JUDGMENT 1. - By this writ petition the petitioner is seeking disability pension with interest. Mr. Shyam Singh submitted that the petitioner was commissioned in the Army on 12.07.1967 and he was invalided out from service on 31.12.1991 on account of invaliding Disease Primary Retinal Pigmentary Dystrophy with Maculopathy in both eyes (377). At the time of enrolled he was fully fit. He had service at numbers of occasion war/operational areas and was awarded numbers of medels. He has also served in USSR and Czechoslowaka. While he was serving in hilly areas, his vision deteriorated. Consequently, he was admitted in 151 Base Hospital on 4.9.1990. Later on, he was shifted to Army Hospital Delhi Cantt. And at last, he was discharged on 31.12.1991, being in lowest medical category SHAPE-5 due to Primary Rentinal Dystrophy with Maculopathy both eyes (377). His degree of disability was assessed a 80%. After discharge his case was referred to for granting disability pension, but was rejected on the ground that disability was constitutional in nature and was neither attributable to nor aggravated by military service. It was further submitted that Invaliding Disease did not exist at the time of entry into service and it arose during service only is not sufficient to draw a conclusion that it should be regarded as attributable to service. 2. The respondents submitted detailed reply. Facts were basically not disputed. It was argued that the Invalidating Medical Board (IMB), which included medical specialists, had examined the petitioner along with his previous medical papers in the light of relevant medical provisions. The Specialists came to the conclusion that the Invaliding Disability was not connected with service. The view of the IMB was upheld when the matter was re-examined by the competent authorities at first and second appeal stage. Appeals were decided by the appellate Authorities on the basis of medical papers. An operative part is reproduced as under : "ID was detected while the individual was serving the Mizo-Hills (Fd. area). The nature of disease is constitutional degenerative, progressing slowing and at time hereditary. No evidence of any STD infection, trauma in immediate post. There is no close time relation of ID with service conditions. The ID could have appeared and progress the 5 same was irrespective of whether he was in service or not. area). The nature of disease is constitutional degenerative, progressing slowing and at time hereditary. No evidence of any STD infection, trauma in immediate post. There is no close time relation of ID with service conditions. The ID could have appeared and progress the 5 same was irrespective of whether he was in service or not. Unfortunately FD Area service and the claim by the individual or injury in 1972 appears to have no effect on ID, as opined by the consultant in Opthalmology on AFMSF 16. Hence, ID is not related to service in any way. The appeal merits rejection." 3. His Invalidating Medical Board was held on 27.2.1991 at Army Hospital Delhi Cant and the Board opined that disability was not connected with service, being a constitutional disease. As such, he did not fulfill one of the eligibility conditions (attributability/aggravation) for entitlement to disability pension as laid down in Regulation 48 of Pension Regulation for the Army s Part-I of 1961. For this reason, his disability pension claim was rejected by the Pension Sanctioning Authority. On the same reasoning, the first and second appeals, filed by the petitioner, were rightly rejected by the Appellate Authorities concerned. 4. I have heard both the parties at length and perused the record. Mr. Shyam Singh has argued that at the time of entry in the service the petitioner was fully fit and did not suffer from any disease but fell ill while serving operational/field area. He had served for almost 24 years 5 months and 20 days. The disease which led to the petitioner's discharge from service will be deemed to have arisen in service falls for acceptance due to stress and strain 5 of the service and also on aggravation, does not fall under the category of diseases which are normally affected by service. Mr. Shyam Singh has relied upon various judgments of this Court and the Supreme Court. On the contrary Mr. Sanjay Pareek opposed the writ petition and has submitt ed that petitioner cannot get disability pension, as the disability was neither o attributable to nor aggravated by military service. The experts opinion cannot be interfered with in extraordinary jurisdiction. He has also relied upon judgments of this court and the Hon'ble Supreme Court. 5. Pension is a retirement benefit partaking of the character of regular payment to a person in consideration of past services rendered by him. The experts opinion cannot be interfered with in extraordinary jurisdiction. He has also relied upon judgments of this court and the Hon'ble Supreme Court. 5. Pension is a retirement benefit partaking of the character of regular payment to a person in consideration of past services rendered by him. 5 Pension is not bounty. It is a property and enjoys the same constitutional protection afforded to any other property. All claims to pension are regulated by the orders/rules in force at the time of the individual's retirement, release, death etc., as the case may be. In order to regulate the terms and conditions of the pension of Army Personnel Pension Regulations for Army, 1961 were framed. Pension Regulations for the Army are divided into two parts, the same are as under : Part-I : Containing regulations regulating the pensionary awards of personnel of Regular Army, the Defence Security Corps and the Territorial Army. Part-II , Containing regulations relating to delegation of powers and pension procedure affecting the personnel whose pensions are regulated by the Regulations in Part-I. 6. Section III of Chapter II of the Pension Regulations for Army Part-11 (for short the same are referred to as Regulations, 1961) is related to Disability Pensionary Awards. Regulation 48 states about primary conditions for grant of disability pension to Commissioned Officers. As per the same unless otherwise specifically provide a disability pension consisting of service element and disability element may be granted to an officer who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 per cent or above. The question whether a disability is attributable to or aggravated by 1 military service shall be determined under the rule in Appendix-11. For non-commissioned Army personnel similar provisions exist In Section IV of the Regulations, 1962. The Appendix-II consists of Entitlement Rules for Casualty Pensionary Awards. Some relevant provisions of the Entitlement Rules are reproduced as under : "5. The approach to the question of entitlement of casualty pensionary awards and evaluation of disabilities shall be based on the following presumptions : PRIOR TO AND DURING SERVICE (a) A member is presumed to have been in sound physical and mental conditions upon entering service except as to physical disabilities noted or recorded at the time of evidence. The approach to the question of entitlement of casualty pensionary awards and evaluation of disabilities shall be based on the following presumptions : PRIOR TO AND DURING SERVICE (a) A member is presumed to have been in sound physical and mental conditions upon entering service except as to physical disabilities noted or recorded at the time of evidence. (b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due to service. 7. Whether there is no note in contemporary official records of a material fact on which the claim is-based, other reliable corroborative evidence of the fact may be accepted. 8. Attributability/aggravation shall be conceded if casual connection between death/disablement and military service is certified by appropriate medical authority. ONUS OF PROOF 9. The claimant shall not be called upon to prove the conditions of entitlements. He/she will receive the benefit of any reasonable doubt. This benefit will be given more liberally to the claimants in field/afloat service cases. 14. In respect of diseases, the following rule will be observed : (a) Cases in which it is established that conditions of Military Service did not determine or contribute to the on set of the disease but influenced the subsequent courses of the disease, will fall for acceptance on the basic aggravation. (b) A disease which has led to an individual's discharge to have arisen in service, if no note of it was made at the time of the individual's acceptance for military service. However, if medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. (c) If a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. 17. MEDICAL OPINION : at initial claim stage, medical views on entitlement and assessment are given by the IMB/RMB. Normally, these views shall prevail for decision in accepting or rejecting the claim. 17. MEDICAL OPINION : at initial claim stage, medical views on entitlement and assessment are given by the IMB/RMB. Normally, these views shall prevail for decision in accepting or rejecting the claim. In case of doubt the Ministry/CCDA (Pensions) may refer such cases for second medical opinion to MA (Pensions) Sections in the office of the DGAFMS/Office of CODA (P) Allahabad, respectively. At appeal stage appropriate appellate medical authorities can review and revise the opinion of the_ medical boards on entitlement and assessment. 18. PREDISPOSITION: "Predisposition" of "inherent constitutional tendency" in itself is not a disease. And if the re is a precipitating or causative factor in service which produces the disease, then It Is attributable to service, notwithstanding the inherent disposition. 19. AGGRAVATION : If it is established that the disability was not caused by service, attributability shall not be conceded. However, aggravation by service is to be accepted unless any worsening in his condition was not due to his service or worsening did not persist on the date of discharge/claim. 7. Regulation 423 of the Regulations for the Medical Services of the Armed Forces, 1983 are also relevant for deciding present controversy. The same is, therefore, reproduced as under : "423. Attributability to Service.-(a) For the purpose of determining whether the cause of a disability or death is or is not attributable to service, it is immaterial whether the cause of giving rise to the disability or death occurred in an area declared to be a filed service/active service area or under normal peace conditions. It is however, essential to establish whether the disability or death bore a casual connection with the service conditions. All evidence, both direct and circumstantial, will be given to the individual. The evidence to be accepted as reasonable doubt, for the purpose of these instructions be of a degree of cogency, which though not reaching certainty, nevertheless carry the high degree of probability. In this connection, it will be remembered that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. If the evidence is so strong against an individual as to leave only a remote possibility in his favour, which can be dismissed with the sentence "of course it is possible but not in the least probable". The case is proved beyond reasonable doubt. If the evidence is so strong against an individual as to leave only a remote possibility in his favour, which can be dismissed with the sentence "of course it is possible but not in the least probable". The case is proved beyond reasonable doubt. If on the other hand, the evidence be so evenly balanced as to render impracticable a determine conclusion one way or the other, then the case would be one in which the benefit of doubt could be given more liberally to the individual, in cases occurring in field service/active service areas. (b) The cause of a disability or death resulting from wound or injury will be regarded as attributable to service, if the wound/injury was sustained during the actual performance of 'duty' in armed forces. In case injuries which were self-inflicted or due to an individual's own serious negligence or misconduct, the Board will also comment how far the disability resulted from self-infliction, negligence or misconduct. (c) The case of a disability or death resulting from a disease will be regarded as attributable to service when it is established that the disease arose during service and the conditions and circumstances of duty in the armed force determined and contributed to the onset of the disease. Cases, in which it is established that service conditions did not determine or contribute 1 to the onset of the disease but influenced the subsequent course of the disease, will be regarded as aggravated by the service. A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service if no note if it was made at the time of the individual's acceptance for service in the i armed forces. However, if medical opinion holds, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will be deemed to have arisen during service. (d) The question, whether a disability or death is attributable to or aggravated by service or not, will be decided as regards its medical aspects by a Medical Board or by the medical officer who signs the death certificate. The Medical Board/medical officer will specify reasons for their/his opinion. (d) The question, whether a disability or death is attributable to or aggravated by service or not, will be decided as regards its medical aspects by a Medical Board or by the medical officer who signs the death certificate. The Medical Board/medical officer will specify reasons for their/his opinion. The opinion of the Medical Board/Medical officer, in so far as it relates to the actual cause of the disability or death and the circumstances in which it originated will be regarded as final. The question whether the cause and the attendant circumstances can be attributed to service will, however, be decided by the pension sanctioning authority." 8. The petitioner's contention that a member is presumed to have been in sound physical and mental conditions upon entering service except as to physical disabilities noted or recorded at the time of evidence and, therefore, in the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due to service. Since at the time of entry no note was recorded, hence attributability/aggravation should be conceded and casual connection between disablement and military service should be regarded. The petitioner, being claimant cannot be called upon to prove the conditions of entitlements and on the contrary he will receive the benefit of any reasonable doubt. As per the provisions of the Regulations such benefits of doubt should be given more liberally to the claimants (i.e. petitioner) in field/afloat service cases. The petitioner has also submitted that a disease which has led to an individual's discharge will ordinarily be deemed to have arisen in service, if no note of it was made at the time of individual's acceptance for military service, however, if medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. Since, in the case of petitioner no note was made at initial entry in military service hence, it is presumed that the disease was only because of military service. 9. Since, in the case of petitioner no note was made at initial entry in military service hence, it is presumed that the disease was only because of military service. 9. The petitioner in support of his arguments, has relied upon various judgments including 1996 (1) WLC (Raj.) 699 Balu Singh v. UOI , 2002 (2) RLR 815 Yashpal Singh v. UOI , (2002) 5 WLC (Raj.) 107 Tara Chand v. UOI , 2002 (5) WLC (Raj.) 922 Hari Singh v. UOI , 2003 (2) WLC (Raj.) 1 Nathu Singh v. UOI , 2003 (1) WLC (Raj.) 368 Balu Singh v. UOI , 2007 (4) WLC (Raj.) 621 Major S.D. Sharma v. UOI . 10. On the other hand respondents have also relied upon various judgments in support of their contentions. As per the respondents in view of law laid down by the Hon'ble Supreme Court in (1996) 11 SCC 315 Union of India v. Baltej Singh , (2003) 2 SCC 382 Union of India v. Dhir Singh China , (2005) 13 SCC 128 Controller of 'Defence Accounts (Pension) v. S. Balchandran Nair , 2006 (5) WLC (Raj.) 28 Union of India v. Bhoora Ram , cases the petitioner's claim Is liable to be rejected. The respondents have submitted that cases cited by the petitioner cannot be relied upon in view of law laid down by the Hon'ble Supreme Court and the recent judgment of the Hon'ble Division Bench of this court. 11. It is true that for deciding pension cases, each case has to be seen from its own facts and circumstances. A person who is seeking pension is bound to establish his own case as per the rules/regulations applicable to his case. If his case falls within the ambit of the said rules/regulations the employer is bound to, grant pension benefits to the individual. It is also settled law that pension provisions should be interpreted liberally in favour of the claimant. But, if provisions are quite specific and have only one interpretation then it must be given its true meaning. 12. If his case falls within the ambit of the said rules/regulations the employer is bound to, grant pension benefits to the individual. It is also settled law that pension provisions should be interpreted liberally in favour of the claimant. But, if provisions are quite specific and have only one interpretation then it must be given its true meaning. 12. As per regulation 5 of the Pension Regulations a member is presumed to have been in sound physical and mental conditions upon entering service except as to physical disabilities noted or recorded at the time of evidence and, therefore, in the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due to service. But such presumption is depend upon further conditions mentioned in regulation 14(b) and 14(c) of the said Pension Regulations. According to the same if a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty is military service. It means that. merely arising disability during service is not sufficient. It must also be established that such disease was only because of military services. Mr. Sanjay Pareek has rightly distinguished Balu Singh's case and also Yashpal Singh's case. He has submitted that the Hon'ble Court has relied upon report of medical board and has held that disability was attributable to and aggravated by military services. So far as Tara Chand, Nathu Singh and and Hari Singh cases are concerned the same are liable to be distinguished in view of law laid down by the Hon'ble Supreme Court, in Dhir Singh China and S. Balachandra Nair cases. 13. Much emphasis was paid by Mr. Shyam Singh on Major S.D. Sharma case, whereas Mr. Sanjay Pareek has submitted that the same does not help the petitioner as in Major S.D. Sharma's case there was report of specialist in his favour. In the report it was mentioned that disease was connected with service as the disability was degeneration condition. Col. S.C. Sharma, Senior Advisor (Opthalmology) specifically held that disability was aggravated by military services. Not only this, Medical Officer Dr. Rajvir Singh also held that disability was due to service. In the report it was mentioned that disease was connected with service as the disability was degeneration condition. Col. S.C. Sharma, Senior Advisor (Opthalmology) specifically held that disability was aggravated by military services. Not only this, Medical Officer Dr. Rajvir Singh also held that disability was due to service. Yet, Brigadier without assigning any reason as to why the experts' opinion were not acceptable, recommended for re-medical examination. Even in re-medical examination , report it was mentioned that disease was connected with military service as the disability is "degeneration condition", but in another column it was submitted that it was not attributable to or aggravated by military service. Under these circumstances the Hon'ble Court has relied upon rule 9 which says that benefit of doubt goes to claimant. But, all these facts are missing in the present case, as the experts have clearly opined that disease was not due to military. Thus, it is clear that case of Major S.D. Sharma also does not help the petitioner. 14. Mr. Sanjay Pareek has relied upon a recent decision of Hon'ble 1 Division Bench of this Court, reported in 2006(5) WLC (Raj.) 28. Relevant paras of this case are as under : "The claim of the respondent has to be considered in the light of the above provisions. As indicated above, the sheet-anchor of the respondent's case in paragraph 7(b) of Appendix II to the Pension Regulations. The word of-significance are "deemed to have arisen". The deeming clause expressed by the words "deemed to be" or "deemed to have" is used In a statute to create a legal fiction for believing something as real which is apparently not so. This however, does not fit in the present context, for, to be entitled to disability pension the disease must be established factually to have been caused by i.e. "attributable to or aggravated by" military service. In interpreting the provision creating a legal fiction, the Court has to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. But in so construing the fiction, it is not to be extended beyond the purpose for which it is created, or beyond the language of the section by which it is created. But in so construing the fiction, it is not to be extended beyond the purpose for which it is created, or beyond the language of the section by which it is created. From a reading of the aforesaid provisions it would appear that the fiction if any is circumscribed by conditions and conditions and guidelines contained there and, therefore, in every case, it cannot be said that because the existence of the disease was not noted at the time of enrollment it must have been caused by military service. There should be, among either things, a casual connection between the disability and the service conditions vide regulation 423(a) quoted above. 2. "Deemed to have" in para 7(b) to our mind appears to have been loosely used in the sense "presumed to have." In other words, in terms of paragraph 7(b) a disease which led to discharge will be presumed to have arisen in service if no note of it was made at the time of enrollment in the military service. Presumption however, is not conclusive proof of a fact. Section 4 of the Evidence Act lays down that whenever it is directed by the unless and until it is disproved. Presumption thus, is always rebuttable which is evident from the latter part of clause (b) itself in terms of which if the medical opinion is to contrary, the disease will not be deemed to have arisen during service. Thus, the presumption arising from absence of note regarding existence of any disease at the time of enrollment may be rebutted by medical opinion. The decision in Chattar Singh or Tejpal Singh (supra) and other cases proceeded on the assumption as if presumption under paragraph 7(b) was conclusive proof. Other cognate provisions referred to above were not brought to the notice of the Court. What is required to terms of paragraph 7(b) Is that the medical opinion that the disease did not arise during service i.e. it was not attributable to or aggravated by military service should be accompanied by reasons. 3. Counsel for the respondent in the circumstances submitted, and to some extent rightly, that the Medical Board was required to give reasons for holding that the disease was not attributable or aggravated by military service and where reasons are not assigned the disability pension cannot be denied. 3. Counsel for the respondent in the circumstances submitted, and to some extent rightly, that the Medical Board was required to give reasons for holding that the disease was not attributable or aggravated by military service and where reasons are not assigned the disability pension cannot be denied. As a general proposition the submission is well founded and accordingly we called upon counsel for the appellants to produce the relevant records to find out the reasons. 4. The record among other things contains the proceedings of the Medical Board. The proceeding sheet is in three parts. The third part contains opinion of the Medical Board. In column II thereof are sub-columns meant for reasons perusal of which shows that the Medical Board came to a definite conclusion that both the disease were not attributable to or aggravated by military service. The disease were found to be constitutional in nature. As regards Lenticular Bilateral Opacities the disease was found to have developed at the age of 42 years when the respondent was posted in Ileace area. Partial seizure was also contracted while serving in peace area. There was no evidence of any head. Injury which could have caused or aggravated the disease. In sub-column (d) the disease was described as idiopathic disorder, not connected with service. 5. The point for consideration is whether this Court can sit in appeal over the opinion of the Medical Board? The point is not res Integra. Reference may be made to Union of India v. Baljeet Singh, (1996) 11 SCC 315 and the following observation therein may usefully be noticed : "....It is seen that various criteria have been prescribed in the guidelines under the Rules as to when the disease or injury is attributable to the military service. It is seen that under rule 173 disability pension would be computed only when disability has occurred due to a would, injury or disease which is-, . utable to military service or existed before or arose during militai y service and has been and remains aggravated during the military service and has been and remains aggravated during the military 'service. If these conditions are satisfied, necessarily the incumbent is entitled to the disability pension. This is made amply clear from clauses (a) to (d) of para 7 which contemplates that in respect of a disease the Rules enumerated' thereunder replied to be observed. If these conditions are satisfied, necessarily the incumbent is entitled to the disability pension. This is made amply clear from clauses (a) to (d) of para 7 which contemplates that in respect of a disease the Rules enumerated' thereunder replied to be observed. Clause (c) provides that if a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined contributed to the onset of the disease and the conditions were due to the circumstances of duty in military service. Unless these conditions are satisfied, it cannot be said that the sustenance of injury per se is on account of military service. In view of the report of the Medical Board of doctors, it is not due to military service. The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service. In each case, when a disability pension is sought for and made a claim, it must be affirmatively established, as a fact, as to whether the injury sustained was due to military service or was aggravated which contributed to invalidation for the military service. In each case, when a disability is sought for and made a claim, it must be affirmatively established as a fact, as to whether the injury sustained was due to military service or was aggravated which contributed to invalidation for the military service." 6. Reference may also be made to Union of India v. Dhir Singh China, (2003) 2 SCC 382 , and relevant observation therefrom may be quoted as under : ....We have already referred to the opinion of the Medical Board which found that the two disabilities from which the respondent was suffering were not attributable to or aggravated by military service. Clearly, therefore, the opinion of the Medical Board ruled out the applicability of Regulation 53 of the case of the respondent. The diseases from which he was suffering were not found to be attributable to or aggravated by military service, and were in the nature of constitutional diseases. Such being the opinion of the Medical Board, in our view the respondent can derive no benefit from Regulation 53. The opinion of the Medical Board has not been assailed in this proceeding and, therefore, must be accepted." 7. Such being the opinion of the Medical Board, in our view the respondent can derive no benefit from Regulation 53. The opinion of the Medical Board has not been assailed in this proceeding and, therefore, must be accepted." 7. The above two decisions were noticed and followed by the Supreme Court in Union of India v. S. Balachandran Nair (supra). The Supreme Court held that in view of the legal position referred to above the fact that the Medical Board's opinion was to the effect that the illness suffered by the respondent was not attributable to or aggravated by military service, the High Court was not justified in allowing the claim of disability pension. 8. It may be relevant to mention here that the appellants in the reply before the Single Judge stated that manner in which the claim for disability pension is examined at different levels. As per rule 27(c) of Pension Regulations the Joint Director AFMS who is an officer under Director General Armed Forces Medical Service attached as a Medical Advisor (Pension) in consistency in assessment of disabilities. Based on the physical examination of the person, the invalidating medical board/release medical board/resurvey medical board makes recommendations regarding attributability of his invaliding disability to service conditions and extent thereof in case of such and on medical issues consults the Joint director AFMS/DGAFMS. These authorities after careful consideration of all medical records, record their pension sanctioning authority is required to take extent thereof. The considering while sanctioning disability pension. The Joint Director, AFMS the provisions contained in the Guide to Medical Officer. At the appellate authority, namely, Deputy DGAFMS (Pensions) DGAFMS who give their views on medical issues on the first and final appeals. 9. It would thus appear that no only at the stage of medical board but also at the stage of grant of pension including disability pension, and the appellate stage, the matter is processed by experts at various levels and on the basis of the expert opinion and on consideration of the record the decision is arrived at." 15. From perusal of the aforesaid case it is clear that the petitioner's claim for granting disability pension has rightly been rejected by the respondents and does not warrant any interference. The ratio laid down by this court in Bhoora Ram's case are fully attracted in the present case. 16. Consequently, I dismiss the writ petition. From perusal of the aforesaid case it is clear that the petitioner's claim for granting disability pension has rightly been rejected by the respondents and does not warrant any interference. The ratio laid down by this court in Bhoora Ram's case are fully attracted in the present case. 16. Consequently, I dismiss the writ petition. No order as to costs.Writ Petition dismissed. *******