Punjab-Haryana High Court
Chander Parkash vs State Of Haryana & Others on 18 November, 2013
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CWP No.7290 of 1997 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No.7290 of 1997
Date of decision:18.11.2013
Chander Parkash ....Petitioner
Versus
State of Haryana & others ......Respondents
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr.Sudhir Aggarwal, Advocate, for the petitioner.
Mr.G.S.Chahal, Addl.A.G., Haryana.
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G.S.Sandhawalia J.(Oral)
1. Challenge in the present writ petition is to the order dated 08.06.1995 (Annexure P5), passed by respondent No.2, whereby the petitioner was denied pension on the ground that the service period was only 7 years, 9 months and 27 days and as per the rules, 10 years qualifying service was essential for grant of pension.
2. The case set up by the petitioner in the writ petition was that he was selected as a Driver and joined services on 05.05.1981, after undergoing 4 weeks training. During the course of his duty, he met with an accident on 28.08.1984 and was seriously injured and admitted to All India Medical Institute, Delhi for treatment, having suffered injuries on head and on half of his body. Due to his physical condition, he was assigned light duty on 26.12.1985 as Adda Incharge, Pataudi wherein he worked for 4 years to the satisfaction of the officers. He was sent for medical examination vide letter dated 17.10.1989 and was found unfit for driving bus as he was suffering from disability from left side known as Gemiplegia, as per the medical report dated 26.10.1989. Thereafter, he was given Sailesh Ranjan 2013.12.03 13:03 I attest to the accuracy and integrity of this document CWP No.7290 of 1997 -2- 3 months notice of retirement on 10.11.1989 and was retired vide order dated 08.02.1990 w.e.f. 10.02.1990 under Rule 5.18 of Punjab Civil Services Rules, Volume-II (hereinafter to be referred to as the 'Rules').
3. An appeal was filed before the Transport Commissioner for setting aside the order of retirement but no action was taken on the appeal, as per pleadings (however, counsel for the petitioner states that the said appeal was dismissed). Another representation was filed on 29.10.1991 for allowing him to serve on light duty which was filed on 04.07.1994 by the respondents. On 01.03.1995, the petitioner made a request that he was a poor man having 5 members to maintain and his condition was bad and therefore, he be sanctioned pension. The said request was declined vide the impugned order dated 08.06.1995. Resultantly, the present writ petition has been filed on the strength of Rule 5.11 of the Rules.
4. State, in its written statement, took up the plea of limitation and the fact that the petitioner had less than 10 years of service and therefore, was not entitled for pension since he was retired under Rule 5.18 of the Rules. The fact that the petitioner was injured in the accident while on duty was admitted and that he was allotted light duty as Adda Incharge was also not denied. Petitioner, being appointed on the post of Driver, was found unfit and therefore, was retired on 10.02.1990 and the order of dismissal of the appeal filed by the petitioner was conveyed to him on 04.07.1994. Pension was denied on the ground that he had only 7 years, 9 months and 25 days of service whereas, under the rules, 10 years of qualifying service was necessary for grant of pension.
5. Counsel for the petitioner has placed reliance upon Rule 5.11 of the Rules to submit that once the rules itself provide that pension is to be granted on retirement on account of bodily or mental infirmity, the issue of 10 years of Sailesh Ranjan qualifying service can be no bar. Reliance has been placed upon a judgment of 2013.12.03 13:03 I attest to the accuracy and integrity of this document CWP No.7290 of 1997 -3- this Court in Raghbir Chand Vs. State of Haryana 1997(1) S.C.T. 503 to contend that the requirement of serving 10 years would not be applicable, in such circumstances, when the person who had been retired on the ground of being physically unfit to serve, is entitled for pension. Rule 5.11 of the Rules reads as under:
"5.11. An invalid pension is awarded, on his retirement from the Public Service, to a Government employee, who by bodily or mental infirmity is permanently incapacitated for the public service, or for the particular branch of it to which he belongs.
Note. -The amount of invalid pension shall not be less than amount of normal family pension admissible under the family Pension Scheme, 1964."
Whereas, Rules 5.12, 5.14 & 5.18 reads as under:
"5.12. In the case of partial incapacity (vide alternative certificate in rule 5.26), a Government employee should, if possible, be employed even on lower pay so that the expense of pensioning him may be avoided. If there be no means of employing him even on lower pay, then, he may be admitted to pension, but it should be considered whether, in view of his capacity for partially earning a living, it is necessary to grant to him the full pension admissible under the rules.
5.14. A Government employee discharged on other grounds other than those stated in rule 5.11 and 5.12 has no claim to pension under rule 5.11, even though he can produce medical evidence of incapacity for service.
5.18. A Government employee, who has submitted a medical certificate of incapacity for further service shall, if he is on duty, be invalided from service, form the date of relief of his duties which should be arranged without delay on receipt of the medical certificate or, if he is granted leave under rule 8.18 of Punjab Civil Service Rules, Volume I, Part I, on the expiry of such leave. If he is on leave at time of submission of the medical certificate, he shall be invalided from service on the expiry of that leave or extension of leave, if any, granted to him under rule 8.18 of Punjab Civil service Rules, Volume I, Part I."Sailesh Ranjan 2013.12.03 13:03 I attest to the accuracy and integrity of this document CWP No.7290 of 1997 -4-
6. Present case is a classic example of the Welfare State who is supposed to protect and to look after his employees who were injured while on duty but who are being discarded like waste paper without even trying to adjust them in another job. Inspite of the fact that the rules provided that an employee could be employed on lower pay so that the expense of pensioning could be avoided, they are even being denied invalid pension. This Court in Raghbir Chand (supra), while examining the case of similarly situated person who was retired prior to completing 10 years of service, held that the said rule dealt with a particular matter and was a separate rule which would preclude the applicability of the general rule. Relevant observations read as under:
"5. I have heard the learned counsel representing the parties and gone through the records and I am of the view that if a particular matter is specifically dealt with in a separate rule, it is that rule which will apply and would preclude the applicability of a general rule. If an employee was to get pension only after serving ten years, then in that case whatever might have been the circumstances of his retirement, he would have been entitled to pension. An employee could retire after ten years of service on the ground that he had become physically unfit to serve. There was absolutely no necessity to frame a separate rule dealing with the retirement of an employee when he was to become physically unfit to hold the post."
7. Thereafter, the relief was granted to the petitioner and he was held entitled for invalid pension under Rule 5.11 of the Rules. The said judgment was thereafter, approved by a Division Bench of this Court in Parvesh Devi Vs. State of Haryana & others 2007 (1) S.C.T. 609 and reference was also made to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, the 'Disability Act'). In that case, there was no order of retirement and the petitioner was lying in coma being 100% incapacitated due to the head injury suffered by him. This Court, keeping Sailesh Ranjan in view the provisions of the Disability Act, apart from granting pension, also 2013.12.03 13:03 I attest to the accuracy and integrity of this document CWP No.7290 of 1997 -5- directed that the petitioner, in that case, was entitled for salary till his date of superannuation alongwith interest @ 8%. Relevant portion of the judgment reads as under:
"10. In view of the above, the writ petition is allowed. Order dated 4.6.2002 ( Mark "A" ) relieving the petitioner from service and order dated 15.2.2005 (Annexure P.8) declining the request of the husband of the petitioner for grant of pension are quashed. Respondents are directed to pay salary to the petitioner as per the rates by deeming fiction as if he is in service and has been working against a supernumerary post. The arrears of pay as was being drawn by the husband of the petitioner be calculated from 1.7.2002 upto date and the payment be made to the wife of the petitioner in accordance with the rules within a period of one month from the date certified copy of the order is produced before the respondents. The salary every month shall be paid to the petitioner till the date of superannuation. The respondents shall also be liable to pay interest @ 8 percent on the arrears of salary from the the date the salary was due i.e. 1.7.2002 till the date of its payment. The amount of Rs.39040/- already paid to the petitioner as service gratuity shall be set off from the arrears of salary. On attaining the age of superannuation, the respondents shall pass an order of retirement alongwith an order calculating the pension of the husband of the petitioner in accordance with law. The wife of the petitioner shall also be entitled to family pension accordance with the rules."
8. The preliminary objection that the writ petition is time-barred is totally without any basis. The petitioner was retired on 10.02.1990 and filed a representation on 29.10.1991 pleading that he be put on light duty, which was filed alongwith the dismissal of his appeal on 04.07.1994. Thereafter, he staked his claim for pension which was rejected on 08.06.1995 and resultantly, he filed the writ petition in May, 1997. Thus, there is no delay on part of the petitioner. Even otherwise, pension is a recurring right which arises every month and it does not lie in the mouth of the State to deny the same to its employees. Such rights cannot be denied on such technical grounds, by a Welfare State, as has been held Sailesh Ranjan 2013.12.03 13:03 I attest to the accuracy and integrity of this document CWP No.7290 of 1997 -6- by a Division Bench in Rattan Singh Vs. State of Haryana 1995 (1) PLR 274. Relevant portion of the judgment read as under:
"7. Delay and laches are twin grounds evolved by Courts for denying relief to a person who approaches it after a lapse of considerable time for issue of a writ under Article 226 of the Constitution of india. The rule that the Court will not give relief to a person who has filed a petition after a lapse of long time is a rule evolved by the Courts. It is not a legislative instrument like the Limitation Act, which prevents the Courts from granting relief in a given case. Rather, it is a rule of self-imposed limitation innovated by the Courts for not issuing orders which would unsettle the settled things or where a third party would be adversely affected due to the issue of a writ after a long delay. This rule which forms part of the Judge-made law cannot, however, be applied to each and every case for non-suiting a petitioner irrespective of the nature of claim and the circumstances which have contributed to the delay in filing of the petition. What we wish to emphasize is that on strait-jacket formula or wooden rule can be applied for declining or not declining the relief to a petitioner, who has approached the High Court for appropriate relief under Article 226 of the Constitution of India. In each and every case the Court shall have to scrutinise the relevant facts for determining as to whether it will be appropriate to exercise jurisdiction in favour of a person who has approached it after a long lapse of time. In a given case Court may decline relief to a person only on the ground that he has approached it after a passage of few months counted from the date of accrual of cause of action. In another case it may give relief to a person who has filed a petition even after lapse of many years. Primary consideration, which must weight in the mind of the Court while adjudicating upon an objection of delay of laches, is as to whether the petitioner has been grossly negligent in pursuing his remedy and whether the delay was resulted in a situation where rights of others have been settled and it would be inequitable to unsettle those rights."
9. Accordingly, keeping in view the observations made in Raghbir Chand (supra) and Parvesh Devi (supra), the present writ petition is allowed. Order dated 08.06.1995, wherein, the petitioner's claim for pension had been Sailesh Ranjan 2013.12.03 13:03 I attest to the accuracy and integrity of this document CWP No.7290 of 1997 -7- declined is quashed and it is held that the petitioner is entitled for invalid pension from 10.02.1990, as envisaged in Rule 5.11 of the Rules. The respondents are directed to pay the invalid pension alongwith arrears due as on today, within a period of 2 months from the receipt of a certified copy of this order, alongwith interest of 8% per annum.
10. Writ petition is allowed in the abovestated terms.
18.11.2013 (G.S.SANDHAWALIA)
sailesh JUDGE
Sailesh Ranjan
2013.12.03 13:03
I attest to the accuracy and
integrity of this document