Union Of India & Ors vs Ajay Wahi

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 :

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. 11

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.