Ex-Naik Run Singh vs Commandant, 54 Battalion, Border Security Force and Another

Paramjeet Singh J.—The instant writ petition has been filed by the petitioner under Articles 226/227 of the Constitution of India for directing the respondents to pay disability pension to the petitioner who was retired from service on medical ground.Brief facts of the case are that petitioner was enrolled with the respondent on 2.7.1966. The petitioner served the respondent for fourteen years and his work and conduct was found satisfactory. In the year 1979 during the course of employment, petitioner suffered injuries and was hospitalised for dislocation of left arm. After the medical treatment, to adjudge the suitability of the petitioner to continue in service, he was referred to the medical board. After examination, petitioner was given medical category ''C'' In spite of category ''C'', petitioner was continued to be assigned hard duties, he was due for promotion as Head Constable, but the promotion was withheld on the medical ground. Thereafter, medical board decided that petitioner had become medically unfit to continue in service, and as a result of which petitioner was retired from service on medical ground on 22.9.1980. The petitioner applied for alternate job to the respondent, but was not given. The petitioner has averred that a person retired on the ground of medical unsuitability is entitled to disability pension, if the person is not retained in service. In spite of fulfilling the conditions, i.e., medically unsuitable and not retained in service, petitioner has not been granted disability pension.

The respondents have filed written statement stating that writ petition has been filed after a delay of 16 years. Petitioner is not entitled to disability pension because he has been granted invalid pension @ Rs. 80/- per month. Petitioner has hot applied for re-employment or reinstatement in the year 1995. It is submitted that the petitioner is entitled to disability pension as the admissibility of disability pension is dependent upon following terms, which read as under :-

The individual sustained injury while he was on Government duty and he was subsequently boarded out from BSF service. The injury has been shown attributable to Government service in Medical Board proceedings but no Court of Inquiry/Staff Court of Inquiry conducted/found. The disability pension under CCS (EOP) Rules might have been admissible in his favour but as per Rule 6 Appendix (3) of CCS(EOP) Rules, no award shall be made in respect of an injury sustained more than five years before the date of application as such now he is not entitled for disability pension. The individual sustained injury in April ''70 and applied for disability pension in Oct ''88."

Replication has also been filed to the written statement filed by the respondents. Petitioner has made an averment that he had applied for employment, but was refused. It is averred that the petitioner is entitled to, disability pension.

I have heard counsel for the parties and perused the record.

Learned counsel for the petitioner has contended that petitioner joined service on 2.7.1966 and suffered injury in the year 1970 while performing duties and was placed in low medical classification CEE and invalidated out of service on 22.9.1980 after rendering 14 years 2 months and 19 days of service. Learned counsel for the petitioner has further contended that objection of delay and latches raised by the respondents is not sustainable in view of the judgment of the Hon''ble Supreme Court in case titled as S.R. Bhanrale v. Union of India and others 1 AIR 1997 Supreme Court 27. The pensionary benefits are recurring in nature and there is a recurring cause of action. The bar of limitation cannot be pleaded by the Government of India when the department itself had defaulted in making payments promptly.

Petitioner has contended that as per the Rules applicable, i.e., Central Civil Services (Extra-ordinary pension) Rules, 1939 as amended up to date, petitioner is entitled to disability pension as the disability is attributable to or aggravated by military service.

I have considered the rival contentions of the learned counsel for the parties. Factual aspect is not in dispute with regard to the service and the injury sustained during the course of employment and placement in low medical category. The relevant Rule 6 of Rules 1939 reads as under :-

No award shall be made in respect of (i) an injury sustained more than five years before the date of application, or

(ii) death which occurred more than seven years, (a) after the injury due to violence or accident was sustained or (b) after the Government servant was medically reported as unfit for duty on account of the disease of which he died.

An identical issue came up for consideration before a single Bench of this Court in CWP No. 3267 of 2009 titled as Jaswant Singh v. Union of India and others 2 decided on 10.3.2010 and while referring to Rule 6 of the Rules, reproduced above, this Court held as under :-

A perusal of the above Rule would show that it does mandate the claim to be submitted under Rules, 1939 within a period of 5 years from the date of sustaining the injury. However Rule 88 of Rules, 1972, which admittedly is applicable to the case of the petitioner as well, reads as follows :-

Power to relax.-Where any Ministry or Department of the Government is satisfied that the operation of any of these rules, causes undue hardship in any particular case, the Ministry or Department, as the case may be, may, by order for reasons to be recorded in writing, dispense with or relax the requirements of that rule to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner.

Provided that no such order shall be made except with the concurrence of the (Department of Personnel and Administrative Reforms).

A perusal of this Rule would show that where the Ministry or the Department of the Government is satisfied that the operation of any of these Rules, causes undue hardship in a particular case, the provisions of that particular Rule could be dispensed with or relaxed depending upon the case in hand. The Rule itself provides that in extra-ordinary cases of hardship, all or any of the provisions of the Rule could be dispensed with or relaxed depending upon the requirement. The stand of the respondents that Rule 6 of Rules, 1939 mandates a period and, therefore, cannot be relaxed, is totally overlooking the provisions, as contained under Rule 88 of Rules, 1972.

The facts and circumstances of the present case, as have been enumerated herein above which have not been disputed by the respondents, clearly spell out a case, which is of an extra ordinary hardship. This position was admitted and accepted by respondents, the competent authority, under whom the petitioner was performing his duties. In this view of the matter, the stand of the Pay and Account Office holding that Rule 6 of Rules, 1939 was mandatory and Rule 88 of Rules, 1972 could be invoked, is totally misplaced. Rule 88 of Rules, 1939 has been provided primarily to take care of cases of undue hardship, in which category, the case of the petitioner would fall.

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A direction is issued to the respondents to reconsider the claim of the petitioner by invoking the provisions of Rule 88 as provided under Rules, 1972 within a period of three months'' from the date of receipt of a certified copy of this order. The decision so taken by the respondents, be conveyed to the petitioner forthwith

Next contention of the learned counsel for the petitioner is that respondents had wrongly stated that the petitioner never applied for reemployment or reinstatement into service. This is factully incorrect. Petitioner had submitted for re-employment vide application dated 17.10.1988 (Annexure-P-6) and had also submitted application for reemployment earlier and vide letter dated 28.2.1989 (Annexure-P-7), his case was forwarded to Ministry of Home Affairs by Joint Assistant Director (Estt.) and vide letter dated 11.4.1989 (Annexure-P-8), petitioner was informed that he is not entitled to reemployment. The learned counsel for the respondent failed to controvert the contention of the learned counsel for the petitioner.

Petitioner has been placed in low medical category and has also not been rehabilitated by way of re-employment. So petitioner fulfils both conditions, i.e., medical low category and non re-employment to get disability pension.In view of the above, present writ petition is allowed. Respondents are directed to re-consider the claim of the petitioner by invoking the provisions of Rule 88 as provided under Rules 1972 of the Rules 1939 within a period of three months from the date of receipt of certified copy of this order. The decision so taken be communicated to the petitioner forthwith.

No order as to costs.