JUDGMENT

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 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 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 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.