Central Administrative Tribunal - Delhi
Deb Singh vs M/O Personnel,Public Grievances And ... on 29 January, 2025
1
OA No. 3110/2019
Item No.16/C-I
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 3110/2019
Reserved on: 13.12.2024
Pronounced on: 29.01.2025
Hon'ble Mr. Rajinder Kashyap, Member (A)
Deb Singh, (Group „C‟), Post- Driver
Aged about 67 years
S/o Sh. Jeet Singh Mehra
R/o House No. 904, Himachali CGHS Ltd.,
Plot No. 8, Sector 03, Dwarka,
New Delhi-110078 ... Applicant
(By Advocate: - Mr. Raj Singh Phogat)
Versus
1. Union of India
Through Secretary
Ministry of Personnel,
Public Grievances & Pension,
Department of Personnel & Training
North Block, New Delhi-110011
2. The Under Secretary
Ministry of Personnel
Public Grievances& Pension,
Department of Personnel & Training
North Block, New Delhi-110011
... Respondents
(By Advocate: -Mr. Ashok Kumar)
2
OA No. 3110/2019
Item No.16/C-I
ORDER
By way of the present OA filed u/s 19 of the AT Act, 1985, the applicant, in para 8 of the OA has prayed for the following reliefs: -
"(i) To quash the impugned review order No. F.No. A-
20013/131/D-Ad.III(Pt. File) dated 22/05/2019 of the Respondent No. 02.
(ii) To direct the Respondents to provide disability pension and the other benefits as compensation in lump sum (in lieu of the disability pension) as per the Rules applicable,
(iii) To award cost in favour of the applicants and pass any other order or orders, which this Hon‟ble Tribunal may deem just & equitable in the facts & circumstances of the case."
FACTS OF THE CASE
2. The brief facts of the present case are that by way of the present application, the applicant impugns the order dated 22.05.2019 by which the respondent no. 2 has rejected his application for the grant of the disability pension or lump sum disability pension without passing any speaking order based on the third opinion of the Medical Board dated 02.05.2019 against the existing rules of the CCS (Extraordinary Pension) Rules.
3. It is submitted that the applicant joined the duty as peon with the respondents on 13.07.1971 and subsequently, was promoted as Staff Car Driver w.e.f. 10.02.1971. It is further submitted that the applicant was diagnosed with Ankylosing Spondylitis with 3 OA No. 3110/2019 Item No.16/C-I stiffness and deformity of spine and he was not in position to drive the vehicle. His case was, therefore, referred to Medical Board. The Medical Board vide letter dated 02.03.2007 opined that the applicant‟s case is of Ankylosing Spondylitis. The applicant was, therefore, not given the duty of driving the vehicle and he was asked to perform the duties of a peon. The applicant states that he retired from the service w.e.f. 31.08.2011 on attaining the age of superannuation.
SUBMISSION MADE BY RESPONDENTS
4. The respondents have filed their counter reply on 08.08.2022 wherein they have submitted that the disability pension or extraordinary pension is granted to a disabled employee if the disablement is caused by a wound, injury or disease attributable to Government Service or if it existed prior to government service but was aggravated during and remains worsened by it. As per Rule 3-A (1) (a) of Extraordinary Pension Rules, eligibility for extraordinary pension is as follows:-
"Disablement shall be accepted as due to Government service, provided that it is certified that it is due to wound, injury or disease which-
(i) is attributable to Government service, or
(ii) existed before or arose during Government service and has been and remains aggravated thereby."4 OA No. 3110/2019
Item No.16/C-I
5. The respondents contend that these rules are applicable to serving Government servants and not on retired Government employees. Applicant has already retired from the Government service w.e.f. 31.08.2011. They also contend that the applicant requested for disability pension after more than 7 years of his retirement. It is nowhere mentioned in the medical certificates/opinion of the Medical Board that this disease of applicant has occurred due to the Government service.
6. The respondents further contend that the present OA is barred by limitation and hence, the same is not maintainable as the applicant had filed the present OA after more than 7 years of his retirement. It is well settled law that submission of representation does not revive the limitation.
CASE LAWS RELIED UPON BY THE PARTIES
7. Learned counsel appearing for the applicant places reliance on the orders/judgments of Hon‟ble Apex Court in Civil Appeal No. 9389 of 2014 titled Union of India & Anr. Vs. Surender Singh Parmar decided on 20.01.2015, in Civil Appeal No. 418 of 2012 titled Union of India & Ors. Vs. Ram Avtar decided on 10.12.2014 and in Civil Appeal No. 4949 of 2013 titled Dharamvir Singh Vs. Union of India & Ors. decided on 02.07.2013.
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8. On the other hand, learned counsel appearing for the respondents places reliance on order/judgment of Hon‟ble High Court in W.P. (C) 14194/2023 titled Nawal Kishore Vs. Union of India & Anr. decided on 01.11.2023.
9. I have heard learned counsels for the parties and considered the submissions made by them.
ANALYSIS
10. It is not in dispute that the applicant joined the duty as peon with the respondents on 13.07.1971 and subsequently, was promoted as Staff Car Driver w.e.f. 10.02.1971. It is further submitted that the applicant was diagnosed with Ankylosing Spondylitis with stiffness and deformity of spine and he was not in position to drive the vehicle. His case was, therefore, referred to Medical Board. The Medical Board vide letter dated 02.03.2007 opined that the applicant‟s case is of Ankylosing Spondylitis. The applicant was, therefore, not given the duty of driving the vehicle and he was asked to perform the duties of a peon. The applicant was retired from the service under the respondents w.e.f. 31.08.2011 on attaining the age of superannuation. In the total tenure of service i.e. 40 years, 1 month and 18 days, the applicant has spent around 35 years as Staff Car Driver. On 10.02.1972, the applicant was promoted to the post of Staff Car Driver and in the 6 OA No. 3110/2019 Item No.16/C-I year 2007, he was once again given the duty of peon on the basis of Medical Board‟s opinion vide letter dated 07.03.2007.
11. In the order/judgment in Civil Appeal No. 9389 of 2014 titled Union of India & Anr. Vs. Surender Singh Parmar decided on 20.01.2015, the Hon‟ble Apex Court has held as under: -
"4. The respondent initially approached the High Court of Delhi by filing Writ Petition (C) No.12507C of 2004. It was pointed out before the High Court that the Division Bench of the Bombay High Court in Writ Petition No.430 of 2005 titled Gurmukh Singh v. UOI vide judgment dated 22nd November, 2006 declared the Navy (Pension) Regulation 82 (a) as null and void being ultra vires to Article 14 of the Constitution of India. Regulation 82(a) provided that the benefit of condonation of shortfall in pensionable service shall not be applicable to the case in which a sailor got the discharge from the service at his own request. It was also brought to the notice of the High Court that similar finding was given by the Delhi High Court in the case of the respondent in Writ Petition (C) No.12507 of 2004 vide order dated 6th November, 2007 and that the appellant-Union of India was directed to consider the case of the respondent for the purpose of condoning the deficiency in service and pass appropriate orders within three months.
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8. In the present case, the appellant has not challenged the validity of judgment passed by the Bombay High Court wherein Regulation 82(a) was declared as ultra vires. The aforesaid finding of the Bombay High Court was also accepted by the Delhi High Court in the case of the respondent. In absence of any challenge before this Court, we are not inclined to decide the question of validity of Regulation 82(a) which has already been declared ultra vires and violative of Article 14 of the Constitution of India.
9. It is not in dispute that the respondent has completed 13 years, 10 months and 13 days of service under the appellant. In view of declaration of Regulation 82(a) ultra vires, the prayer of the respondent for considering his case for condonation cannot be rejected on the ground that he voluntarily sought permission to leave the service. The aforesaid submission was also accepted by the High Court in the earlier writ petition preferred by the respondent.
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13. In the facts of the case, we are of the view that it should have been made clear that the respondent shall be entitled to benefit w.e.f. 14th August, 2001 and not prior to the said date. The order passed by the Tribunal stands modified to the extent above. The appeal stands disposed of with aforesaid observations.
12. Admittedly, in the Civil Appeal No. 418 of 2012 titled Union of India & Ors. Vs. Ram Avtar decided on 10.12.2014, the Hon‟ble Apex Court in Paras 4 and 6 has held the following: -
"4. By the present set of appeals the Appellants) raise the question, whether or not, an individual, who has retired on attaining the age of superannuation or on completion of his tenure of engagement, if found to be suffering from some disability which is attributable to or aggravated by the military service, is entitled to be granted the benefit of rounding-off of disability pension. The appellants) herein would contend that, on the basis of Circular No. 1(2)/97/D(Pen-C) issued by the Ministry of Defence, Government of India, dated 31.01.2001, the aforesaid benefit is made available only to an Armed Forces Personnel who is invalidated out of service, and not to any other category of Armed Forces Personnel mentioned hereinabove.
5. We have heard learned counsel for the parties to the lis.
6. We do not see any error in the impugned judgment(s) and order (s) and therefore all the appeals which pertain to the concept of rounding-off of the disability pension are dismissed, with no order as to costs."
13. In another Civil Appeal No. 4949 of 2013 titled Dharamvir Singh Vs. Union of India & Ors. decided on 02.07.2013, the Hon‟ble Apex Court has held as under: -
"31. In the present case it is undisputed that no note of any disease has been recorded at the time of appellant's acceptance for military service. The respondents have failed to bring on record any document to suggest that the appellant was under
treatment for such a disease or by hereditary he is suffering from such disease. In absence of any note in the service record at the time of acceptance of joining of appellant it was incumbent on the part of the Medical Board to call for records and look into the same before coming to an opinion that the disease could not have been detected on medical examination prior to the acceptance for military service, but nothing is on the record to suggest that any such record was called for by the Medical Board or looked into it 8 OA No. 3110/2019 Item No.16/C-I and no reasons have been recorded in writing to come to the conclusion that the disability is not due to military service. In fact, non-application of mind of Medical Board is apparent from Clause (d) of paragraph 2 of the opinion of the Medical Board, which is as follows:
"(d) In the case of a disability under C the board should state what exactly in their opinion is the cause thereof. YES Disability is not related to mil service"
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34. As per Rule 423(a) of General Rules for the purpose of determining a question whether the cause of a disability or death resulting from disease is or is not attributable to service, it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a field service/active service area or under normal peace conditions.
"Classification of diseases" have been prescribed at Chapter IV of Annexure I; under paragraph 4 post traumatic epilepsy and other mental changes resulting from head injuries have been shown as one of the diseases affected by training, marching, prolonged standing etc. Therefore, the presumption would be that the disability of the appellant bore a casual connection with the service conditions.
35. In view of the finding as recorded above, we have no option but to set aside the impugned order passed by the Division Bench dated 31st July, 2009 in LPA No.26 of 2004 and uphold the decision of the learned Single Judge dated 20th May, 2004. The impugned order is set aside and accordingly the appeal is allowed. The respondents are directed to pay the appellant the benefit in terms of the order passed by the learned Single Judge in accordance with law within three months if not yet paid, else they shall be liable to pay interest as per order passed by the learned Single Judge. No costs."
14. In W.P. (C) 14194/2023 titled Nawal Kishore Vs. Union of India & Anr. decided on 01.11.2023, while dismissing the Writ Petition, the Hon‟ble High Court held as under: -
"4. Petitioner has further relied upon the „certificate of disability‟ obtained from Dr.RML Hospital on July 12, 2010 which reflects the cause of „disability‟ to be „Cervical Canal Stenosis with Myelopathy‟ and the petitioner is stated to be physically disabled having 75% permanent (physical impairment) in relation to his both lower limbs. It may be observed that „Cervical Canal Stenosis‟ is a condition in which the spinal canal is too small for 9 OA No. 3110/2019 Item No.16/C-I spinal cord and nerve roots. Consequently, due to narrowing, pressure is put on the spinal cord and the nerves that travel through spine to muscles, which may cause damage to spinal cord and condition is called „Myelopathy‟. The same may occur with symptoms or without symptoms and the most common cause of this condition is age related wear and tear changes in the spine that are related to arthritis, which may be a natural process. On the face of record, no medical certificate has been produced to support or link that the ailment suffered by the petitioner is „attributable‟ to bull hit injury in the year 1984 during the discharge of duties or the injury/disease got „aggravated‟ due to service conditions, as claimed by the petitioner.
The claim for E.O.P. for the first time was raised by the petitioner several years after superannuation. Merely the grant of special conveyance allowance before the retirement does not further the case that the disability was attributable to injury caused during course of duty or aggravated due to service conditions. The authority relied upon by the petitioner in support of the contentions for grant of E.O.P. before the Tribunal is distinguishable.
15. Even the OM No.45/22/97-P&PW(C) dated February 03, 2000 relied by petitioner, does not further his case. Vide aforesaid OM, the Fifth Central Pay Commission inter alia recommended that for determining the compensation payable for death or disability under different circumstances, the case could be broadly categorized in five distinct categories as under:
"Category „A‟ Death or disability due to natural causes not attributable to Government service. Examples would be chronic ailments like heart and renal diseases, prolonged illness, accidents while not on duty, etc. Category „B‟ Death or disability due to causes which are accepted as attributable to or aggravated by Government service. Diseases contracted because of continued exposure to a hostile work environment, subjected to extreme weather conditions or occupational hazards resulting in death or disability would be examples.
Category „C‟ Death or disability due to accidents in the performance of duties. Some examples are accidents while travelling on duty in government vehicles or public transport, a journey on duty is performed by service aircraft, mishaps at sea, electrocution while on duty, etc. Category „D‟ Death or disability attributable to acts of violence by terrorists, anti-social elements, etc. whether in their performance of duties or otherwise. Apart from cases of death or injury sustained by personnel of the Central Police Organizations while employed in aid of the civil administration in quelling agitation, riots or revolt by demonstrators, other public servants including police personnel, etc. bomb blasts in public places or transport 10 OA No. 3110/2019 Item No.16/C-I indiscriminate shooting incidents in public, etc. would be covered under this category.
Category „E‟ Death or disability arising as a result of (a) attach by or during action against extremists, anti-social element, etc. and (b) enemy action in international war or border skirmishes and war like situations, including cases which are attributable to
(i) extremists acts, exploding mines etc. while on way to an operational area; (ii) kidnapping by extremists; and (iii) battle inoculation as part of training exercises with live ammunition."
Further, clause 3 of aforesaid OM, provided that the cases covered under Category „A‟ would continue to be covered under the normal existing provisions of CCS (Pension) Rules, while the cases covered under Category „B, C, D & E‟, the scales of normal pension/disability pension would be as prescribed there under. We are of the considered opinion that the case of the petitioner falls under Category „A‟ which deals with death or disability due to natural causes not attributable to government service and, as such, the same would be governed by/covered under the normal existing provisions of CCS (Pension) Rules. The same cannot be considered to fall for grant of disability pension under CCS (EOP) Rules, 1939 as claimed by petitioner.
For the foregoing reasons, we do not find any merit in the petition. The writ petition is accordingly dismissed. No orders as to costs."
15. In terms of respondents‟ letter dated 25.01.2007, applicant‟s medical examination was conducted on 19.02.2007 and the Medical Board vide letter dated 07.03.2007 opined the following:-
"Sub: - Medical Examination of Shri Deb Singh, Staff Car Driver.
Sir.
With reference to your letter No. A 20013/131/Parl. Dated 25.1.2007 on the subject cited above. Sh. Deb Singh has been medically examined by Orthoboard on dated 19.2.2007 and the opinion of board is as under: -
"Mr. Deb Singh is a case of ankylosing ankylosis of spondylitis with kyphosis of spine & hip joints.
Even though Mr. Singh is fit for sitting job, he is unfit to drive vehicles.
Ankylosing spondylitis with stiffness & deformity of spine is covered under the diseases mentioned in Para 3 above (V. locomotor disability) under disability Act 1995."11 OA No. 3110/2019
Item No.16/C-I
16. Ankylosing spondylitis is a type of arthritis that causes inflammation in the joints and ligaments of the spine. It may also affect peripheral joints like the knees, ankles, and hips. When one is suffering from ankylosing spondylitis, the inflammation in the joints and tissues of the spine can cause stiffness. In severe cases, this may cause the vertebrae (bones in the spine) to fuse (grow together) and can lead to a rigid and inflexible spine. Persons with ankylosing spondylitis may have mild episodes of back pain and stiffness that come and go. But others have severe, ongoing pain with loss of flexibility in the spine. In addition, other symptoms may develop depending on which other areas of the body are affected by the disease. It is understood that the condition of person suffering from ankylosing spondylitis deteriorates with passage of time but it could be controlled through treatment options to help control symptoms. However, I leave this discussion here and move forward in this matter.
17. The applicant was appointed as driver in the year 1971. There is no dispute with regard to his health condition at the time of his appointment in the year 1971. In the disability Certificate dated 21.07.2006 (Annexure A-1), it is stated that he is suffering from ANKYLOSING SPONDYLITIS WITH STIFFNESS AND DEFORMITY OF SPINE and has 50% (fifty percent) permanent physical impairment in relation to his 12 OA No. 3110/2019 Item No.16/C-I Spine. This medical condition has happened to the applicant while rendering almost three and a half decades of service in the government as a driver and his condition aggravated while rendering Government service. Only after medical examination, it was found out that the applicant is unfit for driving. It is clear that the medical condition of applicant has aggravated while performing government duty as a driver. Apparently, this deformity has evolved over a period of time and could be found out by the applicant when it has already caused 50% damage. During all this time, the applicant has performed his duties diligently as there is no material to the contrary in the pleadings or while arguing the matter orally, therefore, I hold the view that the case of applicant falls within above mentioned Category „B‟ of Schedule II of the CCS (Extraordinary Pension Rules).
18. The Disability Certificate dated 21.07.2006 (Annexure-A
1) and Concession Certificate dated 08.08.2006 (Annexure A-
2) was issues to the applicant. After Medical Examination by the Orthoboard on 19.02.2007, the applicant was declared "Unfit" for driver job. The final recommendations of the Medical Board were issued on 07.03.2007 and thereafter, the applicant was removed from driver duty and assigned some other work.
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19. Schedule I - A of CCS (Extraordinary Pension) Rules contains list and classification of diseases which can be contracted by service and Ankylosis and acquired deformities resulting from injuries is one of them. In Schedule II, the compensation payable for death or disability under different circumstances, and the cases are categorized in five distinct categories. Category „B‟ is identified as one of the categories and for facility of reference, „Category B' of Schedule II of Extraordinary Pension Rules is as follows: -
"Category 'B'. -Death or disability due to causes which are accepted as attributable to or aggravated by Government service. Diseases contracted because of continued exposure to a hostile work environment, subjected to extreme weather conditions or occupational hazards resulting in death or disability would be examples."
20. In view of above, the original application is allowed with the following directions: -
(a) Order dated 22.05.2019 of respondent No. 2 is quashed and set aside. The respondents are directed to sanction the Disability Pension and allowance as compensation in lump sum (in lieu of disability pension) with arrears of disability pension w.e.f.
01.09.2011, within 12 (Twelve) weeks from the date of receipt of certified copy of this order.
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(b) Respondent No. 2 shall pay a cost of Rs. 20,000/- (Rs. Twenty thousand only) to the applicant within the above mentioned 12 weeks.
(c) Pending MAs, if any, stand closed.
(Rajinder Kashyap) Member (A) /neetu/