LPA/164/2007 on 29 December 2011

1. This appeal by the Union of India is directed against the judgement dated 22.6.2007 delivered by a learned Single Judge of this Court whereby he held that the respondent (hereinafter referred to as the writ petitioner) was entitled to disability pension w.e.f. 1.2.2005.

2. Briefly stated the facts relevant for decision of the case are that the writ petitioner joined Indian Army as a Sepoy on 8th October, 1979. He admittedly suffered an injury in a mine blast on 5.1.2002. As a result of the mine blast he was placed in the low medical category. He was asked to appear before the Re- survey Medical Board which recommended that he is fit to be released from service. The petitioner was not discharged from service but was given alternative shelter appointment in the army itself. The petitioner thereafter sought discharge from the army on compassionate grounds. His request was accepted and he was retired from service. Though the petitioner was granted pension and other benefits but he was not granted disability pension on the ground that he had been discharged from service on his own request since he had sought voluntary discharge on compassionate grounds.

3. At the outset, we may state that it is not disputed that the writ petitioner suffered an injury due to a mine blast, which has led to a disability of 30%. The learned Single Judge relying upon the judgement of the Delhi High Court in Ex. Subedar Baljor Singh vs. Union of India and other, 1997 LAB I.C. 1818 came to the conclusion that even if it is the ex-serviceman who seeks discharge from service on medical grounds then also the same has to be treated as discharge on medical grounds and therefore, he would be entitled to disability pension. This judgement is under challenge before us.

4. Shri Sandeep Sharma, learned Assistant Solicitor General of India appearing for the Union of India has placed before us a judgement of the Supreme Court in Civil Appeal No. 1002 of

2006 tittled as Union of India and others vs. Ajay Wahi decided on 6.7.2010. The question before the Apex Court was whether an ex-serviceman who seeks voluntary retirement or discharge from army is eligible for disability pension. The second question before the Apex Court was whether Regulation 50 of the Pension Regulations which provides that an officer who retires voluntarily shall not be eligible for disability pension is discriminatory and violative of Article 14 of the Constitution of India. The Apex Court has specifically overruled the judgement of the Delhi High Court in the case of Lt. Col. B.R.Malhotra Vs. U.O.I and others. [71(1998) Delhi Law Times 498]. The Apex Court after considering the provisions of Rule 173 and Regulations 48 and 50 of the Pension Regulations held as follows:- “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.

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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 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 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 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.”

5. In the present case the petitioner was not invalided from service but he was provided shelter appointment and he continued to get the same salary as before. In case the petitioner was aggrieved by the action of the Union of India in not invaliding him out of service he could have challenged the said order. He chose not to do so but continue to serve in the army and thereafter sought discharge from the army service on the following grounds:- (a) My wife is ill since last 5 years and she is under treatment at Civil Hospital. Due to this reason my children education is also getting hampered.

(b) I am unable to do hard work of the Army.

(c) I am having 20 kanal agricultural land which is barren without its look after.

6. As far as the grounds (a) and (c) are concerned they have no connection to his disability. Ground (b) may be in a sense related to his disability but it cannot be said by any stretch of imagination that it was this disability which led to his being boarded out of service.

7. This request of the petitioner for discharge was duly recommended and his prayer for discharge from service was accepted. The petitioner having been discharged on his own request on grounds some of which have no connection with the disability cannot now claim that he was invalided out of service. The Apex Court in no uncertain terms has held that only those persons who are invalided out of service are entitled to disability pension and those who seek voluntary retirement even on medical grounds are not entitled to such benefit. The Apex Court has specifically set-aside the judgement of the Delhi High

Court, which had taken the view that Regulation 50 was discriminatory and violative of Article 14 of the Constitution of India.

8. In view of the law laid down by the Apex Court, we have no other option but to set-aside the judgement of the learned Single Judge and dismiss the writ petition.

9. At this stage, Ms. Salochna Kaundal, learned counsel for the writ petitioner, submits that the petitioner is still willing to serve in the army. The writ petition was filed in the year 2006 and the petitioner by now has reached his normal age of retirement and we cannot set the clock back at this stage. The petitioner of his own sought voluntary retirement which prayer was accepted and at this stage cannot be heard to urge anything to the contrary.

10. In view of the above discussion, the appeal is allowed. The judgement of the learned Single Judge is set-aside and the writ petition is dismissed. No costs.

( Deepak Gupta )

Judge.

29th December, 2011

( V.K.Ahuja )

™

Judge.