Holding

A minimum of ten years qualifying service is required for any pension, including invalid pension, so the respondent is not entitled to invalid pension, but is entitled to gratuity, the medical payments cannot be recovered, and an ex gratia of Rs.1 lakh is awarded.

Summary

The respondent, a constable in the Central Reserve Police Force, was invalidated after contracting pyogenic meningitis and suffering bilateral deafness while on duty. He applied for an invalid pension but was denied on the ground that he had not completed the ten years of qualifying service required under the Central Civil Services (Pension) Rules, 1972. The Gujarat High Court had directed that he be granted the pension, but the Union appealed. The Supreme Court held that Rule 49, read with Rule 38, makes ten years of qualifying service a prerequisite for any pension, including invalid pension, and therefore the respondent was not entitled to it. The Court affirmed payment of his gratuity, barred recovery of amounts paid during his medical treatment, and ordered an ex gratia payment of Rs.1 lakh. The appeal was allowed, setting aside the High Court's order granting the pension.

Issues considered

Whether an employee of the Central Reserve Police Force who has not completed ten years of qualifying service is eligible for invalid pension under Rule 38 of the Central Civil Services (Pension) Rules, 1972.
Whether the ten‑year qualifying service requirement in Rule 49 applies to the grant of invalid pension.
Whether amounts paid to the respondent during his medical treatment can be recovered.
Whether an ex gratia payment is appropriate in the circumstances.

Legislation cited

Central Civil Services (Pension) Rules, 1972s. Rule 38, s. Rule 49
Central Reserve Police Force Act, 1949
Central Reserve Police Force Rules, 1955s. Rule 42
Fundamental Ruless. Rule 9

Subjects

invalid pensionqualifying serviceCentral Reserve Police Forcegratuityex gratiarisk funddisabilityservice rules

Judgment

A UNION OF INDIA AND ANR.
v.
BASHIRBHAI R. KHILIJI

MAY 16, 2007

B [A.K. MATHURANDTARUN CHATTERJEE, JJ.]

Service LaY.~Pension-lnvalid Pension-Incumbent while discharging )-
his duties became incapable-Invalidated from service-Invalid pension '
denied-Gratuity paid and an amount fixed for monthly payment from Risk
c Fund-Writ Petition seeking the pension-High court directing grant of
pension- On appeal, held: Incumbent not entitled to pension as he did not
have minimum qualifYing service of ten years-However, in order to
compensate him, direction to pay him Rs. One lakh ex gratia-Centra/ Civil
Services (Pension ) Rules, 1972-rr. 38 and 49-Central Reserve Police
D Force Rules, 1955.

Respondent was appointed as Armed Constable in Central Reserve Police
Force. Respondent, while discharging his duties became invalid to serve
anywhere. He was invalidated from service. His request for invalid pension
-{
..
was rejected on the ground that he had not completed the qualifying service
E of ten years. He was given service gratuity and recurring payment of
Rs. 1000/- per month from Risk Fund, for life. An order of recovery of an
amount was also passed against the respondent, which was over-paid to him
with respect to the period he remained under treatment and medical
examination. Respondent filed Writ Petition seeking invalid pension. High
Court allowed the Writ Petition. Hence, the present Appeal.
F
y
Allowing the Appeal, the Court

HELD: 1. Rule 49 read with Rule 38 of Central Civil Services (Pension),
Rules, 1972 makes it clear that qualifying service of pension is ten years
and therefore, gratuity is determined after completion of qualifying service
G
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

H 1060
U.0.1. v. BASHIRBHAI R. KHILIJI [A.K. MATHUR, J.] 1061
determined and the same was paid to him. [Para 3) [1065-G, H; 1066-A) A
2. The respondent should have been adequately compensated. A sum
which was paid to him during the medical treatment, shall not be recovered
from him. 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, it is directed that a sum of Rupees one lakh be B
given to him ex gratis for his survival. [Para 4 and 5) [1066-A, B, CJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 686 of2005.

From the Judgment and Order dated 4.2.2004 of the High Court of
Gujarat at Ahmedabad in S.C.A. No. 2806/1998. C
P.P. Malhotra, A.S.G., Vineet Malhotra, Sunita Sharma, Chetan Chawla
and Sushma Suri for the Appellants.

Nitu Smita Das and V.N. Raghupa.by for the Respondent.
D
The Judgment of the Court was delivered by

A.K. MA THUR, J. I. 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, E
( 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 1.9. I 991.

2. Brief facts which .are necessary for disposa1 of this appeal are that F
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 G
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-I, 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
H
1062 SUPREME COURT REPORTS (2007) 6 S.C.R.

A 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
B was rejected on the ground that he had not completed the qualifying service
of ten years. But he has been given service g:atuity of Rs.4, 140/- apart from
a recurring payment ofRs.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 T
'-
High Court of Gujarat praying for invalid pension. But by order dated 28.2.1996
c 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
D was rejected by order dated 26.4.1996. The respondent also made a
representation with regard to recovery of Rs.2223 II- . 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
E 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
F 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 appellants.
G 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.I 000/- 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,
H that cannot be considered though it may be harsh, as per the scheme of the
U.0.1. v. BASHIRBHAI R. KHILIJI [A.K. MATHUR, J.] 1063

~ Pension Rules. The respondent being a constable in the Central Reserve A
Police Force is governed by the Central 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 B
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 ifa Government servant retires c
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 certificati.: of incapacity from the following medical
authority, namely:- D
(a) a Medical Board in the case ofa 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;
E
(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 F
~
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
reported. G

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 tlie Medical Certificate to be granted by the Medical
Authority specified in sub-rule (2) shall be as in Form 23. H
1064 SUPREME COURT REPORTS [2007] 6 S.C.R.

A (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."
B
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
c with retirement on completion of 30 years' qualifying service. Rule 48A deals
with retirement on completion of20 years' qualifying service. Rule 49 which
is relevant for our purpose, reads as under :

" 49. Amount of Pension
D (I) 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.
E (2) (a) In the case of a Government servant retiring in accordance
with the provisions of these rules after completing qualifying service
of not less 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.
F (b) In the case of a Government servant retiring in accordance
with the provisions of these rules before completing qualifying service r
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
G pension shall be less than Rupees three hundred and seventy-five per
mensem.)

anything contained in Clause (a) and Clause (b), the amount of invalid
pension shall not be less than the amount offamily pension admissible
H
U.0.1. v. BASHIRBHAI R. KHILIJI [A.K. MATHUR, J.] 1065
under sub-rule (2) of Rule 54. A
(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 (a) or
B
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.
,I ...;; (5) & (6) Deleted."

We are presently concerned with two provisions of the Rules i.e. Rule c
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 D
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 E
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
F
..,...,
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
G
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.
H
1066 SUPREME COURT REPORTS (2007] 6 S.C.R.

A 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. I000/- per month
B 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.22,23 II- which has been paid to him during the
;>--
medical treatment, shall not be recovered from him. Hence, in view of our '
c 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,
D 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. --<

K.KT. Appeal allowed.