Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. CWP No. : 4328 of 2011 Date of Decision : 15.11. 2011. Smt. Kailasi Devi …..Petitioner. Versus State of H.P. and others. …..Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes For the petitioner : Mr. R.S. Kanwar, Advocate. For the respondents : Mr. A.K. Bansal, Addl. Advocate General for the respondents. Surinder Singh, J. (Oral): The petitioner Kailasi Devi is the widow of late Sh. Heeru Ram. Heerau Ram was initially engaged on 01.01.1984 as daily waged Beldar in the respondent- Department. He worked as such w.e.f. 01.01.1984 till 31.12.1993, thereafter given Work Charged status on 31.1.1995 w.e.f. 1.1.1994. He was boarded out on medical grounds as the Medical Board declared him completely and permanently incapacitated for further service of any kind in the respondent-Department. Thus, on the recommendations of the Medical Board, - 2 - Zonal Hospital, Mandi, he was retired w.e.f. 31.01.2002 (A.N.), but was not accorded invalid pension and ultimately died on 23rd January, 2004. Despite the various communications made by the petitioner his widow, the respondents neither released the invalid pension of her husband nor granted family pension to her. Hence, the present petition. 2. The respondents vide their reply took the stand that Heerau Ram was retired because of invalidation w.e.f. 31.01.2002 after rendering 8 years and one month regular service, which is less than 10 years. Hence, as per Rules 38 and 49 of the C.C.S. (Pension) Rules, 1972, neither he nor his widow-petitioner is entitled for any pension. 3. Heard and gone through the record. 4. Rule 38 of the C.C.S. (Pension) Rules, 1972, in short “the pension rules”, 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 - 3 - 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 by 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. Note 2.- A lady doctor shall be included as a member of the Medical Board when a women 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 fit 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. (5) Deleted”. 5. Whereas, Rule 49 of the said Rule provides as under:- “49. Amount of Pension [(1) In the case of a Government servant retiring in accordance with the provisions of these - 4 - 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 less than thirty-three years, the amount of pension shall be calculated at fifty percent of average emoluments, subject to a maximum of four thousand and five hundred rupees per mensum.]; *(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; (c ) 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 (a) or Clause (b) of sub-rule (2), 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) } Delete .” (6) - 5 - 6. From the conjoint reading of the rules aforesaid, it is manifest that so far as the invalid pension is concerned, no period of service has been prescribed under the rules. Rule 49 quoted above relates to the regular pension of the employees and does not deal with the invalid pension. Therefore, irrespective of the service rendered, the husband of the petitioner was entitled for the invalid pension under Rule 38 ibid and after his death the petitioner being his widow became entitled to the family pension. To support my view, I place my reliance on the judgment passed by the Division Bench of Punjab and Haryana High Court in Sukhpal Kaur Vs. Union of India and others, 2008 (4) SLR, 312. 7. In view of the aforesaid decision, order Annexure-12 is hereby quashed and set aside. The respondents are hereby directed to release the invalid pension of Sh. Heeru Ram, from the date of his retirement till date of death i.e. 23.01.2004 to his widow, petitioner kailasi Devi and thereafter family pension to her w.e.f. February, 2004 onwards in accordance with rules within a period of three months from the production of the certified copy of this judgment to the - 6 - respondents, failing which it shall carry an interest @ 12% per annum from the date it fell due. 8. The petition stands disposed of in the above terms so also the application, if any. 15th November, 2011. (Surinder Singh), k.sharma Judge.