Union of India & Anr Vs. Bashirbhai R.Khiliji  Insc 606 (16
A.K.MATHUR & TARUN CHATTERJEE
1. This appeal is directed against the order passed by the Division Bench of
the High Court of Gujarat at Ahmedabad whereby the Division Bench of the High
Court has set aside the order passed by the Additional Deputy Inspector General
of Police, Central Reserve Police Force, ( for short, CRPF), Group Centre,
Gujarat, Gandhi Nagar dated 26.4.1996 and held that the respondent is entitled to
invalid pension which may be calculated in accordance with rules and paid to
him within three months along with interest at the rate of 9 per cent from
2. Brief facts which are necessary for disposal of this appeal are that the
respondent herein was selected and appointed as Armed Constable in the Central
Reserve Police Force. He was posted at Amritsar (Punjab) in the Anti-terrorist
squad. Thereafter, he was posted at Srinagar (Jammu & Kashmir) for the
protection of citizens against terrorists. While on duty due to heavy snowfall
in Srinagar he suffered from Pyrogenic meningitis and neurosensory deafness
(bilateral). Consequently, he was referred to S.M.N.S.Hospital and was admitted
there from 19.1.1990 to 14.2.1990 and thereafter at the Base Hospital -1, New
Delhi and All India Institute of Medical Sciences, New Delhi from 17.3.1990
to 16.4.1990 for investigation and treatment. He was diagnosed as a patient of
' Pyrogenic Meningitis with B.I. Sensonery Deafness'. Despite medical treatment
at various hospital, the respondent could not be cured and he was declared
unfit for active duty. His case was referred for consideration whether he could
do alternative job. But there also he could not secure one as he was found
invalid. Finally he was invalidated from service on 1.7.1991 (F.N.) vide office
order dated 27.6.1991 passed by the Group Commander, CRPF, Gandhinagar. The
respondent requested for invalid pension but that was rejected on the ground
that he had not completed the qualifying service of ten years. But he has been
given service gratuity of Rs.4,140/- apart from a recurring payment of
Rs.1000/- per month from Risk Fund for life vide order dated 12.12.1991. The
respondent filed S.C.A.No. 12432 of 1994 before the High Court of Gujarat
praying for invalid pension. But by order dated 28.2.1996 the High Court
directed that the representation of the respondent for separate pension be
considered in accordance with rules. It was also observed that the respondent's
case for separate entitlement to invalid pension was distinct from the
entitlement from the risk fund and if the entitlement from the risk fund was
the same as invalid pension, reasoned order be passed in that respect. Pursuant
to that direction, respondent's representation was considered and was rejected
by order dated 26.4.1996. The respondent also made a representation with regard
to recovery of Rs.22231/- . This was rejected on the ground that the respondent
had been overpaid with respect to the period he remained under treatment and
medical examination. The respondent thus approached the High Court again by
filing the present writ petition and claimed for invalid pension. This was
opposed by the appellants that the respondent is not entitled to invalid
pension as per Central Civil Services (Pension) Rules, 1972, since he had not
completed ten years of service. The Division Bench after considering Rule 38
which deals with the invalid pension took the view that since the respondent's
invalidity was 100 per cent, therefore he was entitled to invalid pension and
the condition of ten years of qualifying service could not be invoked so as to
deny the respondent the invalid pension. The Division Bench further held that
since the respondent while on duty has suffered the permanent disability,
therefore, whatever excess payment made to him should not be recovered.
Aggrieved against this impugned order the present appeal was filed by the
3. We have heard learned counsel for the parties and perused the records.
There is no two opinion in the matter the respondent while serving at height
has suffered 100 per cent invalidity. He has already been granted Rs.1000/- per
month out of the risk fund which is specially reserved for such disability. But
so far as the question of granting invalid pension is concerned, that cannot be
considered though it may be harsh, as per the scheme of the Pension Rules. The
respondent being a constable in the Central Reserve Police Force is governed by
Reserve Police Force Act, 1949
and Central Reserve Police Force Rules, 1955 (hereinafter to be referred to as
'the Rules of 1955'.). According to Rule 42 of the Rules of 1955, the
respondent is governed by the Central Civil Services (Pension) Rules, 1972. The
Pension Rules of 1972 contemplates various types of pensions in Chapter V. Rule
35 deals with superannuation pension. Rule 36 deals with retiring pension. Rule
37 deals with pension on absorption in or under a Corporation, Company or Body.
Rule 38 which deals with invalid pension reads as under :
" 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 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 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 b 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
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 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."
Rule 39 deals with compensation pension. Rule 40 deals with compulsory
retirement pension. Rule 41 deals with compassionate allowance. These are
various kinds of pensions admissible to Government servants. Chapter VII deals
with regulation of amounts of pensions. This chapter deals with how the amount
to be determined after putting in qualifying service. Rule 48 deals with
retirement on completion of 30 years' qualifying service. Rule 48A deals with
retirement on completion of 20 years' qualifying service.
Rule 49 which is relevant for our purpose, reads as under :
" 49. Amount of Pension (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 les 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 Rupees three
hundred and seventy-five per mensem.
) 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.
(3) 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.
(4) The amount of pension finally determined under Clause () or Clause (b)
of sub-rule, 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.
(5) & (6) Deleted."
We are presently concerned with two provisions of the Rules i.e. Rule 38 and
Rule 49. Rule 38, as reproduced above, contemplates the invalid pension. The
procedure has been mentioned therein i.e. in case an incumbent retires from
service on account of bodily or mental infirmity which permanently
incapacitated him for the service, then a medical certificate of incapacity
shall be given by the concerned authorities and in particular form No.23 the
same may be applied before the competent authority. It is true that the
qualifying service is not mentioned in Rule 38 but Rule 49 which deals with the
amount of pension stipulates that 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. Therefore, the minimum qualifying service of ten years is mentioned in
Rule 49. The word 'qualifying service' has been defined in Rule 2(q) of the
Rules which reads as under :
" (q) 'Qualifying Service' means service rendered while on duty or
otherwise which shall be taken into account for the purpose of pensions and
gratuities admissible under these rules;"
Therefore, the minimum qualifying service which is required for the pension
as mentioned in Rule 49, is ten years. The qualifying service has been
explained in various memos issued by the Government of India from time to time.
But Rule 49 read with Rule 38 makes it clear that qualifying service of pension
is ten years and therefore, gratuity is determined after completion of
qualifying service of ten years. Therefore, for grant of any kind of pension
one has to put in the minimum of ten years of qualifying service. The
respondent in the present case, does not have the minimum qualifying service.
Therefore, the authorities declined to grant him the invalid pension.
But the amount of gratuity has been determined and the same was paid to him.
4. We feel that this is little harsh that an incumbent while discharging his
onerous duties became completely deaf. Therefore, the respondent should have
been adequately compensated for that.
A sum of Rs.1000/- per month has already been granted to him from the Risk
Fund which is specially reserved for such contingency. So far as the pension is
concerned, as he has not put in ten years of minimum qualifying service, it
would not be admissible to him.
However, a sum of Rs.22,231/- which has been paid to him during the medical
treatment, shall not be recovered from him. Hence, in view of our above
discussion, we allow this appeal and set aside the order of the Division Bench
of the Gujarat High Court. There would be no order as to costs.
5. However, before parting with this case we feel that since the respondent
while discharging his duties has become invalid to serve anywhere on account of
impairment of both of his ears, therefore, in fitness of things, at least
something should be given to him for survival and we direct that a sum of
Rupees one lakh be given to him ex gratia. This amount in question be released
by the appellants to the respondent within a period of two months from the date
of receipt of a copy of this judgment.