principal Controller of the Defence Accounts (Pensions) Allahabad) is legal as the same is in accordance with provisions stipulated in the Entitlement Rules to Casualty Pensionery Awards to the Armed Forces Personnel, 1982. In terms of para 17 (a) of the Entitlement Rules to Casualty Pensionery Awards to the Armed Forces Personnel, 1982, the Medical Adviser (Pension)/Joint Director. Armed Forces Medical Services (Pension) attached to the Office of Principal Controller of Defence Accounts (Pensions) is the competent authority in respect of airmen (i.e. the petitioner is an airman) for giving medical opinion on the aspects of assessment of disability and acceptance of death/disablement due to causes attributable to/aggravated by military service.
11. Rules 17(b) 85 (c) of Entitlement Rules, which stipulates the powers of competent medical authorities (i.e. Medical Advisor (Pension)/Jr. Dir. AFMS (Pension) attached to the office of Principal CDA (Pension) are reproduced as under;
17 (b). At the time of invalidment/release of a service personnel medical views on attributability/aggravation and degree of disability shall be given by the Invalidating Medical Board (IMB)/Release Medical Board (RMB). The findings of the MB/RMB/RSMB, which are recommendatory in nature shall be reviewed by the Competent Medical Authority at the time of consideration of Initial Claim/Appeal for grant of disability pension, the Competent Medical Authority may for reasons to be recorded in writing, alter or modify the recommendation of MB/RMB/Lower Medical Authorities.
17(c) The competent medical authorities after review of the IMB/RMB/RSMB proceedings/findings of the lower Medical authorities, study of related medical/service documents, the clinical profile recorded and keeping in mind the aetiology and nature of disease, shall evaluate the role played by service factors in the onset/progress of the disability. The recommendations of the competent medical authority as accepted by the Pension Sanctioning Authorities i.e. Principal CDA (Pension)/Ministry of Defence shall be final with regard to the entitlement and assessment of disability for the purpose of grant of disability pension. Further Rule 27(c) contemplates as under -
Medical Authority - Assessment of disablement and acceptance of attributability/aggravation in cases of disabilities other than injuries are medical issues. Views on such medical issues shall be given by the Competent Medical Authorities defined under Rule 17.
12. Learned Counsel for the respondents Union of India has also relied on a decision of the Hon'ble Supreme Court in the case of Controller of Defence Accounts (Pension) v. S. Balachandran Nair reported in 2005 (7) Supreme 129, in which the Hon'ble Apex Court has held that where the medical Board has opined that the disease from which the claimant is suffering is not form to be attributable to military service and was in the nature of constitutional disease. The relief of disability pension could not be granted.
13. In the present case, the respondents have placed on record the opinion of the Medical Board, which has categorically opined that the disease of the petitioner is not attributable to his service on the Indian Air Force service. The petitioner has also made no allegation in the entire petition that his eyes suffered due to the accident took place in Bhuj. The Medical Board on the other hand had categorically opined that disease of the petitioner is not attributable to his service in the Indian Air Force.
14. In the present case the petitioner has made no challenge to the opinion of the Medical Board but has simply made prayer for mandamus to be granted disability pension. Such being the case, the petitioner is not entitled to grant any relief under Article 226 of the Constitution of India.
15. Having heard learned Counsel for the parties and having perused the record, no case is made out by the petitioner for grant of disability pension by this Court under Article 226 of the Constitution of India.
16. The writ petition lacks merit and is hereby dismissed.