Jammu & Kashmir High Court
Abdul Majid Shah vs Union Of India (Uoi) And Ors. on 7 September, 2007
Equivalent citations: 2008(2)JKJ240
JUDGMENT Bashir A. Kirmani, J.
1. Enrolled as a constable in BSF on 11.6.1969 the petitioner somewhere in 1976 while on leave developed mental disorder 'schizophrenia' and on examination by medical board constituted under orders of DIG, BSF Bandipur was awarded medical category EEE and boarded out on ground of invalidation and refused invalid pension to which he was entitled under rules governing his service.
2. Aggrieved thereby he has instituted this writ petition for a direction to respondents accordingly.
3. In their reply affidavit, the respondents while challenging maintainability of writ petition have sought to resist petitioner's claim of invalid pension on the ground that he didn't have the qualifying service of ten years to his credit which in terms of relevant rules disentitled him from receiving such pension.
4. During course of submissions while petitioner's counsel has reiterated the contents of his writ petition to canvass petitioner's title to invalid pension, the respondents counsel in addition to what has been said above also argued that petitioner was not entitled to such pension particularly because the petition was belated by decades.
5. With agreement of appearing counsel the writ petition is admitted to hearing and taken up for disposal.
6. I have heard learned Counsel and considered the mater. The petitioner's service along with his title to pension in given circumstances is governed by Central (CS) Rules, 1971 which deals with subject of pension under rules 38 and 49 thereof which for the sake of convenience may be reproduced herein below:
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 incapacities 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 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 to be examined.
3. The forum of the medical certificate to be granted 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, 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.
49. Amount of pension:
(1). In the case of 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 months period of qualifying service.
(2) ...
(a) In the case of a government servant retiring in accordance with the provisions of these rules completing qualifying service of not less than thirty years, the amount of pension shall be calculated at fifty percent 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;
(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.
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 and reckoned as qualifying service.
The amount of pension finally determined tinder Clause (a) or Clause (b) 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".
7. On cumulative reading of both the rules it transpires that while rule 49 governing grant of pension to normal retired personnel prescribes the qualifying age as ten years, it does not specifically extend its application to the cases where the incumbent has been boarded out on medical grounds as the petitioner admittedly has been, which situation is more aptly covered under rule 38 wherein no qualifying service for entitlement of the pension to the retired personnels been prescribed ostensibly because prescribing qualifying service for title of invalid pension would render the provision regarding invalid pension redundant because in the event of having qualifying service as contained in rule 49, there would be no need of having separate provision like rule 38 to cover the cases of invalid pension for the personnel boarded out on medical grounds. In that view, therefore, the petitioner's case appears to be covered by Rule 38 and not 49, rendering the tenure of his service irrelevant. To derive support for the view reference be made to a Judgment of Delhi High Court reported as 2003 (5) SLR 450, wherein while dealing with a similar situation with petitioner having been boarded out because of being suffering from aids, this Court observed in Para 10 of the judgment as follows:
The present case also calls for some judicial engineering of the Rules and Regulations which are inherently and intrinsically beneficial in nature and content, thus calling for a wide interpretation and application. Rule 38 of the Pension Rules does not prohibit the grant of invalid pension if the bodily or mental infirmity which permanently incapacitates the person concerned results from the nature of duties officially performed. It is contended by Mr. Duggal that in granting such pension the petitioner would in fact be bestowed a premium for his sexual deviation or recklessness. Assuming that the petition acquired AIDS through extra-martial sexual intercourse, it could hardly be presumed that he intended to contract this fatal and astigmatic health disorder, leading immediately to ostracism, so as to become eligible for premature pension. He must surely be regretting his action even if he is responsible for his infection. 1 am unable to subscribed to the view that he would be happy to reap the benefit of an invalid pension. Given the choice, the petitioner or any other person in his place, would prefer to work rather than suffer from AIDS. One of the essential functions and duties of the Government and any other Authority directly soured from Government funds, is to extend Medical benefits and support to the suffering. The grant of invalid pension is not a paisa more than this base obligation. In the present ease we can steer clear from the controversy as to whether the infirmity to incapacity was attributable to or aggravated by service since Rule 38 of the Pension Rules unlike Rule 48 of the Regulations does not contemplate the causation.
Accordingly, a petitioner in given circumstances appear to be entitled to disability pension in terms of Rule 38 as quoted above.
8. In so far as the question of laches on part of petitioner to agitate the matter is concerned, 1 feel the same is not attracted.
9. Before proceeding ahead, it would be appropriate to quote a judgment of this Court in "Mani Ram v. Union of India and Ors." reported as wherein while allowing the petition, in Para 7 of the judgment, it has been observed as follows:
It is not the case of the respondents that the petitioner was suffering from Leprosy at the time of his entry into service. He served the Army right from 1947 to 1954. Therefore, it is presumed that the disease was detected during the service and is attributable to the Army Service. As far as the disability is concerned, the petitioner was boarded out with 100% disability. Under these circumstances, this petition is allowed with the direction to the respondents to determine and pay the disability pension to the petitioner right from the date of his discharge on medical grounds. Since according to the respondents' own stand the disability pension given to the petitioner for the period from 24.8.1954 to 10.5.1955 has been recovered from him, the petitioner is entitled to the disability pension right from the date of his discharge from the Army service on medical grounds.
10. Accordingly, the delay involved in institution of the writ petition does not appear "to disentitle the petitioner to the relief per se because of the similarities between the case in hand and the one quoted above.
11. Accordingly the writ petition is allowed with a direction to respondents to grant invalid pension to petitioner in terms of Rule 38 quoted above with effect from the date of his retirement. The amounts/sums/pension whatsoever already paid to him from whatever is found due to him in terms of this order may be deducted.
12. The writ petition is accordingly disposed of along with connected CMPs.