Bombay High Court
Shri. Shamrao Ankush Kushekar vs Union Of India And Ors. on 3 November, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-AS:47631-DB 32.WP374_2016.DOC
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 374 OF 2016
Shamrao Ankush Kushekar ... Petitioner
Versus
Union of India & Ors. ... Respondents
_______
Mr. Subhash S. Desai for the petitioner.
_______
CORAM: G. S. KULKARNI &
AARTI SATHE, JJ.
DATE: 3 November 2025
P.C.
1. This petition under Article 226 of the Constitution of India inter alia seeks
a relief that the petitioner be granted disability pension, in the peculiar facts and
circumstances of the case, of the petitioner having suffered disability, during the
training period. Such disability prevented the petitioner from being confirmed on
the post he was selected, and in fact, was required to be discharged/terminated from
the service by an order dated 17 January 2005. The case of the petitioner is based
primarily on benefits being granted to the other similarly placed employees who
had suffered a disability during the training period and who were granted disability
pension.
2. The substantive reliefs as prayed for in the writ petition are required to be
noted which read thus:
"A. That this Hon'ble High Court be pleased to pass an appropriate writ,
order or direction under Article 226 & 227 of the Constitution of India after
calling for the records and proceedings pertaining to the impugned order
regarding removal from service passed by the learned Commandant, 146 BN
CRPF, Gandhinagar, Gujrat dated 17.01.2005 at Exhibit 'A' hereto and order of
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conformation of said order of termination passed by respondent no. 2 dated
10.05.2005 at Exhibit 'B' and after going through the legality thereof be further
pleased to quash and set aside the same and to allow this petition and grant
disability pension to the petitioner with effect from date of removal."
3. The respondents are duly served, also reply affidavit on behalf of the
respondent of Shri. Rakesh Kumar, Commandant, is filed. However, the
respondents are not represented. The petition is pending for about nine years. It
cannot be adjourned further. Accordingly, we have proceeded to hear the learned
counsel for the petitioner, as a short issue touching the livelihood of the petitioner
is involved.
4. The relevant facts are required to be noted: On 5 February, 2003 the
petitioner was appointed as Constable/GD with the Central Reserve Police Force
(CRPF). After such appointment, the petitioner was required to undergo a
compulsory training for a period of two years. To his misfortune, during the
training period, the petitioner suffered a disability, which was revealed when on 16
May, 2003, when the petitioner complained of pain in his right hip. The
petitioner was referred on a sick report dated 17 May 2003 to the station hospital at
Gandhinagar. Thereafter, on 23 May 2003, the petitioner was referred to the Civil
Hospital, Ahmedabad for treatment. He was operated on 5 June 2003 on his right
hip bone. Consequent to such medical treatment and the medical condition which
the petitioner suffered during the training period, the petitioner was declared unfit
for active duty by the Commandant Medical Officer, Gandhinagar. In pursuance
thereto, an order dated 17 January 2005 the petitioner was discharged/terminated
from service. Being aggrieved by such termination, the petitioner approached this
Court in the proceedings of Writ Petition No. 2045 of 2007. A Division Bench of
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this Court by an order dated 29 October, 2007 did not entertain the said petition
on the ground that the petitioner was appointed on a temporary basis and within 5
months of his service, he was found to be unfit for the post and hence there was
nothing wrong in termination of the petitioner's service as he was found unfit.
5. Thus, the petitioner did not succeed in his attempt to secure continuation/
reinstatement in service, even on another post than the one he was selected. In
such circumstances, the petitioner issued a notice dated 4 October, 2011 to the
respondents requesting for grant of a disability pension on the ground that in cases
similar to the petitioner, the appointees who suffered a disability during the
"training period", were granted disability pension. The petitioner requested that he
be treated at par with such appointees. This more particularly in view of the
relaxation granted by the Ministry of Personnel, PG &Pensions, Department of
Pension & Pensioner's Welfare OM No. 33/5/2009-P&PW(F) dated 10 December
2010 with effect from 1 January 2006, wherein the requirement of 10 years service
for grant of pension in such cases of appointee's suffering disability was relaxed,
inter alia providing that such appointees would be entitled for disability pension.
However, the request as made by the petitioner was rejected by the respondents
vide impugned communication dated 8 May 2013 inter alia for the reason that
there was no court order. The impugned communication is required to be noted,
which reads thus:
" Please refer to legal notice dated 4/10/2011 served by you on behalf of
your client No. 031464507 Ex RT Kushekar Sham Rao Ankush of 6 NDRF Ba.
2. On going through the case, it has come to the light that your client Ex RT
Kushekar Shamrao Ankush was enlisted in CRPF on 27/2/03 and sent for basic
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training to 146 Bn, CRPF. While undergoing basic training on 16/5/03, he took
part in 08 Kms race as per training programme. During the race he felt pain in his
right hip and was sent to GC, Hospital Gandhi Nagar for treatment where he
remained admitted. While discharging him, CMO I/C of GC, CRPF,
Gandhinagar declared his unfit for active duties/service in CRPF. Thereafter, he
remained under treatment in various hospitals since May, 2003. Due to his
prolonged treatment coupled with medical unfitness for active duties in CRPF, his
case was submitted to Sector Rehabilitation Board, W/S with the recommendation
to invalidate him out from service with admissible pensionary benefits which was
held at GC, CRPF, Pune on 10/09/04. DRB recommended him for rehabilitation
at the post of Follower in CRPF. But followers also need physical fitness being a
combatised post. Therefore, his service were terminated under the Provision of
Rule 5 of CCS (TS) Rules 1965 by giving one months pay and allowance in lies of
one months notice period, as he was found unfit for basic training. Your client
also filed a Writ Petition in the Hon'ble High Court of Bombay to cancel the
termination order and to grant disability pension/ re-instate him in the Force. The
WP was rejected by the Hon'ble Court vide judgment dated 29/10/2007 heing
devoid of merit.
3. As per OM No. 45/22/97-P&PW dated 3/2/2000 regulated by the CCS
(Pension) Rules, 1972 and CCS (EOP) Rules, service gratuity is admissible to
Government servants with less than 10 year qualifying service and pension is
admissible for qualifying service of 10 years or more.
However, the requirement of 10 years service has been relaxed vide
Ministry of Personnel, PG & Pensions, Department of Pension & Pensioner's
Welfare OM NO. 33/5/2009-P & PW(F) dated 10/12/2010 effected w.e.f
01/01/2006. Since service of your client were terminated before 01/01/2006 i.e.
on 17/01/2005, he is not entitled for disability Pension. Though, the case of your
client is similar in nature to No. 961291654 Ex-RT Ranbir Singh of GC
Gandhinagar and No. 830200308 EX- RT Jagdish Chand of 20BN. But above
personnel were granted disability Pension on the basis of Court judgment. Since,
no court judgment is involved, disability pension could not be sanctioned to your
client."
(emphasis supplied)
6. The impugned communication therefore admits to the petitioner's
contention that the petitioner's case is similar to the case of Ex-RT Ranbir Singh of
GC Gandhinagar and Ex-RT Jagdish Chand, who was the petitioner before the
Delhi High Court and merely because the said appointees had approached the
Court, they were granted pension is the reason as set out. In the petitioner's case,
as he did not approach the Court and ' no judgment was involved', hence disability
pension is not being granted to the petitioner.
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7. Mr. Desai, learned counsel for the petitioner would submit that paragraph 3
of the impugned communication clearly sets out that in cases similar to the
petitioner, i.e., the case of Ex-RT Ranbir Singh, who was also from GC
Gandhinagar and Ex-RT Jagdish Chand were granted disability pension who are
similarly situated as that of the petitioner. It is submitted that merely because the
petitioner did not approach the Court with such case for grant of disability pension
and for the reason that there was no order passed by the Court in the petitioner's
case, pension cannot be denied to the petitioner. Learned counsel for the
petitioner has also placed reliance on the decision of the Division Bench of the
Delhi High Court in Writ Petition (C) No. 3234 of 1994 in the case of Jagdish
Chand vs Union of India wherein in circumstances similar to the petitioner's case,
the Writ Petition filed by Jagdish Chand was disposed of directing the respondents
to consider parity to be granted to the said petitioner. The order passed by the
Delhi High Court in Jagdish Chand's case reads thus:
" The petitioner joined the CRPF on 23.07.1983 as trainee and was
terminated from service on 20.12.1984 under Rule 5(1) of the CCS (T&S) Rules
1965. The reason for termination of the petitioner was that he was dia gnosed
with Henuparesis Rt. Side Celsebeovascular accident and was thus found unfit to
continue in service.
Learned counsel for the petitioner confines his claim to prayer (ii) on the
basis of a policy decision of the respondent dent which forms the basis of the
Judgment in Ex. Nk Bhag Chand Vs. Director General CRPF 1992(2) SLR 387.
Learned counsel for the respondent on the other hand submits that the
persons like that of the petitioner who are found unfit during the training
period, the procedure is followed as pèr the case of the petitioner and that the
policy decision applied only in cases of invalidation from service.
On hearing counsel for the parties and taking into consideration the
peculiar facts and circumstances of the case, we consider it appropriate to direct
the respondent to examine the case of the petitioner within the aforesaid policy
or otherwise considering that incapacity of the petitioner has occurred during
the course of training but almost after one and a half year of such Training and
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there is every possibility of the same would be by rigorous of the training.
Necessary action be taken within three months and in case anything is found
payable the same be remitted to the petitioner within two months restricted to
period of three years prior to the filing of the writ petition.
Petition stands disposed of."
(emphasis supplied)
8. Our attention is also drawn to an order dated 26 October, 2009 wherein the
said petitioner before the Delhi High Court (Ex-RT/GD Jagdish Chand) (supra)
consequently was granted disability pension. It is, therefore, the petitioner's
contention that considering the relaxation as granted by the Government of India
vide OM No. 33/5/2009-P & PW(F) dated 10 December 2010, the petitioner
would become entitled to disability pension.
9. Our attention is also drawn to the reply affidavit filed on behalf of the
respondents of Mr. Rakesh Kumar, Commandant, CRPF, CBD, Navi Mumbai,
wherein the case of the respondents as set out in the impugned order has been
reiterated and more particularly confirming that a relaxation is although available
under Office Memorandum in question, however, as the petitioner's services were
terminated before 1 November, 2006, the petitioner is not eligible for the disability
pension. The relevant extract of the said affidavit is required to be noted:
"5.2 As regards grant of pensioner benefits, I submit that a suitable reply was
also sent to the petitioner by DIG (Welfare) Directorate General, CRPF, New
Delhi, vide his letter No. J.II.22/2012-Welfare-DA-4 dated 08/05/2013 in which
clearly mentioned that as per OM No. 45/22/97-P&PW dated 3/2/2000
regulated by the CCS (Pension) Rules, 1972 and CCS (EOP) Rules, service
gratuity is admissible to Government servants with less than 10 year qualifying
service and pension is admissible for qualifying service of 10 years or more but
the petitioner has not completed 10 years of service. However, the requirement
of 10 years service has been relaxed vide Ministry of Personnel, PG & Pension,
Department of Pension & Pensioner's Welfare OM No. 33/5/2009-P&PW(F)
dated 10/12/2010 effected w.e.f. 01/01/2006. Since service of the petitioner were
terminated before 01/01/2006 i.e. 17/01/2005, he is not entitled for disability
Pension.
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6. With reference to Para 14, I say that I have no Comments to offer as it up
to the petitioner to prove the averment made in this para.
7. With reference to Para 15, I say that the averments made by the
petitioner in this para are incorrect. I say that action taken by the Commandant,
146 Bn, CRPF, in terminating the services of petitioner is just and in accordance
with the Rules on the subject. The Hon'ble High Court of Bombay vide
judgment dated 29/10/2007 passed in WP No. 2045 of 2007 filed by petitioner,
has also held there is nothing wrong in termination of the petitioner services as
he was found unfit.
8. With reference to Para 16, 1 say that the petitioner is a temporary Govt.
Servant and his services were terminated without assigning any reasons under
Rule-5 of CCS (TS) Rules, 1965 by the Commandant, 146 Bn, CRPF, in the
manner provided for therein by giving him one month pay and allowance in lieu
of one month notice as per the rules without attaching any stigma. The action
taken by the appointing authority for termination of the services of the
petitioner was in order as per rules on the subject. Accordingly, the appellate
authority rejects his appeal being devoid of merit. The action taken by the
appointing authority and the appellate authority is in conformity with the rules
as such WP No. 2045/2007 filed by petitioner was rejected by Hon'ble High
Court of Bombay vide judgement dated 29/10/2007 being devoid of merit. The
legal notice dated 4/10/2011 of petitioner was also replied by DIG (Welfare),
Directorate General, CRPF, New Delhi, vide letter No. J.II.22/2012-Wel-DA-4
dated 08/05/2013 after due examination of the case and after taking all aspects
into consideration in which clearly mentioned that as per OM No. 45/22/97-
P&PW dated 3/2/2000 regulated by the CCS (Pension) Rules, 1972 and CCS
(EOP) Rules, service gratuity is admissible to Government servants with less
than 10 year qualifying service and pension is admissible for qualifying service of
10 years or more but the petitioner has not completed 10 years of service.
However, the requirement of 10 years service has been relaxed vide Ministry of
Personnel, PG & Pension, Department of Pension & Pensioner's Welfare OM
No. 33/5/2009-P&PW(F) dated 10/12/2010 effected w.e.f. 01/01/2006. Since
service of the petitioner was terminated before 01/01/2006 i.e. 17/01/2005, he
is not entitled for disability Pension.
(emphasis supplied)
10. We find substance in the contentions as urged on behalf of the petitioner
that in cases similar to the petitioner as noted above, i.e., in the case of Ex. Nk
Bhag Chand vs. Director General CRPF as also in the case of Ex-RT/GD Jagdish
Chand (supra), who was the petitioner before the Delhi High Court in Writ
Petition (C) No. 3234 of 1994 (supra), who were similarly placed as the petitioner,
were granted disability pension. There were cases where disability had occurred
during the training period and consequent to which the said persons could not be
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confirmed and were required to suffer the termination.
11. In our opinion, even on the cut off date, i.e., 1 January 2006 being applied
by the respondent to deny disability pension to the petitioner is not the correct
approach. There cannot be a discrimination in grant of disability pension on such
ground. The principles of law on such cut off date so as to discriminate between
similarly situated persons would be arbitrary and discriminatory (see: D.S. Nakara
and Ors. vs. Union of India1).
12. In this view of the matter, when the respondents are not disputing that the
disability is suffered by the petitioner during the training period and considering
the rigours and nature of such training, rule of parity is required to be followed,
which is one of the salutary concomitant of Article 14 of the Constitution of India,
which stands recognized in the policy of the Central Government as contained in
the Office Memorandum dated 10 December, 2010. The petitioner hence needs to
be held entitled to the disability pension. It also cannot be that merely as the
petitioner did not approach the Court demanding disability pension, the petitioner
could be deprived of such pension.
13. In any event, it is well settled principles of law that pension is not a bounty
and hence the authorities are required to adopt a correct attitude and approach that
no unwarranted litigation is generated on pension issues (see: State of Rajasthan vs.
Mahendra Nath Sharma2 and the decision of Division Bench of this Court in
Ramesh Gajanan Nigudkar vs. Bank of Baroda & Anr. 3. The principles as laid
1 (1983) 1 SCC 305
2 (2015) 9 SCC 540
3 2016(6) Mh. L.J. 718
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down in the said decisions need to apply more empathically in matters where the
employees suffer disability during the course of employment, including during the
training period, when on account of a disability suffered by them, they are deprived
of benefits of continuation in employment or otherwise become fit to pursue other
regular employment. It is for such reason, the Government of India in its wisdom
and on issues which touch the very livelihood of such disabled employees, which is
a facet of Article 21 of the Constitution of India, more particularly qua the
appointees of such special services like the CRPF, a disability pension has been
provided carving out an exception from the normal rules of grant of pension.
Even as admitted in the impugned communication, the petitioner would be
entitled to parity with similar case to that of Ex-RT Ranbir Singh and Ex-RT
Jagdish Chand.
14. In the light of the above discussion, we are inclined to allow this petition in
terms of the following order:
ORDER
(i) The respondents are directed to grant disability pension to the petitioner;
(ii) The entitlement of the petitioner to the disability pension shall be from the date of termination, i.e., with effect from 17 January, 2005.
(iii) The arrears of pension be granted to the petitioner within a period of six weeks from today along with accrued interest.
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(iv) The disability pension for the future period shall be credited to the petitioner's bank account by following the regular procedure in disbursement of pension.
15. The petition is allowed in the aforesaid terms. No costs.
(AARTI SATHE, J.) (G. S. KULKARNI, J.) Signed by: Vidya S. Amin Designation: PS To Honourable Judge Page 10 of 10 Date: 10/11/2025 18:35:24