UNION OF INDIA & OTHERSversusAJAY WAHI

                     [2010] 7 S.C.R. 777


                UNION OP INDIA & OTHERS                             A
                               v.
                         AJAY WAHi
               (Civil Appeal No. 1002 of 2006)

                         JULY 6, 2010
                                                                    B
          [G.S. SINGHVI AND C.K. PRASAD, JJ.]

     Service Law:

     Armed Forces - Army - Disability pension -                     c
Commissioned Officer in Army Medical Corps - Sought
voluntary retirement on medical ground - Claim for disability
pension - HELD: An Officer is entitled to disability pension
only when he is invalided out of service on account of
disability attributable to military service or aggravated thereby   0
and not when his prayer for voluntary retirement is granted -
However, the c{ecision denying invalidation from service
despite disability attributable to military service would be
subject to judicial review - In the instant case, the officer has
not been invalided out of service on account of disability          E
attributable to or aggravated by military service nor his
disability has been determined under the Rules in _Appendix-
/I and, therefore, he shall not be entitled to disability pension
- Army Pension Regulations - Regulations 48 and 50.

     Constitution of India, 1950:                                   F

     Articles 14 and 16 - Constitutional validity of Regulation
50 of Army Regulations - HELD: Officers who are invalided
out of service on account of disability attributable to or
aggravated by military service constitute a class in itself and     G
officers who retire voluntarily on medical ground constitute a
different class - Article 14 frowns on discrimination, but
permits reasonable classification - Thus, Regulation 50
prescribing that an officer retiring voluntarily shall not be
                              777                                   H
    778      SUPREME COURT REPORTS                      [201 O] 7 S.C.R.


A eligible for disability pension cannot be said to be
  discriminatory, nor ultra vires Article 14 - Army Pension
  Regulations - Regulation 50.

       The respondent, a Lt. Colonel in the Army Medical
  Corps, was admitted to the Command Hospital for
8
  treatment of Bronchial Asthma and lower backache. The
  respondent sought premature retirement on medical
  ground. The prayer of the respondent for premature
  retirement was granted, but, his claim for disability
C pension was not accepted. He filed a writ petition, inter
  alia, contending that Regulation 50 of the Army Pension
  Regulations prescribing that an officer who retired
  voluntarily, would not be entitled to disability pension,
  was discriminatory and violative of Article 14 of the
  Constitution of India. The single Judge of the High Court
D dismissed the writ petition, but the Division Bench,
  relying upon Lt. Col. B.R. Malhotra's case 1 allowed the
  prayer. Aggrieved, the employers filed the appeal.

          Allowing the appeal, the Court
E
       HELD: 1.1. An officer is entitled to 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 to disability pension in
  case of voluntary retirement, unless it is found and held
F 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
  he was forced to seek voluntary retirement. [para 18] [789-
  B-C]
G
       1.2. Undisputedly, the writ petitioner has not been
  invalided out of service on account of any disability
  attributable to or aggravated by military service and
  further, his disability has not been determined in
H 1. Lt. Col. B.R. Malhotra vs. U.0.1. & Ors. 71 (1998) Delhi law Times 498.
        UNION OF INDIA & ORS. v. AJAY WAHi                  779

accordance with the Rules in Appendix\11. He had sought            A
voluntary retirement on medical ground which was
granted. In the face of the language of Regulation 50,
there is no escape from the conclusion that an offi,cer
retiring voluntarily shall not be eligible for disability
pension. [para 12] [786-G-H; 787-A]                                B

    2.1. A provision of a Statute can be declared ultra
vires only when it patently violates some provision of the
Constitution. The Regulation under challenge does not
suffer from any such error. [para 14) (788-8)
                                                                   c
     2.2. Regulation 48 of the Regulations provides for
disability pension to officers who are invalided out of
service on account of nisability attributable to the military
service and, therefore, such officers constitute a class in
itself. Officers who retire voluntarily constitute a different     D
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 hold ground as both constitute                 E
different and distinct classes. 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 the            F
employer, despite disability attributable to military service,
has not invalided an officer out of service, he continues
in service with all the benefits. 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       G
had chosen to seek voluntary retirement on health
ground which was granted. [para 14) [787-B-G]

   Lt. Col. B.R. Malhotra vs. U.0.1. & Ors. 71(1998) Delhi
Law Times 498, disapproved.
                                                                   H
    780      SUPREME COURT REPORTS               [2010] 7 S.C.R


A      2.3. Sufficient internal safeguard and remedy hav1::
  been provided under Appendix II to the Regulations.
  Besides, in case an officer is denied invalidation from
  service despite disability attributable to military service,
  the same shall be subject to judicial review. [para 15] [788-
B C-D]
          Mahavir Singh Narwal vs. Union of India and another 111
    (2004) Delhi Law Times 550, held inapplicable.

                          Case Law Reference:
c     71(1998) Delhi Law           disapproved         para 4
      Times 498

      111 (2004) Delhi Law         held inapplicable    para 9
      Times 550
D
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    1002 of 2006.

      From the Judgment & Order dated 28.11.2003 of the High
  Court of Rajasthan at Jaipur in DB Civil Appeal No. 1461 of
E 1997.

        P.P. Malhotra, ASG, M. Khairati, Anil Katiyar for the
    Appellants.

          Arnita Duggal, Rajiv Mehta, A. Henry for the Respondent.
F
          The Judgment of the Court was delivered by

       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)
G 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
H (hereinafter referred to as the 'writ petitioner') was
          UNION OF INDIA & ORS. v. AJAY WAHi                     781
                  [C.K. PRASAD, J.]
  commissioned in the Army Medical Corps on 27th February, A
   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 B
  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 9th June, 1990 by Col. T.R.S. Bedi,
  Senior Adviser of Base Hospital who recommended for his c
  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 a/ia, stating that his "falling health is affecting"
  his performance. On his prayer for premature retirement the D
  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 before the Medical Board nor invalided on medical
· ground. However, by order dated 26th July, 1994, writ E
  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 F
  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 G
  voluntary retireme11t 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       H
    782       SUPREME COURT REPORTS                    [2010] 7 S.C.R.


A   that Regulation 50 of the Pension Regulations providing 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. It was emphasized that when an
    officer is invalided out of service on account of disability
s   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
c   May, 1997 inter alia observing as follows:

                "Regulations 48 and 50 are contained in Section Ill
          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
D         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
E         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.

F                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
G
          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 in relation to the disability pensionary

H
            UNION OF !NOIA & ORS. v. AJAY WAHi                     783
                    [C.K. PRASAD, J.]
        awards. In my opinion, the regulation 50 cannot be said           A
        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
                                                                          B
    Judgment of the Delhi High Court in the case of Lt. Col. B.R.
    Malhotra vs. U. 0.1. & 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             C
        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           D~
        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        E
        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 :
                                                                          F


              "Considering the view and object behind the
      ' provision for allowing the disability pension, when
        admittedly the officer has become disabled and cannot             G
        remain in service, whether he has been voluntary retired
        or compulsorily retired that is immaterial for the purpose
        of pension to the person who become disabled during
        service."
                                                                          H
    784     SUPREME COURT REPORTS                 [2010] 7 S.C R.


A        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
8
  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
C 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
D to or aggravated by military service. He submits that in view of
  Regulation 50 of Pension Regulations, writ petitioner having
  retired voluntarily shall not be eligible for award of pension on
  account of any disability.

E       8. Mrs. Arnita 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
F 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
G 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,
H
        UNION OF INDIA & ORS. v. AJAY WAHi                    785
                [C.K. PRASAD, J.]

therefore, action of the Union of India in denying the writ           A
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         B
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
    compas"sionate ground although his disability has been            C
    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     D
    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          E
    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."
                                                                      F
     10. Rival submission necessitates examination of the
scheme of the Pension Regulation. Section Ill of the Pension
Regulations (hereinafter referred to as the "Regulations")
applies to all commissioned officers of the Army. Regulation
48 of the Regulations which forms part of Section-Ill, provides
for grant of disability pension to an officer who is invalided out    G
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       H
    786       SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A         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
                (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
C 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.
D
                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
E         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
F 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
G 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
H granted. In face of the language of Regulation 50 there is no
        UNION OF INDIA & ORS. v. AJAY WAHi                   787
                (C.K. PRASAD, J.]
escape from the conclusion that an officer retiring voluntarily     A
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.
                                                                    B
      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, C
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 D
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 E
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 F
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 G
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 ~re'
of the opinion that the observation of the High Court that an
officer cannot be denied disability pension on the ground of H
    788      SUPREME COURT REPORTS                  [2010] 7 S.C R

A 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
B 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
C 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 u1sability attributable
  to military service, the same shall be subject to judicial review.
  There may be a case in which an officer had suffered disability
D dttributable 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
E 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
F 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
G 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
H accordance with Appendix II of the Regulations that writ
        UNION OF INDIA & ORS. v. AJAY WAHi                     789
                [C.K. PRASAD, J.]
petitioner's voluntary retirement was accepted on the ground           A
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 Narwa/ (Supra) has no bearing at all.
                                                                       B
     18. We are of the opinion that an officer is entitled for
disability pen.sion 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        C
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             D
judgment of the Division Bench of the High Court is set aside
and that of the learned Single Judge is restored. No costs.

R.P.                                             Appeal allowed.