Case: Union Of India  Vs. Bashirbhai R. Khiliji

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 b 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 woman 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 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." Rule 39 deals with compensation pension. Rule 40 deals with compulsory retirement pension. Rule 41 deals with compassionate allowance. These are various kinds of pensions admissible to Government servants. Chapter VII deals with regulation of amounts of pensions. This chapter deals with how the amount to be determined after putting in qualifying service. Rule 48 deals with retirement on completion of 30 years qualifying service. Rule 48A deals with retirement on completion of 20 years qualifying service. Rule 49 which is relevant for our purpose, reads as under: "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 months 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 les than thirty-three years, the amount of pension shall be calculated at fifty per cent of average emoluments, subject to a maximum of four thousand and five hundred rupees per mensem.(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. 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 () or Clause (b) of sub-rule, 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) & (6) Deleted." We are presently concerned with two provisions of the Rules i.e. Rule 38 and Rule 49. Rule 38, as reproduced above, contemplates the invalid pension. The procedure has been mentioned therein i.e. in case an incumbent retires from service on account of bodily or mental infirmity which permanently incapacitated him for the service, then a medical certificate of incapacity shall be given by the concerned authorities and in particular form No.23 the same may be applied before the competent authority. It is true that the qualifying service is not mentioned in Rule 38 but Rule 49 which deals with the amount of pension stipulates that 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 months emoluments for every completed six monthly period of qualifying service. Therefore, the minimum qualifying service of ten years is mentioned in Rule 49. The word qualifying service has been defined in Rule 2(q) of the Rules which reads as under: "(q) Qualifying Service means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules;" Therefore, the minimum qualifying service which is required for the pension as mentioned in Rule 49, is ten years. The qualifying service has been explained in various memos issued by the Government of India from time to time. But Rule 49 read with Rule 38 makes it clear that qualifying service of pension is ten years and therefore, gratuity is determined after completion of qualifying service of ten years. Therefore, for grant of any kind of pension one has to put in the minimum of ten years of qualifying service. The respondent in the present case, does not have the minimum qualifying service. Therefore, the authorities declined to grant him the invalid pension. But the amount of gratuity has been determined and the same was paid to him. 4. We feel that this is little harsh that an incumbent while discharging his onerous duties became completely deaf. Therefore, the respondent should have been adequately compensated for that. A sum of Rs.1000/- per month has already been granted to him from the Risk Fund which is specially reserved for such contingency. So far as the pension is concerned, as he has not put in ten years of minimum qualifying service, it would not be admissible to him. However, a sum of Rs.22,231/- which has been paid to him during the medical treatment, shall not be recovered from him.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]There is no two opinion in the matter the respondent while serving at height has suffered 100 per cent invalidity. He has already been granted Rs.1000/per month out of the risk fund which is specially reserved for such disability. But so far as the question of granting invalid pension is concerned, that cannot be considered though it may be harsh, as per the scheme of the Pension Rules. The respondent being a constable in the Central Reserve Police Force is governed by the Central Reserve Police Force Act, 1949 and Central Reserve Police Force Rules,We feel that this is little harsh that an incumbent while discharging his onerous duties became completely deaf. Therefore, the respondent should have been adequately compensated for that. A sum of Rs.1000/per month has already been granted to him from the Risk Fund which is specially reserved for such contingency. So far as the pension is concerned, as he has not put in ten years of minimum qualifying service, it would not be admissible to him. However, a sum of Rs.22,231/which has been paid to him during the medical treatment, shall not be recovered from him.