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CASE NO.: Appeal (civil)  686 of 2005

PETITIONER: Union of India & Anr

RESPONDENT: Bashirbhai R.Khiliji

DATE OF JUDGMENT: 16/05/2007

BENCH: A.K.MATHUR & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

A.K. MATHUR,  

1.              This appeal is directed against the order passed by the  Division Bench of the High Court of Gujarat at Ahmedabad  whereby  the Division Bench of the High Court  has set aside the order passed  by the Additional Deputy  Inspector General of Police, Central  Reserve Police Force, ( for short, CRPF), Group Centre, Gujarat,  Gandhi Nagar dated 26.4.1996  and held that the respondent is  entitled to invalid pension  which may be calculated in accordance  with rules and paid to him within three months along with interest at  the rate of 9 per cent from 1.9.1991. 2.              Brief facts which are necessary for disposal of this appeal  are that the respondent herein was selected and appointed as Armed  Constable in the Central Reserve Police Force. He was posted  at  Amritsar (Punjab) in the Anti-terrorist squad.  Thereafter, he was  posted at Srinagar (Jammu & Kashmir) for the protection of citizens  against terrorists. While on duty due to heavy snowfall in Srinagar he  suffered from Pyrogenic  meningitis  and neurosensory deafness  (bilateral). Consequently, he was referred to S.M.N.S.Hospital and  was admitted there from 19.1.1990 to 14.2.1990 and thereafter at the  Base Hospital -1,  New Delhi  and All India Institute of Medical  Sciences, New Delhi from 17.3.1990 to 16.4.1990 for investigation  and treatment.  He was diagnosed  as a patient of ’ Pyrogenic  Meningitis with B.I. Sensonery Deafness’.  Despite medical treatment  at various hospital, the respondent could not be cured and he was  declared unfit for active duty. His case was referred for consideration  whether  he could do alternative job. But there also he could not  secure one as he was found invalid.  Finally he was invalidated from  service on 1.7.1991 (F.N.) vide office order dated 27.6.1991 passed  by the Group Commander, CRPF, Gandhinagar. The respondent  requested for invalid pension but that was rejected on the ground that  he had not completed the qualifying service of ten years.  But he has  been given service gratuity of Rs.4,140/- apart from a recurring  payment of Rs.1000/- per month from Risk Fund for life  vide order  dated 12.12.1991.  The respondent filed S.C.A.No. 12432 of 1994   before the High Court of Gujarat  praying for invalid pension.  But by  order dated 28.2.1996 the High Court directed  that the  representation of the respondent  for separate pension be considered  in accordance with rules. It was also observed that the respondent’s  case for separate entitlement to invalid pension was distinct from the  entitlement from the risk fund  and if the entitlement from the risk fund  was the same as invalid pension, reasoned order be passed in that  respect. Pursuant to that  direction, respondent’s representation was  considered and was rejected by order dated 26.4.1996.  The  respondent also made a representation with regard to recovery of  Rs.22231/- . This was rejected on the ground that  the respondent

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had been overpaid  with respect to the period he remained under  treatment and medical examination.  The respondent thus  approached the High Court again by filing the present writ petition  and claimed for invalid pension.  This was opposed  by the appellants  that  the respondent is not entitled to invalid pension as per Central  Civil Services (Pension) Rules, 1972, since he had not  completed  ten years of service.  The Division Bench after considering  Rule 38  which deals with the invalid pension took the view that  since the  respondent’s invalidity was 100 per cent, therefore  he was entitled to  invalid pension and the condition of ten years of qualifying service   could not be invoked so as to deny the respondent the invalid  pension. The Division Bench further held that since the respondent  while on duty has suffered  the permanent disability, therefore,  whatever  excess payment made to him should not be recovered.  Aggrieved against this impugned order the present appeal was filed  by the appellants.                  3.              We have heard learned counsel for the parties and  perused the records. There is no two opinion in the matter the  respondent while serving at height has suffered 100 per cent  invalidity.  He has already been granted Rs.1000/- per month out of  the risk fund which is specially reserved for such disability.  But so far  as   the question of granting  invalid pension is concerned, that   cannot be considered though it may be harsh, as per the scheme of  the Pension Rules.  The respondent being a constable in the Central  Reserve Police Force is governed by the Central  Reserve Police  Force Act, 1949  and Central Reserve Police Force Rules, 1955  (hereinafter to be referred to as ’the Rules of 1955’.). According to  Rule 42 of the Rules of 1955, the respondent is governed by the  Central Civil Services (Pension) Rules, 1972. The Pension Rules of  1972 contemplates various  types of pensions in Chapter V.  Rule 35  deals with superannuation pension. Rule 36 deals with retiring  pension.  Rule 37 deals with pension on absorption in or under a  Corporation, Company or Body.  Rule 38 which deals with invalid  pension reads as under :

               " 38. Invalid pension                         (1)     Invalid pension may be  granted if a Government servant retires from the  service on account of any 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)     a Medical Board in  the case of a Gazetted Government servant  and of a non-Gazetted Government servant  whose pay, as defined in Rule 9 (21) of the  Fundamental Rules, exceeds Two  thousand and two hundred rupees per  mensem;                         (b) Civil Surgeon or a  District Medical Officer or Medical Officer  of equivalent status in other cases.

       NOTE 1.-        No medical certificate of incapacity for  service may be granted unless the applicant  produces a letter to show that the Head of his Office  or Department is aware of the intention of the  applicant to appear before the Medical Authority. The  medical authority shall also be supplied b the Head  of the Office or Department in which the applicant is

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employed with a  statement of what appears from  official records to be the age of the applicant. If a  Service Book is being maintained for the applicant,  the age recorded therein should be reported.         NOTE 2.-        A lady doctor shall be included as a  member of the Medical Board when a woman  candidate is to be examined.         (3)     The form of the Medical Certificate to be  granted by the Medical Authority specified in  sub-rule (2) shall be as in Form 23.         (4)     Where the Medical Authority referred to  in sub-rule (2) has declared a Government  servant for  further service of less laborious  character than that which he had been doing, he  should, provided he is willing to be so employed,  be employed on lower post and if there be  no  means of employing him even on a lower post, he  may be admitted to invalid pension."                                  Rule 39 deals with compensation pension.  Rule 40 deals with  compulsory retirement pension.  Rule 41 deals with compassionate  allowance.  These are various kinds of pensions admissible to  Government servants. Chapter VII deals with regulation of amounts  of pensions. This chapter deals with how the amount to be  determined after putting in qualifying service. Rule 48 deals with  retirement on completion of 30 years’ qualifying service.  Rule 48A   deals with retirement on completion of 20 years’ qualifying service.  Rule 49 which is relevant for our purpose, reads as under :

               "  49. Amount of Pension                 (1)     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  calculated at the rate of half month’s emoluments for  every completed six monthly period of qualifying  service.                 (2)     (a)     In the case of a  Government servant retiring in accordance  with the provisions of these rules after  completing qualifying service of not les than  thirty-three years, the amount of pension shall  be calculated at fifty per cent of average  emoluments, subject to a maximum of four  thousand and five hundred rupees per  mensem.                         (b)     In the case of a  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  Rupees three hundred and seventy-five per  mensem.                         )       notwithstanding  anything contained in Clause (a) and Clause  (b), the amount of invalid pension shall not be  less than the amount of family pension  admissible under sub-rule (2) of Rule 54.                 (3)     In calculating the length of qualifying  service, fraction of a year equal to three months and  above shall be treated as a completed one half- year

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and reckoned as qualifying service.                 (4)     The amount of pension finally  determined under Clause () or Clause (b) of sub-rule,  shall be expressed in whole rupees and where the  pension contains a fraction of a rupee it shall be  rounded off to the next higher rupee.                 (5) & (6)       Deleted."

       We are presently concerned with two provisions of the Rules  i.e. Rule 38 and Rule 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 concerned authorities and in  particular form No.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 2(q) of the Rules which reads as under :

               " (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;"

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.

4.              We feel that this is little harsh that an incumbent while  discharging his onerous duties  became completely deaf. Therefore,  the respondent should have been  adequately compensated for that.  A sum of Rs.1000/- per month has already been granted to him from  the Risk Fund which is specially reserved for such contingency. So  far as the pension is concerned, as he has not put in ten years of  minimum qualifying  service, it would not be admissible to him.   However, a sum of Rs.22,231/-  which has been paid to him during  the medical treatment, shall not be recovered from him.  Hence, in  view of our above discussion,  we allow this appeal and set aside the  order of the Division Bench of the Gujarat High Court. There would be  no order as to costs.

5.              However, before parting  with this case we feel that since  the respondent while discharging his duties  has become invalid to  serve anywhere on account of impairment of both of his ears,   therefore, in fitness of things,  at least something should be given to  him for survival and we direct that a sum of Rupees one lakh  be  given to him  ex gratia. This amount in question be released by the  appellants to the respondent  within a period of two months from the

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date of receipt of a copy of this judgment.