Delhi High Court
Suresh Kumar Tiwari vs Union Of India And Ors on 27 July, 2012
Author: Gita Mittal
12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C)No.7905/2011
% Date of decision: 27th July, 2012
SURESH KUMAR TIWARI ..... Petitioner
Through : Ms. Monica Kapoor, Adv.
versus
UNION OF INDIA AND ORS ..... Respondents
Through : Mr. R.V. Sinha, Adv.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The petitioner in the instant case seeks grant of disability
pension under CCS (Pension) Rules.
2. The brief facts giving rise to instant petition are in narrow
compass and are undisputed.
3. The petitioner was appointed as a Constable on 29 th May,
1990. While in service, he was diagnosed as suffering with
avasacular necrosis of head of left femur in the year 1998. On
this condition, while the petitioner was posted at Lunglei,
Mizoram, a medical board was held on 5th October, 2001 which
declared him unfit for hard duties but fit for carrying out
sedentary work. However, by an order dated 9th October,
2001, the respondents compulsorily retired the petitioner from
service. The respondents also did not favourably consider the
petitioner‟s representation dated 10 th October, 2001 wherein
the petitioner requested for assigning him light duties instead
of retiring him from service.
4. It appears that the petitioner had to approach the court
on three prior occasions for seeking his entitlements. The first
petition being W.P.(C)No.552/2002 was filed seeking
assignment of lighter duties. This writ petition was disposed of
by the order passed on 15th October, 2004 directing payment
of salary.
5. The petitioner‟s request by the letter dated 29 th
November, 2004 for disability pension was rejected by the
respondents on 16th November, 2006. It is noteworthy that
despite the invalidation of the petitioner on medical grounds,
the respondents had issued him a discharge certificate
assessing his percentage of disability as nil. The petitioner
was again required to approach this court by way of a second
petition being W.P.(C)No.8924/2008. This writ petition was
again allowed by the court by an order dated 17 th December,
2008 whereby the court held that the discharge certificate
issued by the respondents did not appear to be correct in view
of the reasons for his invalidation and the respondents were
required to reconsider the issue of percentage of disability of
the petitioner for issuance of appropriate certificate.
6. Pursuant to these orders, the medical board of the
petitioner was conducted on 18th April, 2009 which found his
disability to be at 40%. However, he was not given the copy of
the board proceedings necessitating a third writ petition being
W.P.(C)No.3275/2010. This writ petition was disposed of by an
order dated 5th April, 2011 directing the respondents to furnish
a copy of the findings of the medical board. The respondents
thereafter had provided the proceedings of the medical board
with their memorandum dated 28th April, 2011.
7. As per the recommendations of the Medical Board of the
petitioner, the disability of the petitioner was contracted in his
service. It has further been opined that the disability was
attributable to the condition of service. The Medical Board has
also held that the disability was directly attributable to the
service and assessed the percentage of disability as 40%.
8. The respondents have rejected the petitioner‟s claim for
grant of disability pension on the specious ground that his
disability is not attributable to service. This is the stand taken
in the counter affidavit before us which is completely
untenable in the face of the proceedings of the medical board
which has held that the disability of the petitioner is directly
attributable to his service.
9. Learned counsel for the respondents submits that the
disability of the petitioner would be covered under Category „A‟
of the Government of India‟s Decisions in the CCS
(Extraordinary Pension) Rules which stipulates as follows:-
"Category 'A' Death or disability due to natural
causes not attributable to
Government service. Examples
would be chronic ailments like
heart and renal diseases
prolonged illness, accidents while
not on duty etc."
10. Learned counsel for the petitioner draws our attention to
Category „B‟ of the said Rules which directs as follows:-
"Category 'B' Death or disability due to causes
which are accepted as
attributable to or aggravated by
Government service. Diseases
contracted because of continued
exposure to a hostile work
environment, subjected to
extreme weather conditions or
occupational hazards resulting in
death or disability would be
examples."
11. As observed hereinabove, the opinion of the medical
board binds the respondents and it is not open to the persons
considering grant of the pension to hold to the contrary.
12. In the instant case, the medical board has specifically
found the disability of the petitioner attributable to the
government service. The assertion by the respondents to the
effect that the case of the petitioner falls under Category „A‟
under the CCS (Extraordinary Pension) Rules is, therefore,
completely misconceived.
13. Given the opinion and recommendations of the medical
board of the petitioner, we hold that the case of the petitioner
would fall under Category „B‟ and he is entitled to grant of
disability pension in accordance with the CCS (Extraordinary
Pension) Rules.
14. The petitioner has stated in the writ petition that the
original discharge certificate which was issued to him was not
stamped. When the same was returned for stamping, again
the respondents returned a photocopy of the stamped
discharged certificate. The petitioner has till date not received
the original discharge certificate. The petitioner also lays a
claim to the entitlement of the staff benevolent fund with all
the benefits of disability thereon as well as for the payment of
the amount under Central Government Insurance Scheme
(CGIS). It has been urged that the petitioner has been paid
only the employee‟s contribution component of the said
insurance.
15. The respondents have claimed that they have sent the
discharge certificate to the petitioner by a special messenger.
Learned counsel for the petitioner points out that only a
photocopy of the discharge certificate was received. The
petitioner had duly endorsed on the receipt itself that only a
photocopy had been received. The prayer made by the
petitioner for the original discharge certificate, therefore,
appears to be justified.
16. In view of the above, we direct as follows:-
(i) The respondents shall compute the extraordinary pension
to which the petitioner would be entitled in accordance with
the CCS (Extraordinary Pension) Rules within a period of 12
weeks from today.
(ii) The assessment of the amount to which the petitioner is
entitled would be communicated to him immediately upon
assessment thereof.
(iii) The respondents shall effect the payment of the amounts
to which the petitioner is found entitled within a further period
of four weeks of passing of the order.
(iv) The respondents shall also compute the entitlement of
the petitioner under the Central Government Insurance
Scheme (CGIS) and the staff benevolent fund with the benefits
of disability thereon to which the petitioner was entitled within
a period of 12 weeks from today and shall be paid to the
petitioner within further period of four weeks of such
computation.
(v) The respondents shall ensure that the original discharge
certificate duly stamped is delivered to the petitioner within a
period of 12 weeks from today.
(vi) This is the fourth writ petition which has been
necessitated. The petitioner shall be entitled to costs of the
writ petition which are assessed at `20,000/- and shall be paid
to the petitioner within a period of 12 weeks from today.
The writ petition is allowed in the above terms.
Dasti.
GITA MITTAL, J
J.R. MIDHA, J
JULY 27, 2012
aj
