Jammu & Kashmir High Court
U.O.I. Th.Min.Of Defence And Ors. vs Jagdish Singh Katoch on 12 March, 2014
Author: Muzaffar Hussain Attar
Bench: Muzaffar Hussain Attar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
LPASW No. 45/2004
CMA No. 73/2004
Date of order: 12.03.2014
Union of India and ors vs. Jagdish Singh Katoch
Coram:
Hon'ble Mr. Justice M. M. Kumar, Chief Justice
Hon'ble Mr. Justice Muzaffar Hussain Attar, Judge
Appearing counsel:
For the Appellant(s) : Mr. K. K. Pangotra, ASGI.
For the Respondent(s) : Mr. S. K. Puri, Advocate.
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes
M.M.Kumar, CJ
1. This appeal under clause 12 of Letters Patent, at the instance of Union of India and its officers, is directed against judgment and order dated 19.04.2002 rendered by the learned Single Judge of this Court, holding that the writ petitioner- respondent is entitled to grant of disability pension after having been discharged from the Army on his own request.
2. Before embarking upon examining the legal controversy, it would be appropriate to set out few facts. The writ petitioner- respondent joined 4 Corps of Military Police as a Sepoy in the year 1975 and he was allotted No. 7769356. He was released from service at his own request after rendering 7 year, 9 months of service under Army Rule 13 (3) Item III (iv). The order was passed before he could fulfill the conditions of his 2 enrolment. In an order passed by CCDA (P) Allahabad on 17.03.1988 (Annexure-B) it has been clarified that he would not qualify for grant of disability pension under the Rules (Annexure R-2) and the assertion made by the petitioner- respondent to the contrary was wholly untenable. The claim made by the petitioner- respondent is that discharge certificate clearly indicated that his medical category at the time of release was „BEE‟ (Permanent) with a further certification that he was fit for civil employment. The petitioner- respondent made repeated representations but the appellant took a consistent stand that he did not qualify for grant of disability pension although at the time of release at his own request he was under medical category „BEE‟ (Permanent). In that regard a reference has been invited to the order dated 01.09.1983 passed by CCDA (P) Allahabad (Annexure R-2). It is also pertinent to mention that the petitioner- respondent had earlier filed a petition namely SWP no. 310/1985 which was dismissed for non prosecution on 08.10.1996 (Annexure R-1). The appellants also raised objection that the writ petition filed later on by the petitioner- respondent was barred by res judicata. The learned Writ Court, after examining the pleadings of the parties proceeded to record the following findings:-
"It be seen that the petitioner is not claiming regular pension. He is claiming disability pension for being placed in medical category BEE(P). This aspect of the 3 matter was required to be taken note of. This has not happened in this case. Again the respondents have observed that the petitioner is fit for civil service. Therefore, the respondents should have assigned him a job of the civil nature. As a matter of fact, the Supreme Court has in the case of Narendra Kumar Chandia v. State of Haryana and ors, AIR 1995 SC 519, observed that if a person is found to be medically unfit but can perform some other duties, then that aspect of the matter should be gone into. The respondents would accordingly consider the claims of the petitioner for giving him civil employment. The fact that the petitioner was placed in medical category BEE(P) is also required to be taken note of. The respondents would accordingly constitute a Medical Board and assess the percentage of disability suffered by the petitioner and would accordingly release the disability pension in his favour as per the assessment to be made by the Medical Board. The Medical Board would be constituted within a period of one month from the date a copy of this order is made available to the respondents by the petitioner and thereafter the disability pension claim would be settled within a further period of two months. The claim of the petitioner for giving him job of the civil nature would also be considered within a period of three months from the date a copy of this order is made available to the respondents by the petitioner. Let appropriate orders be passed and conveyed to the petitioner within the period stipulated above."
3. Mr. K. K. Pangotra, learned counsel for the appellant has vehemently argued that disability pension would not be available to a Sepoy who has been released from service at his own request. He has placed reliance on to Army Rule 13 (3) Item III (iv). According to the learned counsel there is a lot of difference between „discharge on the basis of disability‟ and „discharge on the basis of request‟ of an army personnel.
4. Mr. S. K. Puri, learned counsel for the petitioner- respondent has argued that there should not be any difference 4 between „discharge on his own request, and „discharge on the basis of low medical category‟ if otherwise disability existed. According to the learned counsel it would not have any qualitative difference.
5. In order to decide the issue it would be profitable to read Pension Regulations for the Army 1961 (For brevity „Regulations‟). Regulation 48 which forms part of Section 3 provide for grant of disability pension to an officer who is invalidated out of service on account of disability attributable to or aggravated by Military service. Appendix II of the Regulations provide for procedure for determining of the disability which is set out below in extenso:-
"48. Disability pension when admissible--- (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 causality 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."
6. Regulation 50 of the Regulations prohibits grant of disability pension to an officer who retires voluntarily and the same is set out below in extenso:-
"50. Officers who retire voluntarily-----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 5 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."
7. A cursory glance on Regulation 48 would show that disability pension is to be granted to an officer who has been invalidated out of service on account of disability attributable to or aggravated by military service, whereas Regulation 50 makes it further clear that an officer who retires voluntarily would not be eligible for any award on account of any disability. The constitutional validity of Regulation 50 was challenged before Hon‟ble the Supreme Court in case of Union of India v. Ajay Wahi, (2010) 11 SCC 213. The principle ground of challenge was that once the basis of discharge is low medical category, it would not make any difference whether the discharge is at the discretion of the officer or army authorities. Rejecting the aforesaid challenge their Lordships of the Supreme Court held as under:-
"21. 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 6 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 Article 14 of the Constitution of India.
22. True it is that the 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] supports the contention of the writ petitioner but from what we have pointed above, its observation that (DLT p.504, para7) "[people who become disabled 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.
23. 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 judgment of the Delhi High Court in Mahavir Singh Narwal (Supra) has no bearing at all.
24. 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 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."
(Emphasis added)
8. A perusal of the aforesaid ennunciation of law leaves no manner of doubt that discharge on the basis of low medical category stand on entirely different footings than release of an army personnel on the basis of his own request. Therefore, we do not feel persuaded to accept the view taken by the learned Writ Court. Moreover, the writ petitioner- respondent had filed 7 SWP no. 310/1985 which was dismissed for non prosecution. It is well settled that in such circumstances the earlier dismissal would act as res judicata and no fresh petition could have been filed on the same cause of action. In that regard reliance may be placed on the provisions of Order 9 Rule 9 of the Code of Civil Procedure which provides that a decree against the plaintiff by default bars filing of a fresh suit. It may be true that in stricto sensu Code of Civil Procedure is not applicable to the proceedings in writ jurisdiction yet the principles discernible from C.P.C would still be applicable. Therefore, a new writ petition on the basis of the same cause of action could not have been filed.
9. As a sequel to the above discussion, this appeal succeeds. The judgment and order dated 19.04.2002 rendered by the learned Writ Court is set aside. The orders passed by the appellants, declining the right of the petitioner- respondent to claim disability pension are upheld and the writ petition is dismissed.
10. In the peculiar facts and circumstances of the case the parties are left to bear their own costs.
(Muzaffar Hussain Attar) (M. M. Kumar)
Judge Chief Justice
Jammu
12. 03.2014
Anil Raina, Secy
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14. Rival submission necessitates examination of the scheme of the Pension Regulation. Section III 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-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. Disability pension when admissible--- (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 causality 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."
15. 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. Officers who retire voluntarily-----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."
16. 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.
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17. 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. 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.
18. 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.
19. Undisputedly, the 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.
20. 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.
21. 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 10 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 Article 14 of the Constitution of India.
22. 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 (DLT p.504, para7) "[people who become disabled 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.
23. 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 Mahavir Singh Narwal (Supra) has no bearing at all.
24. 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 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.
25. 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