REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTON

CIVIL APPEAL NO. 1002 OF 2006

UNION OF INDIA & OTHERS …APPELLANTS

VERSUS

AJAY WAHI        …RESPONDENT

J U D G M E N T

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

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 9th 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  

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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  

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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  

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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  

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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  

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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  

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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”)  

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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.”

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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.   

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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  

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  

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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.

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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  

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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  

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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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