WA 99/2003 BEFORE THE HON’BLE MR JUSTICE D. BISWAS, CHIEF JUSTICE (ACTING) THE HON’BLE MR. JUSTICE B.D. AGARWAL WRIT APPEAL NO. 99 OF 2003 1. Union of India, Represented by the Secretary, Ministry of Home Affairs, New Delhi. 2. The Director General Assam Rifles, Shillong - 11. 3. The Commandant, 5 Assam Rifles, C/o 99 APO. & & & APPELLANTS -Versus- Sri Prem Bahadur Chetri, Son of Late Prajapati Chetri, Village - Sonaipam, P.O. Lokra, District - Sonitpur, Assam. & & &RESPONDENT P R E S E N T HON’BLE MR. JUSTICE D. BISWAS, CHIEF JUSTICE (ACTG.) THE HON’BLE MR. JUSTICE B.D. AGARWAL For the Appellants : Mr. D. Baruah, Central Govt. Counsel. For the respondent : Mr. S.C. Biswas, Advocate. Date of hearing : 8.2.2007 Date of Judgment and : 8.2.2007 Order JUDGMENT AND ORDER (ORAL) This appeal is directed against the Judgment dated 17.7.2002 pas sed in Civil Rule No.6072/1997. The private respondent as writ petitioner filed the aforesaid Civil Rule praying for appropriate directions for payment of pensi on/disability pension on discharge from service on the ground of invalidity. It may be mentioned here that the respondent was enrolled as Rifleman on general du ty in the Assam Rifles in the year 1964. He was discharged from service after 14 years of service as claimed by the respondent. His prayer for payment of disabi lity pension was rejected by the concerned authority on the ground that there wa s delay in preferring the claim for disability pension and that the percentage o f disability is less than 60%. 2. The learned Single Judge allowed the writ petition directing the appellant authority to provide necessary disability pension along with arrears on the ground that the respondent would be deemed to be a soldier under the prov isions of Indian Army Act being on combatant duty. The learned Single Judge was of the view that the percentage of disability for grant of disability pension wi ll be 20% in the instant case and not 60% as pointed out by the concerned author ity. 3. We have heard Mr. D. Baruah, learned Central Government Counsel for the Union and also Mr. S.C. Biswas, learned counsel for the private responde nt. 4. There is no dispute with regard to the enrollment of the private respondent as rifleman on general duty. There is also no dispute that he was di scharged from service on 3rd October, 1978 i.e. after 14 years 3 months 17 days from the date of his appointment. With regard to computation of total qualifying service, Mr. Baruah pointed out that the respondent was absent from duty withou t authority for a period of 4 years 9 months 23 days and, less this period, the total qualifying service rendered by him is only 9 years 5 months 25 days, which is less than the qualifying service prescribed under the Rules for grant of dis ability pension. 5. Mr. Baruah, learned counsel for the appellant further pointed ou t that the respondent was rifleman on general duty and the provisions of the Arm y Act would apply to him only when he or his Unit is attached to or acting with the regular Army. Only in that case, Mr. Baruah elaborates, the provisions of th e Army Act and the Rules, in so far the disciplinary matters are concerned, woul d be applicable. 6. We have considered the submissions advanced by Shri Baruah. The submission advanced that the Army Unit to which the respondent was attached was not connected with the regular Army during the relevant period is based on the a verments made in the affidavit submitted by the Union. The private respondent di d not file counter to controvert the above submission. It is, therefore, clear t hat the provisions of the Army Act will not be applicable in the case of the pri vate respondent for the purpose of grant of disability pension. Therefore, his c ase will have to be considered for grant of pension within the provisions of the C.C.S. (Pensions) Rules. Rule 9(3) of Appendix-3 of C.C.S. Rules provides for d isability pension if the percentage of permanent disability is not less than 60% and the incumbent has rendered 10 years of service. This is in addition to the normal invalid pension provided under the C.C.S. (Pensions) Rules, 1972, provide d the claim is made within a period of five years. 7. In the instant case, as pointed out above, the petitioner has no t rendered 10 years of actual service as he was absent without authority from du ty for more than 4 years 9 months. The disability is also not upto the extent of 60%. No claim was also laid within five years. Therefore, under the C.C.S. (Pen sion) Rules, he is not entitled to disability pension. 8. Mr. S.C. Biswas, learned counsel for the respondent pointed out that the respondent suffered disability in an Army operation and, therefore, his case may be considered with compassion, at-least, the normal invalid pension ma y be granted to him. 9. We are not oblivious to the difficult nature of the duties and t he hazard required to be faced by riflemen of the Assam Rifles. We are also cons cious of the fact that the respondent had sustained disability during the course of an Army operation. For this reason, we are inclined to direct consideration of the respondent’s case for payment of normal invalid pension. 10. We, therefore, dispose of this appeal in modification of the jud gment to the extent indicated hereinbelow :- (i) The authority shall condone the delay in laying down the claim within fi ve years; (ii) The period of absence of 4 years 9 months 23 days shall be treated as on duty without pay for the purpose of pension only; (iii) After completing the above exercise, the authority shall pass appropriat e orders for payment of normal invalid pension. It is desired that the concerned authority shall comply with the order as expeditiously as possible.