Union of
India & Ors. Vs. Ajay Wahi [2010] INSC 455 (6 July 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTON CIVIL APPEAL NO. 1002 OF
2006 UNION OF INDIA & OTHERS ...APPELLANTS VERSUS
C.K.
PRASAD, J.
1.
Union of India and its functionaries, aggrieved by the order dated
28th 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 2 commissioned in the Army Medical Corps on 27th
February, 1977. While in service and holding the rank of Major he was admitted
to Command Hospital on 3rd October, 1988 for management and treatment of
Bronchial Asthma and low back ache. Medical Board proceeding dated 6th 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 27th 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 3 before the Medical Board
nor invalided on medical ground.
However,
by order dated 26th July, 1994, writ petitioner's prayer for premature
retirement was approved and he was allowed to leave the unit on 20th October,
1994. Writ petitioner made claim for grant of disability pension. His prayer
was considered and by letter dated 30th 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 4 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 15th
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 5 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 6 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 7 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 8 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") 9 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."
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.
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 12 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.
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 14 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 15 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.
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