1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.6981/1997 Const. Hari Singh vs. The Union of India & Ors. Date of order : 23/3/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri R.S. Bhadauria for the petitioner. Shri Ganesh Sharma for the respondents. ****** Heard the learned counsel for the parties. This writ petition was filed by the petitioner with the prayer that the respondents be directed to grant him invalid pension because he was medically boarded out from service with effect from 7.10.1976 after rendering 10 years, 2 months and 9 days satisfactory service with the respondents in Border Security Force. It is contended that the Medical Board in its proceedings clearly held that it was an old case of gun shot injury in the right hand involving thumb which was imputed and reconstruction surgery has been done, but grip of that hand is not possible, therefore, he is fit for duties, which involve left hand only. Learned counsel 2 cited the judgement of this Court in Harphool Singh (Deceased) through L.Rs. vs. UOI & Anr.-2004 (4) WLC (Raj.) 261 in support of his arguments and argued that the controversy is squarely covered by this judgement. The respondents have contested the claim of the petitioner by stating that the injury, which caused to the petitioner was result of his own mishandling of loaded gun while he was at home. It is further submitted that petitioner did not complete 10 years, 2 months and 9 days satisfactory service, in fact he had done 10 months and 23 days of boys service and 373 days was extra ordinary leave, which was not counted for the purpose of pension. It is argued that petitioner is not entitled to get any pensionary benefits as where a government servant is medically boarded out, has less than 10 years of qualifying service, he is not entitled to pension, but he will only be eligible to get service gratuity as per Rule 49 of the CCS (Pension) Rules, 1972 at the rate of half months emoluments for every completed six months period of qualifying 3 service. The controversy raised in this matter is squarely covered by judgement of this Court in Harphool Singh, supra. In that judgement it was held that since BSR Rules of 1969 do not provide for invalid pension / family pension, the provisions contained in CCS (Pension) Rules, 1972 were made applicable to the BSF. Rule 38 of the Rules of 1972 was applicable for the purpose of invalid pension which is reproduced hereunder: “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 other medical authority namely:- (a) A Medical Board in the case of a Gazetted Government servant and a non- Gazetted Government servant whose pay, as defined in Rule 9(21) of the Fundamental Rules, exceeds seven hundred and fifty rupees per mensem; (b)Civil Surgeon or a District Medical Officer or Medical Officer of equivalent status in other cases. (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 4 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.” It was held that for the purpose of granting invalid pension a government servant should have been retired form the service on the ground of physical unfitness. It is not at all necessary that he should serve at least for a minimum period of ten years. Since the petitioner was boarded out of service on the recommendation of Medical Board, he was entitled to invalid pension in view of Rule 38 supra. In the result, this writ petition is allowed. The petitioner is held entitled to invalid pension from the date of his discharge. The arrears shall be paid to him with interest @ 9% per annum within three months from the date copy of this order is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/