Delhi High Court
Mahender Pal Singh vs Union Of India on 23 March, 1998
Equivalent citations: 1998IVAD(DELHI)272, 74(1998)DLT138
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
ORDER K. Ramamoorthy, J.
1. On the 6th of November, 1984, the petitioner was examined by the Medical Board and the following report was given about his physical condition:-
"1. Certified that I/We have carefully examined No.761010117 NK RO Mahinder Pal Singh, S/o Late Shri Babu Ram in the Base Hospital No.1, CRPF, New Delhi. His age by his own statement is 35 years and by appearance about 35 years. I(We) consider No.761010117 NK RO Mahinder Pal Singh S/o late Shri Babu Ram to be completely and permanently incapacitated for further service of any kind in the Department to which he belongs in consequent of Head Injury (Effect of) (here state disease or cause). His incapacity does not appear to me/us to have been caused by irregular or intemperate habits."
2. That he had served on the date when he sustained injury for eight years and seven months is common ground. The petitioner claimed pension on the basis of the medical report because he was not in a position to serve in view of his ill-health, and that was not given to him. Therefore, he has approached this Court claiming the relief under Rule 38(3) of the S(Pension) Rules, 1972 as invalid pension.
3. The answer by the respondent is that one must have served for ten years before one became eligible to claim pension and inasmuch as the petitioner admittedly had not served for ten years, he would not be entitled to pension.
4. Therefore, the question is: Whether as per the terms of the Rule 38 of the S (Pension) Rules, 1972 the petitioner would not be entitled to invalid pension? Rule 38 of the S (Pension) Rules, 1972 reads as under:-
"(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 2[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 by the Head of the Office or Department in which the applicant is 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 fit 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.
(5) Deleted."
5. According to the respondents, under Rule 38, the amount of pension could be fixed on an officer completing qualifying service of ten years and, therefore, by applying Rule 49, the amount of pension for the petitioner cannot be fixed as he had not completed qualifying service of ten years. Rule 49, which speaks of amount of pension, reads as under:-
"1[(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 less 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 1[rupees three hundred and seventy-five] per mensem;
(c) 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.
2(3) In calculating the length of qualifying service, fraction of a year equal to 3[three months] and above shall be treated as a completed one half-year and reckoned as qualifying service.
2(4) The amount of pension finally determined under clause (a) or clause (b) of sub-rule (2), 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.
4(5). Deleted.
(6) Deleted.
6. Before dealing with the question of construction of these provisions, reference has to be made to letter dated the 30th of January, 1991 issued by the Department of Pension & Pensioners' Welfare to the Deputy Director(Admn.), CRPF. The same reads as under:-
"I am directed to forward herewith a photocopy of the representation dated 14.7.1990 submitted by Shri Mahindra Pal Singh to the D.G., CRPF on the above subject and to say that it is noticed from the office of the Commandant, SGC, CRPF, Ranchi-4 letter No.P.III-3/85-SGC dated the 28th August, 1990(copy enlcosed) that an incorrect information was conveyed to Mahender Pal Singh regarding his entitlement to invalid pension. There is no provision in the S(Pension) Rules, 1972 for an employee to complete a minimum number of years of service for becoming entitled to invalid pension. As is clear from Rule 38 of the S(Pension) Rules, 1972, invalid pension is granted if a Government servant retires from service on account of any bodily or mental infirmity which permanently incapacitated him for the service and this rule doe snot provide that for granting such a pension the Government servant should complete a minimum number of years of service. That being the position it is surprising that the Commandant SGC, CRPF, Ranchi should issue a communication to Shri Mahender Pal Singh which contains information contrary to the provision in the rules. It is requested that immediate steps may kindly be taken for granting invalid pension to Shri Mahender Pal Singh under ntimation to this Department. The explanation of the Commandant, SGC, CRPF, Ranchi-4 in issuing the letter dated 28th August, 1990 to Shri Mahender Pal Singh giving wrongful information should also be obtained and made available to us.
2. As this is a case monitored by the additional Secretary of this Department, the entire action on your part should be completed by 28th February, 1991."
7. This was sought to be explained by the same department. On 28th of August, 1995 after filing of the writ petition, The Under Secretary, Government of India, had issued the Office Memorandum in the following terms:-
"The undersigned is directed to forward herewith a copy of the Notice dated 8.8.1995 received from the High Court of Delhi on the subject noted above and to request that since the petitioner is an employee of the Central Reserve Police Force, the case may be defended by DG, CRPF on behalf of the Department of Pension and Pensioners' Welfare in accordance with the instructions contained in Department of Personnel and Training Office Memorandum No.20036/23/88-Estt.(1) dated the 6th January, 1989. As separate copies of the Notice as well as petition have been endorsed to DG, CRPF and Commandant, SGC, CRPF, Ranchi, Bihar a copy of the petition is not being sent herewith.
2. It is also brought to the notice of the DG, CRPF that the position explained in this Department's letter No.38/13/91-P&PW(A) dated the 30th January, 1991 enclosed as Annexure P-S(Colly) is not correct. In accordance with the provisions contained in Rule 38 read with the Rule 49(1) of S(Pension) Rules, 1972 invalid pension is admissible only when a person has completed a minimum qualifying service of 10 years. This fact may be taken into account while defending the case in the Court. However, this Department may also be apprised of the progress made in the case from time to time."
8. This can be disposed of without any difficulty because the letter had been written giving suggestion to defend the writ petition when the Department had taken a decision in January, 1991 without considering the basis on which it had been taken. The Under Secretary had written this letter on the premise that, according to him, the position under the rules is that as the petitioner has not completed qualifying service of ten years, he cannot be granted pension. An officer of a particular department is not expected to give any opinion when the matter is pending before a court of law and it is somewhat disturbing that a letter should be projected as an answer to the writ petition. This will suffice to dispose of this letter, nor can the Court proceed on the basis of what had been said by the department on the 30th of January, 1991.
9. The learned counsel for respondents submitted that on the language of Rule 38, it is only contradictory in nature and it is for the department to grant the pension or not, because what is stated is "invalid pension may be granted". According to the learned counsel for respondents, Rule 49 makes it very clear about the entitlement of pension of the officers.
10. The object of providing for invalid pension need not be elaborated. If an officer while rendering services, meets with an accident and injured and becomes incapacitate to function. The service is cut off not by his own but due to circumstances beyond his control. Therefore, the claim for invalid pension may be given at any time during the period when an officer served in the department. That is the reason why no particular period is mentioned because it is obvious that no period could be stipulated. For persons who serve without any injury or any eventuality not being under control, they will be entitled to pension. On a general reading of Rules 38 and 49 shows that the proper intention is that to grant pension to a person, who had suffered injury, in accordance with the quantum fixed in Rule 49. Otherwise, if the argument of the respondents is accepted, the Rule 38 can never work and it becomes completely null and void. It is well settled that no provision of law could be considered in such a way. When these facts are not in dispute, the claim of pension under Rule 38 of the S(Pension) Rules, 1972 cannot be disputed by the respondents.
11. The learned counsel for the respondents referred to the stand taken in the counter-affidavit in sub-para 10 at page 39 and in sub-para at page 40. The same reads as under:-
Sub Para 10 "The Rule 38 of S (Pension) Rules, 1972 is to be read with Rule 49 of S (Pension) Rules. As per Rule 49(1) in case of Government servant retiring 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.
Sub Para 13 The contention of the petitioner in his para is misleading and based on assumptions and presumptions. In view of the provisions contained in Rule 27 and Rule 28 of S (Pension) Rules, 1972, the past service of 4 years 8 months of the petitioner cannot be counted as qualifying service for the purpose of pension."
12. These things do not need any assistance in considering the provisions under consideration. Accordingly, the writ petition is allowed.
13. The respondents shall fix the pension payable to the petitioner on the basis of his having served for eight years and seven months and calculate the amount as per Rule 49 of the S(Pension) Rules, 1972. The said amount shall be put into the petitioner's bank A/c No.20406, State Bank of India, Etawa, (UP).
14. There shall be no orders as to costs.