REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTON

CIVIL APPEAL NO. 1002 OF 2006

UNION OF INDIA & OTHERS …APPELLANTS

VERSUS

AJAY WAHI …RESPONDENT

J U D G M E N T

C.K. PRASAD, J.

1. Union of India and its functionaries, aggrieved by the

order dated 28

th

November, 2003 passed by the Division Bench

of the Rajasthan High Court (Jaipur Bench) in DB Civil Special

Appeal No.1461 of 1997, have preferred this appeal by special

leave of the Court.

2.Shorn of unnecessary details, facts giving rise to this

appeal are that the writ petitioner-respondent, Lt.Col.Ajay

Wahi (hereinafter referred to as the ‘writ petitioner’) was

commissioned in the Army Medical Corps on 27

th

February,

1977. While in service and holding the rank of Major he was

admitted to Command Hospital on 3

rd

October, 1988 for

management and treatment of Bronchial Asthma and low back

ache. Medical Board proceeding dated 6

th

October, 1988 does

not indicate that the disability i.e. Bronchial Asthma or low

back ache was directly attributable to military service.

However, the Medical Board certified that it is aggravated by

stress and strain of exposure to hostile terrain and weather.

The writ petitioner was later on examined on 9

th

June, 1990 by

Col. T.R.S. Bedi, Senior Adviser of Base Hospital who

recommended for his posting at dry temperate climate area

and not at high altitude. While writ petitioner was holding the

rank of Lieutenant Colonel, by letter dated 27

th

December,

1993, he sought premature retirement, inter alia, stating that

his “falling health is affecting” his performance. On his

prayer for premature retirement the Commanding Officer

recommended for consideration of his case for

“invalidment/premature retirement after obtaining the opinion

of a Senior Adviser”. He was neither called upon to appear

2

before the Medical Board nor invalided on medical ground.

However, by order dated 26

th

July, 1994, writ petitioner’s

prayer for premature retirement was approved and he was

allowed to leave the unit on 20

th

October, 1994. Writ petitioner

made claim for grant of disability pension. His prayer was

considered and by letter dated 30

th

March, 1995, he was

informed that he is neither entitled for service pension nor

disability pension. Writ petitioner wrote to the Director

General of Medical Services(Army) to make him available the

copy of the Medical Board proceedings, inter alia, alleging that

he underwent a Release Medical Board prior to retirement. It

is assertion of the writ petitioner that he ought to have been

granted premature retirement on medical ground and sought

voluntary retirement under pressure and, therefore, entitled to

disability pension.

3.Aggrieved by the denial of disability pension he filed writ

petition before the Rajasthan High Court, inter alia,

contending that Regulation 50 of the Pension Regulations

providing that an officer who retires voluntarily shall not be

3

eligible for disability pension is discriminatory and violative of

Article 14 of the Constitution of India. It was emphasized that

when an officer is invalided out of service on account of

disability attributable to the military service is granted

disability pension, there is no rationale basis to deny the same

to an officer who has been granted voluntary retirement on

medical ground. The aforesaid submission did not find favour

with the learned Single Judge and he dismissed the writ

petition by order dated 15

th

May, 1997 inter alia observing as

follows :

“Regulations 48 and 50 are contained in Section III

which deals with the disability pensionary award. Regulation

50 clearly provides that an officer who retires voluntarily shall

not be eligible for any disability pensionary award on account

of any disability. Since the petitioner has sought voluntary

retirement, he is not entitled to any disability pension award.

Regulation 48 is not applicable to the case of the petitioner

because the Regulation 48 applies only when an officer is

retired from military service on account of the disability or

attaining the superannuation age. The petitioner was

voluntarily retired and, therefore, under Regulation 50, he is

not entitled to any pensionary award.

I do not think that the Regulation 50 is violative of

Article 14 of the Constitution of India. The class of officers

who retire voluntarily is quite distinguishable from the class of

officers who are retired on account of disability or attaining

the superannuation age. The classification of both the said

classes of officers is obviously founded on an intelligible

differentia which distinguishes persons of one class from

another class and the differentia does have a rational relation

to the object sought to be achieved by regulations 48 and 50

4

in relation to the disability pensionary awards. In my

opinion, the regulation 50 cannot be said to be ultra vires.”

4.On appeal, the Division Bench of the High Court set

aside the order of the learned Single Judge and directed for

payment of disability pension and while doing so it relied on a

Judgment of the Delhi High Court in the case of Lt. Col. B.R.

Malhotra vs. U.O.I. & Ors. [71(1998) Delhi Law Times 498]

relevant portion whereof reads as follows:

“I find no justification to deprive an officer his disability

pension simply on the ground that he sought voluntary

retirement. If on account of disability Army can invalidate an

Officer and thrown him out of the service then why an Officer

is denied disability pension when he seeks voluntary

retirement. I find no reason for this discrimination. People

who become disable due to Military service are a class apart,

they cannot be discriminated nor denied disability pension on

the ground of voluntary retirement. I see no justification nor

any nexus in depriving this class of Officers the disability

pension merely because they sought voluntary retirement, the

disability does not cease on voluntary retirement. Hence, to

my mind, Rule 50 of the Pension Regulation is discriminatory.

It cannot stands the test being arbitrary and bad in law.”

5.Ultimately, the Division Bench directed for grant of

disability pension to the writ petitioner and while doing so

observed as follows :

“Considering the view and object behind the provision

for allowing the disability pension, when admittedly the

officer has become disabled and cannot remain in service,

whether he has been voluntary retired or compulsorily retired

5

that is immaterial for the purpose of pension to the person

who become disabled during service.”

6.Union of India and its officers, aggrieved by the aforesaid

order, are before us by grant of special leave to appeal.

7.Mr. P.P. Malhotra, learned Additional Solicitor General

contends that writ petitioner sought voluntary retirement on

medical ground and, therefore, cannot be said to be invalided

out of service on account of disability attributable to or

aggravated by military service. He points out that a

comprehensive procedure is prescribed in Appendix II of

Pension Regulations to determine as to whether a disability is

attributable to or aggravated by military service. He points out

that disability of the petitioner was not determined under the

Rules in Appendix II and the writ petitioner sought voluntary

retirement claiming ill health, hence, it cannot be said that he

was invalided out of service on account of disability

attributable to or aggravated by military service. He submits

that in view of Regulation 50 of Pension Regulations, writ

6

petitioner having retired voluntarily shall not be eligible for

award of pension on account of any disability.

8.Mrs. Amita Duggal, however, appearing on behalf of the

writ petitioner-respondent submits that the writ petitioner

sought voluntary retirement on medical ground and though he

was not invalided out of service on account of disability, no

distinction can be made between officer who has been

invalided on account of a disability attributable or aggravated

by military service and an officer who retired voluntarily and,

therefore, the action of the respondent in denying the

disability pension is illegal. She points out that Regulation 50

which provides that an officer retiring voluntarily shall not be

eligible for award of disability pension is discriminatory and,

therefore, violative of Article 14 of the Constitution of India.

She referred to the decision of the Delhi High Court in the case

of Lt.Col.B.R. Malhotra (supra) relied on in the impugned

order. She points out that the Union of India having not

challenged the aforesaid judgment of the Delhi High Court, it

has attained finality and, therefore, action of the Union of

7

India in denying the writ petitioner disability pension is

discriminatory.

9.Mrs. Duggal has also placed reliance on a Division Bench

Judgment of the Delhi High Court in the case of Mahavir

Singh Narwal vs. Union of India and another [111(2004]

Delhi Law Times 550] and she had drawn our attention to the

following passage from paragraph 7 of the judgment, which

reads as follows :

“Merely because a person has attained discharge on

compassionate ground although his disability has been

acquired on account of stress and strain of military service

will not be a ground to reject the claim of disability pension, it

has been invalidated act in terms of Appendix II of Rule 173.

We allow the writ petition and direct the respondent to grant

disability pension to the petitioner on the basis of assessment

of 30% disability as opined by the Release Medical Board in

the year 1979 upto date. For future disability pension the

respondent may conduct another medical board to assess the

percentage of disability of the petitioner. Arrears of disability

pension be paid to the petitioner within a period of 8 weeks.

If the same are not paid within 8 weeks the petitioner shall be

entitled to the interest at the rate of 9% on the amount of

arrears. With these directions the writ petition is allowed.”

10.Rival submission necessitates examination of the scheme

of the Pension Regulation. Section III of the Pension

Regulations (hereinafter referred to as the “Regulations”)

8

applies to all commissioned officers of the Army. Regulation 48

of the Regulations which forms part of Section-III, provides for

grant of disability pension to an officer who is invalided out of

service on account of disability attributable to or aggravated

by military service and Appendix II provides for the procedure

for determination of the disability, the same reads as follows:

“48(a) Unless otherwise specifically provided 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 casuality cases and is

assessed at 30 percent or more.

(b)The question whether a disability is attributable to or

aggravated by military service shall be determined under the

rules in Appendix II.”

11.Regulation 50 of the Regulations provides that an officer

who retires voluntarily shall not be eligible for any award of

disability pension, same reads as follows:

“50. An officer who retires voluntarily shall not be eligible for

any award on account of any disability.

Provided that officer who is due for retirement on

completion of tenure, or on completion of service limits or on

completion of the terms of engagement or on attaining the

prescribed age of retirement, and who seeks pre-mature

retirement for the purpose of getting higher commutation value

of pension, shall remain eligible for disability element.”

9

12.From a plain reading of Regulation 48 of the Regulations

it is evident that unless otherwise specifically provided a

disability pension shall be granted to an officer who is

invalided out of service on account of disability attributable to

or aggravated by military service, whereas Regulation 50 in no

uncertain terms provides that an officer who retires voluntarily

shall not be eligible for any award on account of any disability.

Undisputedly, writ petitioner has not been invalided out of

service on account of any disability attributable or aggravated

by military service and further his disability has not been

determined under the Rules in Appendix II. Writ petitioner

had sought voluntary retirement on medical ground which was

granted. In face of the language of Regulation 50 there is no

escape from the conclusion that an officer retiring voluntarily

shall not be eligible for disability pension.

13.Faced with this situation, writ petitioner contends that

Regulation 50 of the Regulations is discriminatory and thus

violative of Article 14 of the Constitution of India.

10

14.Regulation 48 of the Regulations provides for disability

pension to officers who are invalided out of service on account

of disability attributable to the military service and, therefore,

such officers constitute a class in itself. Officers who retire

voluntarily constitute a different class altogether and,

therefore, the plea that when an officer is invalided on the

ground of disability attributable to the military service, there is

no reason to deny such disability pension to an officer who

seeks voluntary retirement does not appeal to us as in our

opinion both constitute different and distinct classes. Article

14 of the Constitution frowns on discrimination but it permits

reasonable classification. An officer who retires voluntarily and

another who is invalided out of service on account of disability

attributable to military service constitute different and distinct

classes. Undisputedly, writ petition has not been invalided

out of service on account of disability which is attributable to

military service but retired voluntarily. Voluntary retirement

can be sought and granted on many grounds, whereas an

officer under Regulation 48 of the Regulations can be invalided

out of service on account of disability attributable to military

11

service. It is to be borne in mind that if employer despite

disability attributable to Military Service does not invalided an

officer out of service, he continues in service with all the

benefits and nobody can make issue of that. It is not the case

of the writ petitioner that he was asked to seek voluntary

retirement on the threat of being invalided out of service. In

fact, he had chosen to seek voluntary retirement on health

ground which was granted and it was not the act of the

employer to invalided him out of service. We are of the opinion

that the observation of the High Court that an officer cannot

be denied disability pension on the ground of voluntary

retirement suffers from fundamental error. Officers invalided

out of service and seeking voluntary retirement, which can be

on umpteen grounds, constitute different and distinct class

than invalidation from service on the ground of disability

attributable or aggravated by Military Service. It needs no

discussion that a provision of the Statute can be declared

ultravires only when it patently violates some provision of the

Constitution. Regulation under challenge, in our opinion,

does not suffer from any such error.

12

15.We would like here to add that sufficient internal

safeguard and remedy have been provided under Appendix II

of the Regulation. We hasten to add that in case an officer is

denied invalidation from service despite disability attributable

to military service, the same shall be subject to judicial review.

There may be a case in which an officer had suffered disability

attributable to or aggravated by military service and he has

not been invalided out of service only to deny him the

disability pension, his remedy is to challenge the order by

which prayer for invalidating out of service is denied. In case

it is found that an officer is entitled for invalidation out of

service has wrongly been denied the same, he shall be entitled

for disability pension. Here no such challenge is made and the

only plea of the writ petitioner is that Regulation 50 of the

Regulations providing that an officer retiring voluntarily shall

not be eligible for disability pension is discriminatory and thus

ultra vires of the Article 14 of the Constitution of India.

16.True it is that the judgment of the Delhi High Court in

the case of Lt.Col.B.R. Malhotra (Supra) supports the

13

contention of the writ petitioner but from what we have

pointed above, its observation that “people who become

disable due to military service are a class apart, they cannot

be discriminated nor denied disability pension on the ground

of voluntary retirement” is patently fallacious.

17. In the present case it has not been determined in

accordance with Appendix II of the Regulations that writ

petitioner’s voluntary retirement was accepted on the ground

of disability attributable to or aggravated by military service

and, therefore, he shall not be entitled for disability pension.

In view of the aforesaid the judgment of the Delhi High Court

in the case of Mahavir Singh Narwal (Supra) has no bearing

at all.

18. We are of the opinion that an officer is entitled for

disability pension only when he is invalided out of service on

account of disability attributable to military service or

aggravated thereby and shall not be entitled for disability

pension in case of voluntary retirement, unless it is found and

14

held that the officer deserved to be invalided out of service on

account of disability attributable to military service but the

same was not granted to him for unjustified reasons and

forced to seek voluntary retirement.

19.In the result, the appeal is allowed, the impugned

judgment of the Division Bench of the High Court is set aside

and that of the learned Single Judge is restored. No costs.

………………………………….J.

( G.S. SINGHVI )

………………………………….J.

( C.K. PRASAD )

New Delhi,

July 6, 2010.

15