[REPORTABLE]

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9204    OF 2019 (Arising out of SLP(C) No.16283 of 2017

STATE OF ODISHA & ORS. APPELLANT(S)

VERSUS

MANJU NAIK RESPONDENT(S)

J U D G M E N T

Hrishikesh Roy, J.

Leave granted.

2. This appeal arises out of the judgment and order dated

29.11.2016 in W.P. (C)No.  14413 of 2016 whereunder the High

Court of Orissa has dismissed the appellants’ challenge to

the  order  dated  3.8.2015  of  the  Odisha  Administrative

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Tribunal (hereinafter referred to as “the Tribunal”) under

which the authorities were directed to consider sanction of

invalid pension in favour of late Sagar Naik (husband of the

respondent) and thereafter settle family pension in favour

of the applicant, under the provisions of the Orissa Civil

Services (Pension) Rules- 1992 (hereafter referred to as

“the Pension Rules”).   

3. The respondent filed the OA No. 18(B)/2010 before the

Tribunal praying for fixation of pay of late Sagar Naik and

for disbursal of his accrued financial benefits with effect

from 1.1.1996 until he was retired on 6.7.1996 on being

mentally  incapacitated.  The  applicant  also  prayed  for

sanction of family pension from the date of death of her

husband i.e. 24.7.1996.   

4. The applicant projected before  the Tribunal  that her

husband on being found incapacitated was made to retire from

service on 6.7.1996 and he died soon thereafter on 24.7.1996

and therefore, the widow is entitled to family pension.  She

also tried to make out a case for grant of invalid pension

in favour of her late husband.

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5. Opposing the prayers, the Government Advocate on behalf

of  the  State  contended  before  the  Tribunal  that  the

applicant’s husband had not rendered the qualifying period

of service so as to make him eligible for pension.  Opposing

the claim for invalid pension for the deceased husband, the

appellants  contended  that  Rule  39 of  the  Pension  Rules

governing invalid pension has to be read together with Rule

47 which specifies the qualifying service of ten years for

grant of pension and accordingly it was argued that the

applicant is disentitled to any relief from the Tribunal.

6. Notwithstanding  the  State’s  above  contention,  the

Tribunal concluded that the applicant’s husband is entitled

to invalid pension under Rule 39 of the Pension Rules and

accordingly, the authorities were directed to sanction the

invalid pension for the applicant’s husband and after his

death, to settle the family pension for the applicant, after

regularizing the services of the deceased employee.

7. The  above  decision  was  challenged  by  the  appellants

through W.P.(C) No. 14413/2016 where the State projected

that  Rule 39 has to be read jointly with  Rule 47  of  the

Pension Rules  and if Rules are applied as it should be,

conjointly, the deceased government employee is ineligible

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for  invalid  pension.  However,  without  adverting  to  the

specific contention raised by the appellants, the High Court

observed that a reasoned order was passed by  the Tribunal

declaring  entitlement  for  the  invalid  pension  and

accordingly  the  Tribunal’s  impugned  order  was  left

undisturbed and the writ petition came to be dismissed.

8. Representing the State of Odisha and other appellants,

Ms.  Anindita  Pujari,  learned  counsel  submits  that  the

deceased government employee was unauthorizedly absent from

service from 1.2.1995 to 23.7.1995 and was under suspension

from 24.7.1995 to 6.7.1996 and this period cannot be counted

for  determining  the  qualifying  service.   Thus,  in  his

credit, the deceased employee had net qualifying service of

4 years 6 months and 29 days until he was superannuated on

6.7.1996.    The  learned  counsel  then  refers  to  the

provisions  of  Rule  47(2)(b) and  47(5)(i) to  argue  that

without completing the qualifying service of ten years, the

deceased employee is ineligible for pension. Due to such

non-entitlement, the widow was granted the alternate benefit

i.e.,  the  service  gratuity  amount  by  computing  the

entitlement under Rule 47(5)(i)of the Pension Rules.

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9. On account of the short duration of service rendered by

the deceased employee, the State’s counsel then argues that

the respondent’s husband cannot be granted invalid pension

under  Rule 39 as the provision has to be conjointly read

with Rule 47 and Rule 56 of the Pension Rules which specify

the  qualifying  service  of  ten  years  and  also  the

consequences for those who do not satisfy the eligibility

criterion for qualifying service.

10. Per-contra, Mr. Kedar Nath Tripathi, learned counsel

for the respondent/applicant, would however argue that the

government employee was allowed to retire from service on

6.7.1996  on  the  ground  of  mental  incapacity  and  since

invalid pension is envisaged under  Rule 39 of  the Pension

Rules for  such  prematurely  retiring  employees  suffering

permanent incapacity, the Tribunal and the High Court have

rightly  ordered  for  grant  of  invalid  pension  for  the

respondent’s husband.

11. The  learned  counsel  then  submits  that  since  the

government  servant  died  within  few  days  of  retirement,

firstly he must be paid the invalid pension under Rule 39

and after his death on 24.7.1996, the respondent as the

widow, should be held entitled to family pension.  

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12. The issue to be considered here is whether the minimum

qualifying service prescribed under the Pension Rules can be

ignored for the purpose of consideration of invalid pension

under Rule 39 of the Pension Rules. As a corollary, whether

the Tribunal or the High Court erred in directing invalid

pension  for  a  government  employee  who  did  not  have  the

qualifying service, prescribed under the Pension Rules.

13. At this stage, the relevant provisions of the Pension

Rules are extracted hereinbelow for ready reference:-

“. . . . . . . . . . . . . . . . . . . . 39. Invalid  Pension  –  (1)  invalid pension  may  be  granted  if  a  Government servant  retires  from  the  service  on account  of  bodily  or  mental  infirmity which  permanently  incapacitates  him  for the service.  

(2)  A Government servant applying for an invalid pension shall submit a medical certificate  of  incapacity  from  the following medical authority, namely :  -

(a) Medical Board, in the case of all Gazetted  and  specially  declared  Gazetted Government servants, and   

(b) A Chief District Medical Officer or Medical  Officer  of  equivalent  status  in case of other Government servants.  

47.  Amount of pension (1)  

******** ******** ****

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2 (a)  ******** ******** ****   

(b)  In the case of Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty-three years,  but after completing qualifying service of ten years, the  amount  of  pension  shall  be proportionate  to  the  amount  of  pension admissible under clause (a) and in no case the amount of pension shall be less than the minimum amount  of pension admissible.

******** ******** ****

******** ******** ****

(5)(i) In the case of a Government servant retiring in accordance with the provisions of these  rules  before  completing  qualifying service of ten years, the amount of service gratuity shall be paid at a uniform rate on half month’s emoluments for every completed six monthly period of service.

56. Family Pension :

**** **** **** **** **** **** ****

(2)  Without  prejudice  to  the  provisions contained in Sub-rule (4) where a Government servant dies-

**** **** **** **** **** **** *****

(c ) After retirement from service and was on the date of death in receipt  of pension, or compassionate allowance, referred to in Chapter IV other than the pension referred to in rules 43 and 44 the family of the deceased  shall  be  entitled  to  family pension,  the  amount  of  which  shall  be

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determined  in  accordance  with  the  table below.  

. . . . . . . . . . . . . . . . . . . . . .“

14. The respondent’s husband, late Sagar Naik was appointed

on 22.8.1989 under the Rehabilitation Assistance Scheme as

his father late Suri Naik died in harness, while serving in

the M.K.C.G. Medical College and Hospital.  The appointee

was however found to be suffering from mental incapacity and

accordingly, on the basis of the medical certificate issued

by  the  HoD  of  the  Psychiatric  Department  of  the  S.C.B.

Medical  College,  Cuttack,  the  employee  was  retired  from

service on 6.7.1996 on the ground of mental incapacity. The

case paper reveals that the service of the employee was

erratic, as he remained absent from 1.2.1995 to 23.7.1995

and was under suspension from 24.7.1995 to 6.7.1996. Thus

his  net  qualifying  service  for  the  benefits  under  the

Pension Rules  was taken as 4 years 6 months and 29 days

only.

15. For  government  servants  not  completing  ten  years

qualifying  service  prescribed  in  Rule  47(5)(i) of  the

Pension Rules, the service gratuity is to be paid at a

uniform rate of half month’s emolument for every completed

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six months period of service. Such gratuity benefit as also

the  other  terminal  benefits  like  GPF,  unutilized  Earned

Leave,  Death-cum-Retirement  Gratuity  (DCRG),  etc.  were

sanctioned  and  paid  to  the  widow  of  the  employee.

Moreover, respondent was also appointed as a sweeper under

the Rehabilitation Assistance Scheme and she is in regular

government service, since 12.6.2006.

16. The gratuity and other benefits and the compassionate

appointment was accepted by the respondent without raising

any  additional  claim  towards  invalid  pension  for  her

deceased husband, who retired on 6.7.1996.Long after his

death on 24.7.1996, the respondent approached the Tribunal

to  belatedly  pray  for  firstly,  fixation  of  pay  for  her

husband in the revised scale with effect from 1.1.1996 till

his  superannuation  and  also  to  sanction  family  pension

benefits  for  the  applicant,  following  the  death  of  the

government  employee  (on  24.7.1996)  along  with  all

consequential and terminal benefits.  The respondent never

however  prayed  for  invalid  pension  before  the  Tribunal.

Yet,  the  Tribunal ordered  for  invalid  pension  for  the

respondent’s husband, under Rule 39 of the Pension Rules.

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17. When the Tribunal’s decision was challenged in the High

Court, the State specifically contended that Rule 39 has to

be read together with Rule 47 of the Pension Rules and the

specified  qualifying  service  must  be  satisfied  even  for

claiming  invalid  pension.  But  the  High  Court  without

adverting  to  the  specific  contention  raised  by  the

appellants, dismissed the writ petition with a cryptic order

observing that the Tribunal has passed a reasoned order and

that the husband of the respondent is entitled to invalid

pension under Rule 39 of the Pension Rules.

18. The requirement of completing the qualifying service of

ten years for receipt of pension is prescribed under  Rule

47(2)(b) and  for  those  government  employees  who  retire

before completing the qualifying service, alternate relief

is envisaged under the Pension Rules itself. How the service

gratuity  is  to  be  computed,  is  also  prescribed  in Rule

47(5)(1) of the Pension Rules.   

19. The respondent’s husband was retired on the ground of

mental infirmity and hence the service gratuity was paid and

the widow had received the same, without any demur.  She

never raised any claim for invalid pension either at the

time of retirement on 6.7.1996 or even when she approached

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the  Tribunal i.e.  14  years  later  in  the  year  2010.

Nevertheless,  the Tribunal went beyond the prayers in the

O.A. No. 18(B)/2010 and ordered for invalid pension for late

Sagar Naik and then following his death, ordered for family

pension for the widow. In declaring such entitlement the

High Court and the Tribunal however ignored the qualifying

service of ten years as prescribed in  the Pension Rules

although the State specifically argued that the qualifying

service  criterion  has  to  be  satisfied  not  only  for  the

regular pension but also for the invalid pension since both

claims are to be considered under the very same  Pension

Rules.

20. An employee becomes entitled to pension by stint of his

long service for the employer and, therefore, it should be

seen as a reward for toiling hard and long for the employer.

The  Pension Rules  provide for a qualifying service of 10

years for such entitlement. When the question arises as to

how  certain  provisions  of  the  Pension  Rules  are  to  be

understood, it would be appropriate to read the provision in

its context which would mean reading the statute as a whole.

In other words, a particular provision of the statute should

be construed with reference to other provisions of the same

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statute so as to construe the enactment as a whole. It would

also  be  necessary  to  avoid  an  interpretation  which  will

involve conflict with two provisions of the same statute and

effort should be made for harmonious construction. In other

words, the provision of a Rule cannot be used to defeat

another  Rule  unless  it  is  impossible  to  effect

reconciliation between them. Pension as already stated is

earned by stint of continuity and longevity of service and

minimum qualifying service should therefore be understood as

the requirement for invalid pension as well.  The  Pension

Rules can be harmoniously construed in this manner and in

that  event,  there  shall  be  no  clash  between  different

provisions in the said Rules.

21. The condition of qualifying service prescribed in the

Pension  Rules must  be  satisfied  to  become  eligible  for

invalid pension and the arguments made to the contrary that

invalid  pension  can  be  claimed  under  Rule  39 without

satisfying the stipulated qualifying service mentioned in

the  same  Rules,  do  not  appeal  to  us.  The  respondent’s

husband who had served for lesser years then the 10 years

qualifying service, was found entitled by his employers to

service gratuity only, because of his premature retirement

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on the ground of mental incapacitation and this is what is

prescribed by the  Pension Rules. The dues toward service

gratuity was paid accordingly. The Pension Rules definitely

envisaged that there could be a situation where an employee

may not be eligible for pension benefits for not satisfying

the prescribed qualifying service of 10 years. For those

with less than 10 years’ service, the Pension Rules provide

for gratuity payment and therefore, it is difficult for us

to conclude that for invalid pension, qualifying years of

service, can be ignored.

22. The above view of ours is supported by the ratio in

Union of India and Another Vs. Bashirbhai R. Khiliji1, where

this Court was considering claim for invalid pension for an

armed  constable  in  the  CRPF  who  suffered  from  pyrogenic

meningitis and neurosensory deafness (bilateral). In that

case, the CRPF personnel was declared unfit for active duty,

and  he  was  invalidated  from  service.  He  applied  to

authorities for invalid pension but that was rejected on the

ground that he had not completed the qualifying service of

10 years. Instead, he was paid service gratuity. The High

Court in that case however, took the view that since the

CRPF  Constable’s  invalidity  was  100  per  cent,  he  was

1(2007) 6 SCC 16

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entitled to invalid pension and the stipulation of 10 years

of qualifying service could not be invoked to deny him the

invalid pension. However, Justice A.K. Mathur, speaking for

a two judge Bench of this Court while interpreting similar

provisions in the applicable Rules, negated the High Court’s

view and pronounced on the issue of qualifying service for

invalid pension, in the following manner:-

 “. . . . . . . . . . . . . . . . . . . .  . .  

9.  We  are  presently  concerned  with  two provisions of the Rules i.e., Rule 38 and 49.  Rule  38,  as  reproduced  above, contemplates  the  invalid  pension.  The procedure has been mentioned therein i.e. in case an incumbent retires from service on account of bodily or mental infirmity which permanently  incapacitated  him  for  the service,  then  a  medical  certificate  of incapacity shall be given by the authorities concerned and in particular Form 23 the same may  be  applied  before  the  competent authority. It is true that the qualifying service is not mentioned in Rule 38 but Rule 49 which deals with the amount of pension stipulates  that  a  government  servant retiring in accordance with the provisions of these Rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month’s emoluments for every completed six-monthly  period  of  qualifying  service. Therefore, the minimum qualifying service of ten years is mentioned in Rule 49. The word “qualifying  service”  has  been  defined  in Rule  3(1)(q)  of  the  Rules  which  read  as under:

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“3.  (1)(q)  ‘qualifying  service’  means service rendered while on duty or otherwise which shall be taken into account for the purpose  of  pensions  and  gratuities admissible under these Rules;”

10.  Therefore,  the  minimum  qualifying service which is required for the pension as mentioned  in  Rule  49,  is  ten  years. The qualifying  service  has  been  explained  in various memos issued by the Government of India from time to time. But Rule 49 read with Rule 38 makes it clear that qualifying service  of  pension  is  ten  years  and therefore,  gratuity  is  determined  after completion  of  qualifying  service  of  ten years.  Therefore, for grant of any kind of pension one has to put in the minimum of ten years of qualifying service. The respondent in  the  present  case,  does  not  have  the minimum  qualifying  service.  Therefore,  the authorities  declined  to  grant  him  the invalid pension. But the amount of gratuity has been determined and the same was paid to him.

. . . . . . . .. . . . . . . . . . . . . .”

(Underlining added)

23. The  above  enunciation  of  the  law  on  requirement  of

qualifying service for invalid pension by the bench of two

judges is reiterated and approved by us.

24. In a case like this, the need for compassion and the

compliance of the norms has to be balanced.  As earlier

noted,  the  allowable  gratuity  benefits  were  granted  on

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account of the respondent’s husband and after he died, the

widow was appointed (on 12.6.2006) in a government job under

the  Rehabilitation  Assistance  Scheme.   Thus,  the  needed

means of sustenance was provided to the deceased’s family.

25. The respondent’s husband had not served for ten years

and was therefore, he disentitled for regular pension. For

the same reason, he cannot also be held entitled to invalid

pension.  The  different  provisions  of  the  Pension  Rules

cannot  be  read  in  isolation  and   must  be  construed

harmoniously  and  the  requirement  of  qualifying  service

cannot  be  said  to  be  irrelevant  for  claiming  different

service benefits under the same Rules. Here the employee did

not  satisfy  the  requirement  of  qualifying  service  and

therefore the invalid pension could not have been ordered

for him, under Rule 39 of the Pension Rules.

26. In the above context, it will bear emphasis that the

respondent never prayed for invalid pension for her husband

in her O.A. and yet the Tribunal as well as the High Court

granted  her  the  unclaimed  relief.  Such  additional

munificence, in addition to the job provided to the first

respondent under the Rehabilitation Assistance Scheme for

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the sustenance of the deceased’s family, in our view, was

unwarranted and the impugned order cannot be sustained.

27. In  view  of  the  foregoing,  the  impugned  orders  of

Tribunal  and the High Court are set aside and the Appeal

stands allowed.  The parties to bear their own cost.

………………………………………………J.    [R.BANUMATHI]

………………………………………………J.    [A.S.BOPANNA]

………………………………………………J.    [HRISHIKESH ROY]

NEW DELHI DECEMBER 04, 2019.

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