IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 5926 of 2008. Reserved on: 30.06.2010. Decided on: 29.09.2010. _____________________________________________________ Laxmi Nand Sharma. …Petitioner. -Versus- State of H.P. and another. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioner. : Mr. Dilip Sharma, Advocate. For the respondents. : Mr. P.M. Negi, Deputy Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Material facts necessary for adjudication of this petition are that the petitioner was appointed as Steno-Typist in the respondent-department on 12.12.1977. He was subsequently promoted as Senior Assistant w.e.f. 01.01.1986. He submitted an application seeking retirement on medical grounds on 20.02.2001. In sequel thereto, the respondent No. 2, i.e., Director General of Police, H.P. sent an intimation to C.M.O., D.D.U. Hospital, Shimla to constitute a Medical Board to examine the petitioner. The petitioner appeared before the Medical Board on 15.05.2001. He was referred to Psychiatrist in I.G.M.C. for expert opinion. He was examined by the Psychiatrist in I.G.M.C., who found that there was “no mental disorder, no psychotropic needed”. The Senior Medical Superintendent, I.G.M.C. reported to the Medical 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. Superintendent, D.D.U. Hospital, Shimla on 17.05.2001 that the petitioner was fit for discharging his duties from psychiatric point of view. The opinion of Psychiatrist of I.G.M.C. has been placed on record by the petitioner as Annexure A-5. Vide letter dated 23.06.2001, the Medical Superintendent, D.D.U. Hospital forwarded the report to respondent No. 2. The opinion of the Medical Board, dated 30.05.2001 is Annexure A-7. Petitioner made a representation against the report on 20.07.2001. The gist of the representation made by the petitioner was that the documents pertaining to his Ayurvedic treatment were not taken into consideration. On 08.11.2001, the Director of Health Services wrote to C.M.O./M.S., D.D.U. Hospital, Shimla to constitute a Medical Board for examining the petitioner. The respondent No. 2 was informed by M.S., D.D.U. Hospital, Shimla on 24.12.2001 that no Neurologist or Ayurvedic Medical Officer was available in D.D.U. Hospital or in I.G.M.C., Shimla. Vide letter dated 08.01.2002, the copy of Medical Report, dated 24.12.2001 was forwarded to respondent No. 2. According to this report, the petitioner was found fit for the job. Vide letter dated 17.04.2002, the representation dated 10.07.2002, submitted by the petitioner, was forwarded by respondent No. 2 to the Director Ayurveda for constituting Board of Neurologists for his medical examination. He was examined by the Medical Board constituted at Regional Ayurvedic Hospital, Shimla. The Medical Board issued a certificate on 10.07.2002 (Annexure A-15), according to which, the petitioner was completely and permanently incapacitated to continue with his job. Text of the certificate Annexure A-15 reads thus: “Certified that we the member of Board have carefully examined Sh. Laxmi Nand Sharma S/O Sh. Hem Chand Sharma, whose signature is given below working in the Department of Director General of Police Shimla. His age by appearance is 52 years and found that he is suffering from KAMPVATA and SANAYUDAURVALYA which makes him completely and permanently incapacitate to continue with his present job.” 2. On 25.07.2002, the petitioner was informed by respondent No. 2 that since he has been declared completely and permanently incapacitated to continue with his job, therefore, he was required to apply for leave and to proceed on leave with immediate effect as per Rule 2 (2) of the Central Civil Services (Medical Examination) Rules, 1957. He was also apprised that the matter regarding his unfitness for Government job was being referred to the Commissioner-Cum-Secretary (Health & family Welfare), Government of H.P., in view of different medical opinions and further action would be initiated on hearing the authorities concerned. Petitioner brought to the notice of respondent No. 2 on 26.07.2002 that the C.C.S. Rules quoted in the memorandum dated 25.07.2002 were not applicable in his case and he must be apprised with respect to the kind of leave to be applied by him and the date of commencement of leave etc.. Petitioner was informed on 14.08.2007 that he could not be put to any government duty and he has been treated on leave w.e.f. 25.07.2002. He was further informed that the matter has been referred to Government vide letter dated 25.07.2002 to constitute a higher medical board to examine him and to finalize his case for retirement on medical grounds. In these circumstances, neither the petitioner was retired prematurely nor was he admitted to invalid pension as per opinion of the Medical Board. He approached the erstwhile learned Himachal Pradesh Administrative Tribunal by way of O.A. No. 863 of 2003 for the redressal of his grievance. The same was disposed of 21.04.2005. The order dated 21.04.2005 reads thus: “The learned Deputy Advocate General has produced a letter issued by the Director General of Police, Himachal Pradesh dated April 20, 2005 vide which it has submitted that the respondents are ready to retire the applicant pre-maturely, provided the applicant submits his willingness within three days. The applicant is present in person alongwith the learned counsel for the applicant Shri L.N. Sharma. In view of this position, the applicant is directed to give his willingness to the Director General of Police, Himachal Pradesh within a period of three days and the Director General of Police is directed to retire the applicant as per letter dated April 20, 2005 referred to above. The Director General of Police is further directed to release all the dues to the applicant within a period of six weeks from the receipt of this order as per rules. Original application stands finally disposed of.” 3. The respondent No. 2 informed the petitioner on 06.05.2005 that he has been directed to give his willingness for voluntary/pre-mature retirement, whereas he has applied for pre- mature retirement on medical grounds. He was again called upon to give notice for voluntary retirement under Rule 48-A of CCS (Pension) Rules for taking further action. On 07.05.2005, petitioner informed the respondents that he had already submitted his willingness for premature retirement. However, fact of the matter is that vide office order dated 30.05.2005, the petitioner was allowed to be voluntarily retired w.e.f. 31.05.2005. Vide order dated 07.06.2005, the petitioner was granted earned leave of 54 days and extraordinary leave of 942 days on medical grounds. He submitted a detailed representation on 13.06.2005 (Annexure A-26) that order of premature retirement dated 30.05.2005 be amended to premature retirement on medical grounds in view of memorandum dated 25.07.2002 and medical report of Senior Medical Superintendent, D.D.U. Hospital, Shimla, dated 20.11.2004, whereby it was stated that Medical Board constituted at R.A.H., Shimla had declared the petitioner unfit to continue in service w.e.f. 25.07.2002. Petitioner was informed on 02.09.2005 that order dated 30.05.2005, Annexure A-24 has been issued as per the judgment of the learned Tribunal dated 21.04.2004. Petitioner served a legal notice on the respondents on 28.05.2006. He has sought modification of order dated 30.05.2005, Annexure A-24 and to issue a revised order of premature retirement on expiry of three months notice on 16.12.2002 and allow arrears of pension to him from 16.03.2002 to 31.05.2002 with interest on delayed payments. Petitioner received the reply to the legal notice on 24.08.2006 alongwith letter of the Secretary (Home), Government of H.P., dated 03.02.2003, whereby certificate dated 10.07.2002, issued by Ayurvedic Doctors was termed as “seems to be invalid”. It is in these circumstances, the petitioner has approached the Court for the redressal of his grievance. 4. Mr. Dilip Sharma, learned counsel for the petitioner has strenuously argued that the petitioner has submitted application to seek premature retirement on medical grounds as per letter dated 20.02.2001 and 21.04.2005 (Annexure A-21). He then contended that the petitioner was examined by the Medical Board constituted at Regional Ayurvedic Hospital, Shimla and a certificate was issued on 10.07.2002, according to which, he was completely and permanently incapacitated to continue with his job. He further contended that his client was required to be prematurely retired on medical grounds in view of memo. dated 25.07.2002 and medical report dated 20.11.2004. 5. Mr. P.M. Negi, learned Deputy Advocate General has supported the issuance of Annexure A-24, dated 30.05.2005. 6. I have heard the learned counsel for the parties and gone through the pleadings carefully. 7. Petitioner has submitted an application seeking retirement on medical grounds on 20.02.2001. The Medical Board was constituted by the C.M.O., DDU Hospital, Shimla. The Medical Board examined the petitioner on 15.05.2001. He was found fit for his job from psychiatric point of view and it was opined that he did not require any psychotropics. Petitioner was examined by the Medical Board constituted at Regional Ayurvedic Hospital, Shimla vide Annexure A-15, the contents whereof have already been reproduced hereinabove. He was declared to be completely and permanently incapacitated to continue with his job. It is in these circumstances, the petitioner was informed to apply for leave and to proceed on leave with immediate effect as per Rule 2 (2) of the Central Civil Services (Medical Examination) Rules, 1957 (Annexure A-30) on 25.07.2002. He was also informed that the matter has been referred to the Government vide letter dated 25.07.2002 to constitute a higher Medical Board to examine him and to finalize his case for retirement on medical grounds. He had approached the erstwhile learned Himachal Pradesh Administrative Tribunal by filing the Original Application No. 863 of 2003. It was represented by the Deputy Advocate General before the learned Tribunal that the respondents were ready to retire the petitioner prematurely, if he submitted his willingness within three months. Petitioner submitted his willingness for premature retirement on medical grounds on 21.04.2005 (Annexure A-20). However, the respondents instead of prematurely retiring the petitioner on medical grounds, have been insisting upon the petitioner to seek voluntary retirement by submitting notice under Rule 48-A of CCS (Pension) Rules. He was retired on 31.05.2005 after waiving notice period of three months. Petitioner was found completely and permanently incapacitated to continue with his job as per Annexure A-15, dated 10.07.2002. 8. It will be apt at this stage to take note of Central Civil Services (Medical Examination) Rules, 1957, Rule 2 whereof provides that where the competent authority has reason to believe that a Government servant to whom these rules apply is suffering from (a) a contagious disease, or (b) a physical or mental disability which in its opinion interferes with the efficient discharge of his duties, that authority may direct the Government servant to undergo a medical examination within such period not exceeding one month as may be specified by it and may, if it considers it essential to do so, also direct the Government servant to proceed on leave forthwith pending medical examination. On the basis of the opinion expressed by the examining medical authority and subject to the provisions of sub-rule (3), the competent authority may require the Government servant to proceed on leave or, if he is already on leave to continue to remain on leave or may retire him from service if he is a permanent Government servant, or may terminate his services if he is a quasi-permanent Government servant. It is further stipulated in Rule 3 that a Government servant who has retired from service under Sub-rule (2) of Rule 2 may be granted such invalid pension, gratuity or Provident Fund benefits as may be admissible to him under the rules applicable to him on the date of such retirement. Thereafter, the procedure prescribed under Rule-5 is to be complied with. Rule-38 of CCS (Pension) Rules deals with invalid pension. It is stipulated therein that the 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. A Government servant applying for an invalid pension is required to submit a medical certificate of incapacity from the medical authorities, mentioned in the rules. Petitioner’s incapacity to work has been opined by the Medical Board as per Annexure A-15. This certificate was with the respondent-department. The respondent- department was required to consider the case of the petitioner for premature retirement on medical grounds. The respondents in a very very arbitrary manner, have voluntarily retired the petitioner by invoking Rule 48-A of the CCS (Pension) Rules instead of considering the case of the petitioner for pre-mature retirement on medical grounds. The respondent-State has also gone against the order dated 21.04.2005, passed by the learned Tribunal in O.A. No. 863 of 2003. It was not fair on the part of the respondent- State to retire the petitioner voluntarily instead of permitting him prematurely retired on medical grounds or premature retirement. The certificate issued by the Ayurvedic doctor could not be declared invalid by the Secretary (Home) in communication dated 03.02.2003. 9. Accordingly, in view of the observations made hereinabove, the petition is allowed. Annexure A-24, dated 30.05.2005 is quashed and set aside. Petitioner shall be deemed to have pre-maturely retired on medical ground with effect from 30.05.2005 with all consequential benefits, including the benefit of Rule 39(a) of the CCS (Pension) Rules, 1971. The period between 25.07.2002 to 31.05.2005 shall be treated on duty for all intents and purposes. Needful be done within a period of two months after the production of certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma) Judge September 29, 2010. (bhupender)