1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4076 OF 2003 MAJOR PRAKASH GOVIND ) DEVAL (Retd.), Age 49 years, ) Occ.Nil, r/o. Deval Complex, ) High School Road, A/p. Miraj, ) Dist. Sangli – 416 410. ).. ... Petitioner. Versus 1) UNION OF INDIA, ) Ministry of Defence, ) Through its Secretary, ) having office at 101, South ) Block, New Delhi. ) 2) THE DIRECTOR, PENSION ) SECTION 4, Adjutant ) Generals Branch, Army ) Quarters, DHQPO, New ) Delhi – 110 001. ).. ..... Respondents. Mr. Uday Warunjikar for the Petitioner. Mr. P. M. Pradhan with Mr. J. C. Satpute and Mr. H. D. Rathod for the Respondents. 2 CORAM : BILAL NAZKI and J. H. BHATIA, JJ. RESERVED ON: 29TH SEPTEMBER, 2008. PRONOUNCED ON : 14TH JANUARY, 2009. (In Chamber at 5.00 p.m.) JUDGMENT (Per Bilal Nazki,J.) : The petitioner joined Indian Army as an Infantry Officer on 12th December, 1975. According to him he was informed by the respondents on 24th March 1995 that he will not be considered for any further promotion. Therefore, he opted for voluntary retirement after completion of 20 years of service. In the year 1994, he got a low medical category and he continued in the same category till he accepted the voluntary retirement. According to him, the Medical Board was of the opinion that his disability was 20% and it had got aggravated by the Military Services. According to the petitioner, since he retired because of medical disability he was entitled to disability pension in terms of the Rules framed by the Respondents. 2. On 25th November, 1996 an order of retiremnet was passed. After his retirement he was paid the voluntary retirement benefits and also the pension but the disability pension was not paid. He entered into correspondence with the respondents and accordingly on 13th February, 3 1999 he addressed a letter to respondent No.2 making request for grant of disability pension. He also sent reminders on 13th September, 2000 and 19th January, 2001. On 30th March, 2001 a reply was received by the petitioner from the office of respondent No.2 informing him that he was not entitled to disability pension in terms of paragraph 50 of Pension Regulation for Army, 1962 Part - I. Thereafter, certain correspondence was entered into by the Sangli District Ex-Servicemen Welfare Association with respondent No.2, but nothing happened in the matter. He went on making representation and an order was communicated to him on 22nd April, 2002. This order was challenged by the petitioner before this Court. On 3rd December, 2002. this Court disposed of the petition directing the respondents to take appropriate decision immediately, preferably before 31st March, 2003 in respect of the claim of the petitioner. 3. The petitioner made again representation and also personally visited the office of the respondents at Delhi. On 17th April, 2003 the petitioner filed contempt petition before this Court. After filing of the contempt petition, the respondents took a decision on 29th April, 2003 which was communicated to the petitioner rejecting his application, hence this petition is again being filed. 4. During the pendency of this petition, the respondents also sought 4 leave of the Court and amended this petition and added another prayer that Regulation 50 of Pension Regulations for Army Part I of 1961 be declared ultra vires to Articles 14 and 19 of the Constitution of India. The respondents have filed their counter affidavits. The facts have not been disputed in the counters. But it is contended that since the petitioner had opted for premature retirement voluntarily, he was not entitled to disability pension in terms of Regulation 50. It is contended that in terms of Regulation 50 a person who retires voluntarily is not eligible to disability pension. Regulation 50 lays down : “50. An Officer who retires voluntarily shall not be eligible for an award on account of any disability.” Then an exception has been added to the said Regulation 50, which lays down: "An officer who is due for retirement on account of age or on completion of tenure and who seeks pre-mature retirement within a month of his due date of retirement for the purpose of getting higher commutation value, will remain eligible for disability element in terms of Regulations 53 and 54”. The petitioner, admittedly is not entitled to pension under Regulation 50. He does not fall within the exception. Therefore, he has challenged the 5 exception as being violative of Articles 14 and 19 of the Constitution of India although there has been no basis laid down for such a challenge. It is stated that the question of invalid pension would only arise if the petitioner had been retired on account of invalidment. The petitioner on the other hand was never invalidated but because he lost chance of his promotion because of his health condition, he voluntarily sought retirement to seek employment / resettlement in civil life. In any case, we do not feel Regulation 50, is ultra vires to any provisions of the Constitution because it creates an exception and lays down that the disability pension can be given to person who seeks premature retirement within a month of due date of retirement for the purpose of higher commutation value, does not make rule violative of any of the provisions of the Constitution. 5. For these reasons, we do not find any merit in this writ petition, which is, accordingly, dismissed. Sd/- (BILAL NAZKI, J.) Sd/- (J. H. BHATIA, J.)