IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No: 507 of 2007 Reserved on : 02.12.2009. Date of decision: 5.01.2010. H.P S.E.B and another …Petitioners Versus Bazar Singh …Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting?1 Yes. For the petitioners : Mr. Baldev Singh, Advocate. For the respondent: Ms. Anita Dogra vice Mr. Ramakant Sharma, Advocate. Per Deepak Gupta, J. This writ petition is directed against the order of the erstwhile H.P.State Administrative Tribunal directing the petitioner-H.P.State Electricity Board (here-in-after referred to as the Board) to give invalid/disability pension to the petitioner w.e.f.1.6.1994. Briefly stated the facts of the case are that the respondent was engaged as Beldar/T-mate on daily wage basis in construction Sub Division, HPSEB, Jassur, District Kangra on 17.3.1980. He was regularized by the respondent Board on 12.4.1989. During the year 1993-94 the respondent 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 did not keep good health and lost his eye sight. He was directed to appear before the Chief Medical Officer, Kangra, who was to determine whether the respondent was fit to remain in employment or had become permanently incapacitated from service. The Medical Board came to the conclusion and certified that the respondent had become completely and permanently incapacitated for service of any kind in the department due to his physical infirmity i.e. bilateral blindness. Keeping in view this certificate and the physical infirmity of the respondent the petitioner-Board issued a letter on 19.5.1994 retiring the applicant from service on medical grounds w.e.f. 15.4.1994. Thereafter respondent submitted various representations to the Board that he be granted invalid/disability pension but nothing was done in the matter. He then filed the original application before the Tribunal claiming that such invalid/disability pension be granted in his favour from the date of his retirement. The petitioner-Board contested the original application mainly on one short ground that the qualifying service of the applicant was less than 10 years at the time of the retirement on medical grounds and as such, he is not entitled for pension. The learned Tribunal held that in terms of Rule 49(2)(c) and Rule 54(2) of the CCS (Pension) Rules since family pension was admissible after rendering one year of service the petitioner could not be 3 denied invalid or disability pension. The Tribunal also said that this was a fit case where power of relaxation under Rule 88 of the CCS (Pension) Rules should be invoked and if there was any short fall in the service period the same should be relaxed. Aggrieved by this order the Board has filed the present writ petition. Rule 38 of the CCS Pension Rules deals with the grant of invalid pension. Only sub-rule (1) is relevant for our purpose, which reads as follows:- “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.” Sub-rule (2) to (4) only deals with the procedural aspects of grant of medical certificate and the authority entitled to grant such certificate with which we are not concerned in the present case. It would be pertinent to mention that Rule 38 which deals with invalid pension does not make any reference to minimum period of qualifying service. It only provides that if a Government servant retires from service on account of bodily or mental infirmity which permanently incapacitated him from service, invalid pension may be granted to him. The Board relies on the provisions of Rule 49 and submits that at least 10 4 years service is necessary for grant of pension. Rule 48 of the CCS (Pension) Rules deals with those employees who retire on completion of three years qualifying service. Rule 48-A deals with employees who retire on completion of 20 years qualifying service. Rule 49 with which we are concerned reads as follows:- “49. Amount of Pension: (1) 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. (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 5 than Rupees three hundred and seventy-five per mensum; (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.” Rule 49(1) deals with persons who retire before completing 10 years of qualifying service and in their case only service gratuity is payable. Rule 2(a) deals with employees who have completed 33 years of qualifying service. Rule 2(b) deals with employees who have retired after completing 10 years but less than 33 years of qualifying service and in their case the pension is less. Clause 2(c) deals with invalid pension. It provides that notwithstanding anything contained in clause (a) and (b) the amount of invalid pension shall not be less than the amount of family pension admissible under sub-rule 2 of Rule 54. On the basis of this rule it is 6 submitted that clause (a) and (b) are not applicable. This, however, will not make the sub rule (1) inapplicable. Sub rule (1) deals with qualifying service of 10 years. Rule 54 specifically deals with family pension and in the case of the death of an employee the family is entitled to pension so long as the employee has completed at least 1 year of continuous service. Rule 88 reads as follows and it gives power to the Ministry of the Department concerned to relax any of the rules for dealing with a case in a just and equitable manner. “88. 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.” In the present case, the appellant joined service as a daily waged employee on 17.3.1980. He was regularized on 12.4.1989, i.e. he completed 9 years and 25 days of service 7 as a daily waged employee. Thereafter he was regularized. The order of retirement was issued on 19.5.1994, but was made applicable from 15.4.1994. It is well settled law that retirement cannot be made from a retrospective date and therefore, the petitioner shall be deemed to be in service upto 19.5.1994. His service from 12.4.1989 to 19.5.1994 works out to 5 years, 1 month and 7 days. In State of H.P and others vs. Sarab Dayal, Latest HLJ 2007(HP) 1292 this Court held as follows:- “25. We are, therefore, of the considered view that 50% of the continuous service rendered by the employees on daily rated basis followed by work charge/regular employment should be taken into account while calculating the qualifying service for purposes of entitlement to and the amount of pension to be paid to them.” In this case, 50% of his daily waged service works out to 4 years, 6 months and 12 days. His regular service works out to 5 years, 1 month and 7 days. Therefore, the total qualifying service rendered by him is 9 years, 7 months and 19 days. Rule 38, as pointed out above, does not lay down any qualifying service. If at all the petitioner is short, he is only short by a few months. This is a fit case where relaxation should be granted under Rule 88. While taking this view we are guided by the provision of the Persons with Disabilities 8 (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. India was a signatory to the proclamation of the Full Participation and Equality of People with Disabilities in the Asian and the Pacific Region Covenant. On the basis of this covenant the aforesaid act was introduced in Parliament and became the law of the land. Section 47 lays down that no establishment shall dispense with or reduce in rank any employee who acquires disability during his service. Section 47 of the Act reads as follows:- “47. Non-discrimination in Government employment.- (1) No establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such 9 notification, exempt any establishment from the provisions of this section.” A bare reading of Section 47 shows that after the said Act came into force service of an employee cannot be dispensed with nor can he be reduced in rank only on account of disability which he has acquired during service. In fact, no such employee can be retired and if necessary a supernumerary post has to be created till the said employee attains the age of superannuation. No doubt, the said provision may not be attracted in the present case since the appellant retired in the year 19.5.1994 and the Act came into force on 7.2.1996. However, keeping in view the laudable objects of the Act and also the fact that Rule 38 does not clearly lay down any minimum period of qualifying service, the short fall of a few months in the case of the petitioner should be condoned. In view of the above discussion, the writ petition is dismissed. No order as to costs. ( Deepak Gupta ), J. 5th January, 2010 ( V.K.Ahuja), J. ™