IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No.08 of 2011 With Delay Condonation Application No.570 of 2011 Union of India & another … Appellants Versus Gokaran Singh S/o Prem Singh Mehta … Respondent Mr. Ajay Singh Bisht, Standing Counsel for the Union of India/appellants Mr. D.S. Mehta, Advocate for the respondent/petitioner Dated: July 5, 2011 Coram Hon’ble Barin Ghosh, C.J. Hon’ble Servesh Kumar Gupta, J. Barin Ghosh, C.J. (Oral) We have considered the averments made in the application and being satisfied that sufficient grounds have been furnished for the delay in filing the appeal, we allow the application for condonation of delay. 2. On 22.2.1988, the respondent-writ petitioner was enrolled as a member of the Indo Tibetan Border Police Force. The Central Reserve Police Force Act, 1949 and the Rules framed thereunder were applicable to Indo Tibetan Border Police Force during the relevant period. On 22.8.1990, a Medical Board, upon examination of the respondent-petitioner, found that he is unfit for the work for which he was appointed but he is fit for being accommodated on a lower post. It does not appear, since there is no pleading, whether any consent of the respondent-petitioner was taken for accommodating him in a lower post. Be that as it may, on 3.8.1991, petitioner- respondent was discharged holding out that there is no lower post available in which the petitioner-respondent can be accommodated. Against the said decision, petitioner- respondent approached the Hon’ble Allahabad High Court. 2 The writ petition was dismissed. Against the order of dismissal, petitioner-respondent filed an appeal and the same was ultimately disposed of by permitting the petitioner- respondent to make a representation for invalid pension with a direction upon the appropriate authority to decide the said representation in accordance with law. Petitioner, accordingly, made a representation and the said representation has been rejected holding out that the respondent-petitioner has not rendered minimum service, as contemplated in the Central Civil Services (Pension) Rules, 1972 and that the petitioner- respondent was not a permanent employee of the Central Government. Being aggrieved thereby, petitioner reapproached this Court by filing a fresh writ petition. That writ petition has been allowed principally holding that Rule 38 of the said Rules, which deals with invalid pension, does not contemplate that an employee, who is entitled to such pension, must serve the Central Government for an earmarked minimum period. It has further been held that Clause 4 of Rule 38 of the said Rules directs admission of invalid pension to a person, who cannot be accommodated in a lower post, despite finding of the medical authority that he is capable of discharging duties attached to such lower post and the same being a beneficial legislation, should be read in such a manner so as to make available the benefits of the legislation to the extent possible. 3. In the present appeal, appellant is contending that the said Rules had no application to the petitioner-respondent. It is being contended that in terms of Rule 16 of the Central Reserve Police Force Rules, 1955, petitioner was enrolled for a period of three years. It was contended that at the end of the said three years period, petitioner-respondent was not given quasi permanency under the provisions of the Central Civil Services (Temporary Service) Rules, 1965 and, accordingly, petitioner-respondent remained a temporary government employee until he was discharged. It was contended that 3 since the petitioner-respondent, at the time of his discharge, was a temporary government employee and had not acquired the status of quasi permanency, the Central Civil Service (Pension) Rules, 1972 did not apply to the respondent- petitioner. It is the contention of the respondent-petitioner that the Central Civil Services (Pension) Rules, 1972 applies also to temporary government employees, which status the respondent-petitioner acquired by continuing to serve even after completion of three years of enrollment, though he did not get quasi permanency under the provisions of the Central Civil Services (Temporary Service) Rules, 1965. 4. Central Civil Services (Pension) Rules, 1972 applies to government servants, including civilian government servants in the defence services, appointed substantively to civil services and posts in connection with the affairs of the Union which are born on pensionable establishments. There cannot be any dispute that Indo Tibetan Border Police Force is one of the pensionable establishments of the Union of India. There is no dispute that the respondent-petitioner was enrolled in the said establishment, worked for three years there and thereupon since quasi permanency was not given to him, he continued to remain as a temporary government employee of the Union of India, until he was discharged. In the circumstances, the question is can it be said that the respondent-petitioner was substantively appointed to a civil service or to a post, in connection with the affairs of the Union of India. ‘Substantive appointment’ is no doubt not permanent appointment alone, but appointments substantively to civil services and in the posts, as used in sub- rule (2) of the Central Civil Services (Pension) Rules, 1972, means civil services and the posts, which are in existence. Those may be of permanent nature or may be for temporary duration. If the appointment is to a temporary or permanent civil service or post, then the appointment can be said to be a 4 substantive appointment. There must, therefore, exist a civil service and a post in connection with the affairs of the Union of India. Rule 16 of the Central Reserve Police Force Rules, 1955, though authorizes continuation of an enrolled member of the Force, who has not been accorded quasi permanency after he remained enrolled for three years, as a temporary government employee, but does not recognize appointment in a temporary civil service and a temporary post in connection with the affairs of the Union of India. In the circumstances, the provisions of Central Civil Services (Pension) Rules, 1972 does not apply to such a person. 5. Rule 38 of the said Rules contemplates invalid pension only when a government servant has retired. Invalid pension is in addition to and not in derogation of the other pensionable benefits, which a pensioner is otherwise entitled to in terms of Central Civil Services (Pension) Rules, 1972. In the event for non-availability of a lower post, a person is retired, despite the medical authority opining that the person concerned is fit for being accommodated in a lower post, sub-rule (4) of Rule 38 of Central Civil Services (Pension) Rules, 1972 mandates that invalid pension shall be admitted to such a person. The mandate of sub-rule (4) of Rule 38 will only apply to those pensioners in respect of whom the Central Civil Services (Pension) Rules, 1972 applies and they have retired and not to a person in respect of whom the Central Civil Services (Pension) Rules, 1972 does not apply and on top of that, who has been discharged and not retired. We, accordingly, allow the appeal and set aside the judgment and order under appeal. Writ petition is dismissed. (Servesh Kumar Gupta, J.) (Barin Ghosh, C.J.) 05.07.2011 Rdang