IMPORTANT POINT
Resignation before qualifying service precludes entitlement to disability pension, regardless of subsequent policy changes.

JUDGMENT :

P.V.BALAKRISHNAN, J.

This writ petition is filed by the applicant in O.A.No.63 of 2021 on the files of the Armed Forces Tribunal, Regional Bench, Kochi, challenging the order dated 09.03.2023, dismissing his application.

2. The applicant was commissioned as a Medical Officer in the Indian Army on 19.01.1994. According to him, due to various ailments, which were attributable to his service conditions, he could not continue his service and hence, he opted for voluntary retirement from service. The Government approved his request and allowed to resign his commission and consequently, he was released from service on 16.08.2003. At that time, he was in medical category S1H1A1P3E1 for Disseminated Tuberculosis. No Release Medical Board was conducted by the Army Authorities, since as per Regulation 50 of the Pension Regulations for the Army, 1961 , an officer, who voluntarily retires, was not entitled to disability pension. After implementation of the 6^th Central Pay Commission, the Government changed the policy and now an officer, who retires voluntarily, is also entitled for disability pension. Accordingly, the applicant made a request for conducting a Medical Board, which was acceded to. But the claim for disability pension was rejected by stating that a person who has tendered resignation is not entitled for the same. The Release Medical Board, proceedings obtained by the applicant would show that the disabilities suffered by him is attributable to the service conditions and the percentage is assessed @20% for life. Hence, the applicant approached the Tribunal by filing O.A.No.63/2021.

3. The Tribunal, after considering the materials on record and hearing both sides, dismissed the O.A. It is aggrieved by the said order, this writ petition is filed by the applicant.

4. Heard Adv.Ratheesh.B, learned counsel for the petitioner and Adv.A.R.Gangadas, learned Senior Panel Counsel for the respondents.

5. The learned counsel for the petitioner submitted that the petitioner, who has voluntarily resigned from service before completing the period of qualifying service, is entitled to disability pension as per Annexure A-3 policy letter dated 19.05.2017 since, no distinction can be made between persons who have voluntarily retired and voluntarily resigned. According to the learned counsel, there is no bar in law preventing sanctioning of disability pension to persons who have resigned. He by relying on the decision in Union of India v. Lt.Col. P.S.Bhargava [(1997 (1) SCR 130] further contended that even if a person has resigned from Army, there is no automatic forfeiture of pension or gratuity and such person will be entitled to pensionary benefits.

6. Per contra, the learned counsel for the respondents contended that there is vast difference between voluntary retirement and resignation, and a person who has resigned from service before completion of the qualifying service, is not entitled to service pension or any other terminal benefits. He submitted that Annexure A-3 policy relied on by the petitioner is not applicable to him since, it prescribes granting of disability element of pension in addition to service pension to the Armed Forces Personnel who have retired. He further, by relying on Annexure R-7, contended that the Ministry of Defence has clarified that since no pensionary element is admissible on resignation, the provision of Annexure R-13 is not extended to persons who have resigned and this in turn shows that the case of the petitioner is not covered under Annexure A-3.

7. In the present case, the petitioner has resigned his commission, as evidenced by Annexures R-1 and R-2. It is not in dispute that the petitioner has rendered service for the period from 19.1.1994 to 16.8.2003 i.e., for 9 years 6 months and 27 days. Annexu