JUDGMENT : Mishra. J.-In this writ application the prayer of the petitioner is for quashing of the ORDER :dated the 30th August, 1994 including the ORDER :dated 12.9.94 issued by the Office of Controller of Defence Account (Pension), Allahabad whereby disability pension which was being paid to the petitioner has not only been stopped but the pension amount paid after 5th of December, 1988 is sought to be recovered form the petitioner, the said ORDER :s are made Annexures 1 & 2 respectively to this writ application. 2. Shortly stated the case of the petitioner is that he was recruited as Sepoy in the defence Service on 15.3.1961 and was posted in Army Pioneer Corps. In course of employment, he was found suffering from temporary disability by the Army Medical Board qf1d further found eligible to receive disability' pension, The petitioner was, however discharged from the Army Service in terms of the Army Rules on 2.5.1965. Accordingly, the respondent Chief Controller of Defence Accounts (Pension) (illegible) (C.C.DA), issued sanction ORDER :for grant of disability pension vide P.P.O. NoD/239788 on 31.8.1988 with a rider that for grant of further disability pension the petitioner will get himself examined by the resurvey Medical Board. a copy of the ORDER :is annexure 4 to this writ application. The petitioner was re-examined by the Resurvey Medical Board and found eligible to receive disability pension beyond 25.6.1973. The respondent C.C.DA (Pension) accordingly issued sanction ORDER :vide P.P.O. no. D/RA/8070/89. Pursuant to the direction the petitioner was again examined by Re-survey Board at Danapur Cant and was found suffering from same ailment as before. Thereafter C.C.D.A. (Pension) stopped the disability pension to the petitioner by his ORDER :dated 5.9.1989 and further stated in the ORDER :that if the petitioner, so advised, may file an appeal before the authority within the time mentioned therein. The petitioner filed a representation before the respondent stating therein that still disability continue and due to illness he could not file an appeal within the time allowed and accordingly requested for re-consideration of his case in the light of disability found by the successive Resurvey Medical Board. The prayer of the petitioner was rejected by ORDER :dated 9.6.1961, copy of which is made annexure 8 to the writ application. The prayer of the petitioner was rejected by ORDER :dated 9.6.1961, copy of which is made annexure 8 to the writ application. The petitioner, thereafter, again filed a representation, whereupon he was directed to forward medical certificate, showing the present position of his disability in ORDER :to reconsider the prayer and take steps for examination by Re-Survey Medical Board. In response to the directions aforesaid, the petitioner submitted Medical Certificate which was returned alongwith prescribed proforma with a direction to send the same after duly filled up, which was immediately complied with. The respondent authority thereafter, by letter dated 27.10.92 directed the Military Hospital Danapur to conduct Resurvey Medical Board. The Resurvey Medical Board examined the petitioner on 18.4.93 and submitted a report to the effect that petitioner is suffering from the same ailments to the extent of 20%. The said report was forwarded to the respondent C.C.D.A. (Pension) vide letter dated 8.7.93 which was accepted to the extent of the disability found by Resurvey Medical Board. Copy of the said letter is annexure 11 to the writ application. Inspite of the Resurvey Medical Board found the petitioner suffering from the said disability to the extent of 20% but the respondent C.CD.A. rejected the prayer of the petitioner for grant of disability pension by his letter dated 27.11.93, a copy of which is made annexure-12 to this writ application. The petitioner again made a representation when he was advised to examine himself by the Civil Surgeon and forward the report before resurvey Medical Board. The petitioner was accordingly examined by the Medical Board constituted by the Civil Surgeon on 29.11.94 and the Board found the disability to the extent of 40%. The said report was sent to the respondent vide letter dated 29.11.94, a copy of which is annexure 14 to the writ application. 3. In this case neither any counter affidavit is on the record nor the statement of fact stated above are being denied by the learned counsel for the respondents though it is submitted that a counter affidavit has been filed in this case. Accordingly this writ application is being disposed of on the basis of the averment made therein. 4. 3. In this case neither any counter affidavit is on the record nor the statement of fact stated above are being denied by the learned counsel for the respondents though it is submitted that a counter affidavit has been filed in this case. Accordingly this writ application is being disposed of on the basis of the averment made therein. 4. Learned counsel for the petitioner has questioned the legality and correctness of the ORDER :s and submits that though the successive resurvey Medical Board including the Medical Board constituted by the Civil Surgeon found the disability of the petitioner to the extent of 20% and 40% respectively, yet the respondent authority arbitrarily and without any basis has treated the disability of the petitioner below 20% and thereby stopped the disability pension of the petitioner which was• being paid to him on the recommendation of the resurvey Medical Board. It is submitted that the respondent C.C.D.A. (Pension) never communicated his own decision accepting disability, below 20%. The respondent Officer Incharge Record, Pioneer Corps through his letters used to communicate the decision of respondent C.C.D.A. (Pension) from time to time without assigning any reason and the basis for accepting the disability below 20%. It is further submitted that the respondent authority for the reason best known to them, has arbitrarily passed an ORDER :for recovery of the amount from the petitioner which was being paid to the petitioner on account of being disable to the extent of 20% and/or more found by the Army Medical Board. As stated above no counter affidavit is on the record. However, learned counsel for the respondent submits that since the disability of the petitioner has reduced below 20% and as such the petitioner is not entitled. It may be mentioned here that upto 20% disability is permissible limit for grant of such pension. In support of• his contention learned counsel has relied upon various provisions of the Regulation. Having regard to the rival contention, the question falls for consideration is as to whether the petitioner is or is not entitled to the disability pension as prayed for in this writ application. In ORDER :to appreciate the submissions of the learned counsel for the parties the relevant provisions of the Regulations are to be noticed. Articles 185A and 186 of the Regulation which are relevant for the disposal of this writ application read thus ;- "185A. In ORDER :to appreciate the submissions of the learned counsel for the parties the relevant provisions of the Regulations are to be noticed. Articles 185A and 186 of the Regulation which are relevant for the disposal of this writ application read thus ;- "185A. If the disability is accepted as attributable to military service but regarded as capable of improvement, an award may normally be made for a period of 3 years from the date from which a disability pension is admissible or in a case where a disability pension was in issue for a specific period, from the date of expiry of the previous award, provided that in cases where the duration of the disability at the accepted degree of disablement is considered to be less than 3 years, the period of an award calculated with reference to the date of the last medical board shall not exceed the period of duration of the disability at that degree. (b) An award may, however, be made in any individual case for such longer or shorter period as may be prescribed by the President either generally or in respect of a particular disability. (c) If the disability is accepted as aggravated by military service, the duration of an award shall be determined with due regard to' the relevant provisions in the entitlement Rules vide Appendix II." 186. An individual who was in receipt of a disability pension may be granted pension or gratuity as under, when the accepted degree of his disablement is re-assessed at less than . 20 percent." In this connection reference may also be made to Army Instructions 184 which reads thus :- "184. Entitlement to disability element of disability Pension.-JCOs, or NCs (E) of the Army including DSC discharged with a gratuity after completion of their engagement. Reference Regulation 179 of Pension Regulations for the Army, 1961 (Part I) and AI 95 of 1962 : 2. A Junior Commissioned Officer, Other Rank or Non-Combatant (Enrolled) who is discharged from service on completion of his engagement and who has earned only a service gratuity and is at the time of discharge found to be suffering from a disability attributable to or aggravated by service may at the discretion of the CDA (P), be granted, in addition to the service gratuity admissible, a disability element in accordance with the provisions laid down in the AI quoted above. 'From a bare perusal of Article 186 of the Regulation it appears that an individual who was in receipt of a disability pension is entitled for pension or gratuity' who has been declared disabled, such individual is entitled to the special gratuity in terms of Clause II of Regulation. Admittedly, the petitioner initially was being paid disability pension at the rate mentioned in Annexure 4 to this writ application which is not in dispute. The Army instructions as quoted above will also come to the rescue of the petitioner in this regard. 5. As stated above, the petitioner was found disabled while he was in service on the basis of the report of the Army Medical Board and accordingly he was discharged from service in terms of the Army Rules. That apart, the successive Resurvey Medical Board found the disability of the petitioner to the extent of 20% which is admittedly the permissible limit for grant of such pension. The Medical Board constituted by the Civil Surgeon on the direction of the respondent authority, found the disability to the extent of 40%. There is absolutely no reason and/or any basis to discard the report of the Resurvey Medical Board and accept the disability below 20% contrary to the recommendation of the Successive Medical Board. Assuming that the disability of the petitioner has reduced to below 20% even then he is entitled to the special gratuity in terms of the Regulation quoted above. In the facts and circumstances of the case, I am constrained to hold that the respondent authority without applying his mind. has passed the impugned ORDER :s resulting deprivation of the pension, legally payable to the petitioner. Accordingly for the reasons stated hereinabove the ORDER :dated 30.8.1994 and 12.9.94 as contained in Annexures-1 and 2 are hereby quashed and the respondent authorities are directed to pay the disability pension and/or special gratuity in terms of Regulation aforesaid including the arrears of. pension amount within three months from the receipt/production of a copy of this ORDER :. 6. In the result this writ application is allowed to the extent indicated above alongwith cost assessed at Rs. 5000/-.