Delhi High Court

Roshan Lal vs Uoi And Ors on 15 July, 2022

$~16
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 15.07.2022

+      W.P.(C) 3884/2010
       ROSHAN LAL                                      ..... Petitioner
                         Through:     Mr.S.K. Anand, Advocate

                                Versus

       UOI AND ORS                                      ..... Respondents
                         Through:     Mr.Dev P. Bhardwaj, CGSC with
                                      Ms.Anubha Bhardwaj & Mr.Sarthak
                                      Anand, Advs. for UOI.

       CORAM:

       HON'BLE MR. JUSTICE SURESH KUMAR KAIT
       HON'BLE MR. JUSTICE SAURABH BANERJEE

                         J U D G M E N T (oral)

CM APPLN. 33289/2021 (u/S 151 by the petitioner) & CM APPL. 30887/2022 (u/S 151 CPC by respondents No.1,2,4,5 & 7) & W.P.(C) 3884/2010

1. Today, the above captioned first application has been listed for

hearing whereby petitioner has prayed for a direction to respondents to grant

him disability pension under the provisions of CCS (Extra Ordinary

Pensions) Rules and OM No. 45/22/97P&PW (C) dated 03.02.2000, in place

of invalid pension and also to grant interest @ 15 % from the date of

invalidation i.e. 15.07.1993 till date of payment to the petitioner.

2. Pertinently, the subject petition has been filed seeking a writ of

mandamus directing the respondents No. 2,5 and 7 to release invalid pension

to the petitioner; to release the admissible benefits as are released to the

incumbent who are sent out of service on medical grounds for the injuries

sustained during duty; and to examine the possibility of granting disability

pension to the petitioner. However, by virtue of CM APPLN. 33289/2021,

the petitioner has in fact sought to amend the prayers and relief made in the

main petition.

3. On 04.04.2022 when this application came up for hearing, learned

Central Government Standing Counsel (CGSC) appearing on behalf of

respondents submitted that the respondents have decided to release the

invalid pension to the petitioner w.e.f. 15.07.1993 and final decision shall be

taken before the next date. On the next date of hearing i.e. 10.05.2022,

learned CGSC had informed that the final decision is yet to be taken on

release of invalid pension to the petitioner.

4. However, on 11.07.2022, above cpationed second application CM

APPLN. 30887/2022 was filed on behalf of respondents No.1,2,4,5 & 7,

which has come up for hearing today, whereby respondents are seeking to

withdraw the statement made before this Court on 04.04.2022 by learned

CGSC appearing on their behalf that the "respondents have decide to release

the invalid pension to the petitioner and final decision thereon shall be

taken" on the ground that the case of petitioner for consideration of invalid

pension is neither covered under the CCS (Pension) Rule, 1972 nor CCS

(EOP) Rule, 1939. Respondents have also prayed for consideration of the

case on merits.

5. During the course of hearing in these applications, this Court is of the

opinion that the issues raised in these applications pertain to the subject

matter of this petition and to arrive at a just decision, it would be appropriate

to decide these applications along with the petition itself in view of

contentions raised in the petition; counter affidavit and the applications filed

on behalf of respondents.

6. The brief facts, giving rise to the present petition are that on

13.04.1988, the petitioner was selected as Constable in Central Reserve

Police Force (CRPF) and after completing his basic training at CRPF Group

Centre, Bhubaneshwar, Orissa, he was posted at 39 Bn. CRPF, Imphal

(Manipur) and was later shifted to Delhi in 1990.

7. Pursuant to a proposal floated by the respondent No.3, petitioner

showed his willingness to apply and was selected in respondent No.3-

National Security Guard (NSG) and was relieved from the services of CRPF

on 10.10.1991.

8. It is averred in the petition that the person who performs the duty as

Commando is always exposed to the quality of smartness, punctuality,

efficiency and other commendable skills which are always a part of the

better achievement for a soldier. Further averred that a person who joins the

organization of respondent No.3 for performing the Commando duty, is

always subjected to the regular refreshment course and such capsule courses

are being run only with the motive to keep the soldier more attentive and

efficient all the times so that during any insurgency operation, such soldier

should not face the defeat and no harm should be caused to the VIPs. In the

year 1992, while attending one of the exercise as part of the course, the

petitioner fell and sustained serious mental injuries and was under treatment

and so, respondent No.3 did not find it feasible to continue petitioner on

deputation with it.

9. According to petitioner, he was fit at the time of joining the

respondent No.3- organization for deputation. Unfortunately, the other

respondents, especially the parent department of the petitioner did not take

the slight pain to find out the reasons of the petitioner becoming

incapacitated. In fact neither a discrete inquiry to find out the actual loss

sustained by petitioner nor any Court of Inquiry was conducted by the other

respondents. Thereafter, petitioner has claimed to have undergone indoor

and outdoor treatment during the period from 20.01.1993 to 04.02.1993 and

02.04.1993 till 20.04.1993. Thereafter, petitioner received a communication

dated 16.06.1993 from respondent No.7-Commandant, CRPF intimating that

he was declared unfit by the Medical Board and so, the petitioner was

invalidated from service w.e.f. 15.07.1993.

10. It is the case of petitioner that he is not aware till date as to when he

was sent for medical board and it might be that during his illness the medical

formalities would have been completed. It is claimed that the respondent

No.7 took advantage of the mental condition of the petitioner to escape from

the liabilities by dispatching him to his family in the month of July, 1993.

Thereafter, in November, 1994 petitioner was informed to complete the

papers for his provident fund. According to petitioner, he made several

requests to respondent No.5 vide communications dated 05.08.1997,

13.05.1998 and lastly on 15.10.1998 for releasing his invalid pension. In

March, 1999, petitioner claims to have received a communication dated

13.03.1999 to complete papers for his pension w.e.f. 01.01.1996 in

pursuance of the office memorandum No.45/10/98 - P&PW(A) dated

17.12.1998. Thereafter, petitioner claims to have approached the authorities

in person for grant of pension but there was no response. Thereafter,

petitioner sent a legal notice dated 21.01.2006 to respondent No.2-MHA,

who vide letter dated 12.05.2006 referred the same to the Commandant,

CRPF for action, however, no action was taken. Thereafter, petitioner again

sent a communication dated 28.01.2010 to the respondent No.2-MHA,

which was again endorsed to respondent No.3 vide communications dated

25.02.2010; 02.03.2010 and 05.03.2010. The respondent No.3 vide reply

dated 26.03.2010 informed the petitioner‟s counsel as under:-

―2. The case has been examined and it is intimated that your client had not completed 10 years qualifying service before his invalidation from the service. As such, he is not entitled for invalidation pension as per Pension Rules. Earlier it has already been intimated vide this Dte. Letter No. J.II23/2006-Wel 4 dated 31/10/06 that your client has proceeded on deputation to NSG at this own and nobody compelled him to complete the obstacles. As per medical documents available he was a patient of ―Acute Schizophrenic Psychosis' and on the same ground he was invalidated out from service. Nothing is forthcoming about his disability due to accident. He was given opportunity to submit representation against his invalidation from service. But your client in writing expressed no objection on the medical report of the board. Your contention in the legal notice that case of

your client has not been considered in positive perspective is not tenable. We would definitely like to help our men but in the instant case on examination on depth in the light of rules/ instructions on the subject and related documents, does not permit authorization of pension to your client......‖

11. According to petitioner, it is not denied that the petitioner is suffering

from „Acute Schizophrenic Psychosis‟ however, the circumstances and

reasons leading for such ailment was not scrutinized at any level. The

Petitioner had never suffered from such ailment prior to joining the services

of the respondent No.3 on deputation. It is also asserted that due to the

mental incapability condition of the petitioner, the respondents are not fair in

asking him to make a representation. It is claimed that as on the date of

petitioner‟s invalidation from service, he had rendered more than 05 years‟

service and as per rule 38 of CCS (Pension) Rules, 1972, the Petitioner is

entitled for invalid pension.

12. In the counter affidavit filed on behalf of respondent-Union of India,

it is averred that as per Rule 49 of the provision of the CCS (Pension) Rules,

1972, the petitioner is only entitled to gratuity and he has no claim for the

grant of invalidation pension since he has not put in the mandatory required

service of 10 years in the force. It is also stated that no accident had ever

occurred wherein petitioner had sustained injuries and there is no recording/

history of alleged incident in the medical records of the petitioner. It is

denied that petitioner was not given proper treatment, as it is only during his

deputation period that indication of mental illness came to light and he was

relieved from his duties w.e.f. 27.02.1992 and was posted in D/39 BN on

09.01.1993. However, he was not considered fit to work as combatant in

CRPF due to „SCHIZOPHRENIC PSYCHOSOIS‟ observed by Medical

Board held on 19.04.2003 at BH-I, CRPF, New Delhi. He was served with

notice dated 16.06.1993, in reply to which petitioner in writing stated that he

had no objection to be invalidated out on the medical report. Accordingly,

the petitioner was invalidated out from service w.e.f. 15.07.1993.

13. The respondent No.1-UOI has also averred that there was no occasion

for holding Court of Inquiry as there was neither any date of alleged incident

in the medical papers nor was he able to verify the incident. However, it is

admitted that letter dated 13.03.1999 was erroneously dispatched by the

respondent and no revision of pension was required. It is also denied that

petitioner had ever approached the office of the respondent requesting for

grant of pension.

14. In the counter affidavit filed on behalf of respondents No.3 & 6 i.e.

National Security Guard, it is averred that the issues raised in the present

petition pertain to respondents No.1, 2,4,5 & 7. However, it is not disputed

that the petitioner had joined the Commando Course, Course No. RG-25

w.e.f. 11.11.1991 to 16.02.1992 and he had reported for duty at 12 SRG on

21.04.1992. Further stated that the petitioner was brought to the M.l. Room,

12 SRG, NSG, Manesar on 25.09.1992 with the history of abnormal

behavior and was referred to a Psychiatrist and declared a „suspected case of

depression‟. Thereafter, petitioner remained hospitalized from 25.09.1992

to 05.10.1992 and was found to be suffering from severe frontal pain,

though in his medical papers, there is no mention of any injuries sustained

by him on 25.09.1992 or earlier. Petitioner was thereafter sent to Safdarjung

Hospital, New Delhi on 29.09.1992, 01.10.1992 and 03.10.1992 for medical

treatment and he was diagnosed as PSYCHOSIS. However, there are certain

misconducts to the credit of petitioner with regard to his overstay beyond the

sanctioned leaves on three occasions.

15. A perusal of record of this case shows that the present petition was

filed in the year 2010. In the year 2016, CM APPLN. 22468/2016 (under

Order VI Rule 17 of Code of Civil Procedure) seeking amendment in the

writ petition was filed by the petitioner seeking to challenge the order dated

20.04.1993, vide which he was invalidated form service. This Court on

11.07.2016 dismissed the said application in limine on the ground that it was

too late for the petitioner to challenge the invalidation order of 1993 in the

year 2016.

16. Thereafter, petitioner filed CM APPLN. 30831/2021 seeking a

direction to the respondent to state his disability as 100%. In the said

application, the petitioner averred that while he was doing daily training

exercise with task of jumping over horse obstacle, he fell down on his head

and suffered blunt injury and thereby, suffered injuries while performing his

duty. According to petitioner, the said illness and disability is attributed and

aggravated by the service. The petitioner further pleaded that he had

completed 05 years 3 months and 02 days at the time of being invalidated

from service in permanent low medical category on 15.07.1993 and so, the

respondents have under the provisions of Section 38 of CCS (Pension) Rules

1972 refused to grant invalid pension and as per O.M. No. 33/5/89-

P&P.W.(K) dated 09.04.1990 issued by Government of India, Department

of Pensions & Pensioners' Welfare, he is entitled to disability pension.

17. It is relevant to mention here that pursuant to filing of CM APPL.

30830/2019 and 30831/2019 in the present petition, respondents constituted

a Board of Medical Officers at CRPF Base Hospital, New Delhi for

assessment of percentage of disability of the petitioner and Board of Medical

officers examined the petitioner at CH, CRPF on 13.08.2019 and gave the

following opinion:

―10. That Ex-CT/GD Roshan Lai of 39 Bn, CRPF is suffering from Schizophrenia with poor response to different modalities of treatment and deteriorating course of illness since 1992. The duration of illness is 26 years with multiple relapses and deteriorating course of illness. The percentage of disability as per IDEAS is 85%( Eighty five Percent).‖

18. Thereafter CM APPL. 33289/2021 was filed by the petitioner,

wherein the factual background of his case has been reiterated and it is

averred that the Board of medical officers, who examined him on

19.04.1993 had stated that "he has not been considered fit to work as

combatant in CRPF due to SCHIZOPHRENIC PHSYCHOSIS" and the

medical board had remarked during diagnosis on 19.04.1993 that CT/GD

Roshan Lal remained disturbed, complained of constant headache and of

being persecuted by relations and unit people. At the time of report, his

hallucinations were stopped and he continued to show fits of anger and

dysphoria, gross maladjustment in interpersonal sphere and unlikely to be an

efficient member of the Force and in view of above history of the relapsing

illness of psychotic nature and considering the nature of service in CRPF,

the medical board considered him unfit for CRPF Service. It is also averred

that after assessment of percentage of his disability as 85% by Board of

Medical Officers on 13.08.2019, respondent no.5 passed office order dated

10.12.2019 and allowed invalidation pension to the petitioner w.e.f.

15.07.1993 under Rule 38(1) of CCS (Pensions) Rules, 1972 read with GOI,

Department of Pensions & Pensioners Welfare OM No. 45/22/97P&PW (C)

dated 03.02.2000. The relevant portion of aforesaid Office order reads as

under:-

―10. In view of above. No. 880944586 Ex-CT/GD Roshan Lai of this unit who is ―INVALIDATED ‖ from service w.e.f. 15/07/1993 (AN) is allowed to draw invalidation pension from the date of his invalidation as per Rule - 38(1) of CCS (Pension) Rules, 1972 read with GOI, Department of Pensions & Pensioners, Welfare OM. No. 45/22/97/P&PW( C) dated . 03/02/2000, Accordingly, the above said individual struck off from the strength of this unit w.e.f. 15/07/1993 (AN).‖

19. Respondent No. 5 completed the pension documents of petitioner and

submitted them to Pension Sanctioning Authority i.e. DD Accounts, PAO,

CRPF, Sector 23 Extension Rohini, Delhi for issuance of PPO, who vide

letter dated 15.09.2020 raised the following objections:-

―3. Ex-CT/GD Roshan Lal was invalidated out from service wef. 15.07.1993 vide Comdt 39 Bn 0/0 No. P. lll- 3/2019-39:EC-4(MIB) dated 10.12.2019 in which Ex-CT/GD Roshan Lal has been allowed to draw invalidation pension from the date of his invalidation as per Rule 38(1) of CCS (Pension) Rules, 1972 read with GOI, DOP & PW OM No.45/22/97/P & PWC (C ) dated 03.02.2000 which is not appropriate. Before invalidating out of service, the individual was having less than 05 years of qualifying service and one cannot be granted pension on invalidation before qualifying 10 years of service as per Rule 38 of the CCS(Pension) Rules, 1972. In accordance with sub rule 2 of Rule 49 (however, it has now been lifted by DOP & PW vide OM No. 21/01/2016 --P&PW(F) dated 12.01.2019. Further, your office has also quoted order of DOP&PW OM No.45/22/97/P & PWC(C ) dated 03.02.2000 in invalidation order for drawl of invalidation pension, which describes pension under EOP Rules but your office has failed to mentioned that under which category this invalidation (disability ) Pension falls. Whereas individual is entitled to get invalidation pension under CCS (EOP) Rules in place of CCS (Pension) Rules as your office has quote above.

4. (Sic)

5. As per your Court of Inquiry, the individual has been allowed to draw invalidation pension as mentioned in your office order No. P. lll-3/2019-39;EC-4(MIB) dated 10.12.2019, but in COI, the inquiry officer has not discussed or proven that the disability inflicted to the individual is directly attributable to bona fide Govt service. In absence of recommendation of COI simple ordering for invalidation pension under CCS Pension Rule hold no good. Further, PAO has also observed that if any court / Institution has

directed something that should also be discussed in your office order.‖

20. Thereafter, respondent no.5 requested the respondent no.7 for removal

of the objections raised vide letter no.15.09.2020 by conducting board/court

of inquiry and issue amended office order allowing disability pension in

place of invalid pension in the case of petitioner. However, respondent No.7

neither conducted the court of inquiry nor constituted the medical board to

assess the disability of petitioner, instead passed the amended office order

(Invalidation) dated 23.09.2020 for allowing invalid pension. The said office

order dated 23.09.2020 reads as under:-

―02. No. 880944586CT(GD) Roshan Lal (Invalidated form service w.e.f. 15.07.1993 A/N) has been allowed to draw invalidation pension from the date of his invalidation as per Rule - 38(I) of CCS (Pension) Rules, 1972 read with GOI, Department of Pensions & Pensioners Welfare OM. No. 45/22/97/P&PW(C ) dated 03.02.2000 vide this office order of evne no. dated 10.12.2019.

03. GG Bhubaneswar vide their office letter No. P.III.91/1993-GDB-Pension dated 15.09.2020 has intimated that CCS (Pension) Rules - 38 has been amended vide GOI, Department of Pension & Pensioners' Welfare OM No. 21/01/2016- P&PW(F) dated 12.02.2019, in which provided that a Government servant, who retires from service on account of any bodily or mental infirmity which permanently incapacitates him from the service before completing

qualifying service of ten years, may also be granted invalid pension in accordance with sub rule (2) of rule 49, subject to the conditions that the Government servant-

a) was examined by the appropriate medical authority either before his appointment or after his appointment to the service or post and was declared fit by that authority for government service, and,

b) fulfils all other conditions mentioned in this rule for grant of invalid pension.

04. In view of above, para 10 of this order of even no. 10/12/2019 is amended as below:-

Para For                              Read
No.
10   In view of above,                In      view      of      above,
     No.880944586                     No.880944586          Ex-CT/GD
     Ex-CT/GD Roshan Lal of           Roshan Lal of this unit who is
     this                             ―INVALIDATED‖ from service
     unit          who           is   w.e.f. 15/07/1993 (AN) is
     ―INVALIDATED‖                    allowed to draw invalidation
     from       service      w.e.f.   pension from the date of his
     15/07/1993 (AN) is allowed       invalidation as per Rule - 38 of
     to     draw      invalidation    CCS (Pension) Rules, 1972
     pension from the date of his     read with GOI, Department of
     invalidation as per Rule -       Pensions & Pensioners Welfare
     38(1) of CCS (Pension)           OM. No. 21/01/2016-P&PW(F)
     Rules, 1972 read with GOI,       dated.               12/02/2019.
     Department of Pensions &         Accordingly, the above said
     Pensioners Welfare OM.           individual struck off from the
     No.      45/22/97/P&PW(C)        strength of this unit w.e.f.
     dated.           03/02/2000.     15/07/1993 (AN).
     Accordingly,              the
     above said individual struck
     off from the strength of this




          unit       w.e.f. 15/07/1993
         (AN).

                                               (SUKHJIT SINGH RANA)
                                                  DIGP
No.P-lll.3/2019-39EC-4(MIB)                       Dated the 23th Sep
2020‖

21. After sanctioning the invalidation pension, respondent No.5 again

submitted the pension papers along with amended office order dated

23.09.2020 to the concerned DD Accounts, but the same were returned for

removing the objections as per rules and passing the proper office order for

grant of disability pension under CCS (Extra Ordinary Pension ) Rules after

completion of necessary formalities. But respondent No.7 has not followed

the procedure suggested by DD, Accounts. Therefore, petitioner has sought

release of disability pension with 15% interest from 15.07.1993 till

realization of payment.

22. When CM APPL. 33289/2021 came up for hearing before this Court

on 23.09.2021, learned CGSC sought time to obtain instructions and to file

reply.

23. It is pertinent to mention here that the present petition was filed by the

petitioner in the year 2010 seeking invalid pension. After completion of

pleadings, the petition was kept „part heard‟ on 23.08.2016, however, on

29.08.2016 and 14.09.2016 adjournment was sought on behalf of learned

CGSC to re-examine the matter; to obtain instruction and another

adjournment on 23.09.2016 was again sought at joint request. Thereafter, the

matter could not be heard and released from „part heard‟ on 10.03.2017. The

matter was again listed on 04.09.2017 for hearing arguments, however, on

the said day, learned proxy counsel informed that learned CGSC was

indisposed and so, matter was adjourned and the petition was listed in the

category of „after notice miscellaneous matters‟. Thereafter, CM APPLNs.

30830-31/2019 were filed by the petitioner. On 14.08.2019, learned counsel

for petitioner informed that the Review Medical Board was held and due to

Covid -19 pandemic, the matter could not be heard. On 23.09.2021, the CM

APPLN. 33289/2021 came up for hearing and learned CGSC sought time to

file reply and to obtain instructions. On 11.10.2021 learned CGSC again

sought time and was granted last opportunity to file reply to this application.

Again on 18.01.2022, the matter stood adjourned for non-availability of

learned CGSC due to his ill health. Thereafter, on 04.04.2022 learned CGSC

made a statement before the Court that ―that the respondents had decided to

release the Invalidation Pension w.e.f. 15.07.1993‖ and on this aspect only

sought another adjournment on 10.05.2022 to take final decision. Today,

when the petition is listed for learned CGSC to finally apprise this Court

about the final outcome of release of invalid pension, that the above

captioned second application i.e. CM APPL. 30887/2022 is filed.

24. A perusal of above order sheets and in specific, orders dated

15.09.2020 and 23.09.2020 clearly show that after so many years, the stand

of the respondents is still unclear, as they have been changing stand on grant

of invalid pension to the petitioner. According to learned CGSC, he was

duly informed by the officers of the CRPF that invalid pension of the

petitioner was sanctioned, however, but now it turns out to be erroneous and

so, learned CGSC has sought to withdraw the statement made before this

Court. In the application, learned CGSC has prayed that the present case be

heard and decided on merits.

25. We are constrained to note that the continuous change of stand has

consumed precious time of this Court, which cannot be permitted. Since the

above captioned second application i.e. CM APPL. 30887/2022, is contrary

to the pleadings and the repeated statement made by learned CGSC

appearing for the respondents before this Court, therefore, we hereby

dismiss the same with cost of Rs.25,000/- to be paid in favour of ―Bharat ke

Veer‖. The respondents are directed to place on record receipt of deposit of

cost within four weeks.

26. With regard to prayer of petitioner in CM APPL. 33289/2021, it is not

in dispute that initially the petitioner had filed the present petition seeking

invalid pension. Thereafter, petitioner sought amendment in the writ petition

seeking to challenge the order dated 20.04.1993, vide which he was

invalidated form service. This Court on 11.07.2016 dismissed the said

application i.e. CM APPL. 22468/2016 in limine on the ground that it was

too late for the petitioner to challenge the invalidation order of 1993 in the

year 2016. Thereafter, pursuant to his filing of CM APPL. 30831/2019,

respondents constituted a Board of Medical Officers at CRPF Base Hospital,

New Delhi for assessment of percentage of his disability and Board of

Medical Officers examined the petitioner at CH, CRPF on 13.08.2019 and

opined that the petitioner was suffering from Schizophernia with poor

response of treatment and deteriorating course of illness for the last of 26

years and assessed the disability percentage as 85%. Now, by CM APPL.

33289/2021, petitioner is seeking grant of disability pension under CCS

(Extra Ordinary Pension) Rules and OM No. 45/22/97P&PW (C) dated

03.02.2000, with interest @15% from the date of invalidation i.e.

15.07.1993.

27. There is no doubt that time and again petitioner has been frequently

changing his stand for grant of pension. However, it is not disputed that in

the year 1992 while petitioner was performing his duties as Commando in

National Security Guard (NSG), having been posted there on deputation

basis, he fell and sustained serious mental injuries. Pertinently, the Board of

Medical Officers had examined the petitioner on 20.04.1993 and gave the

following opinion:-

―Patient has been considered unfit for service by board of medical officers. Documents being sent separately.

It is advisable to send the patient with attendant / escort to be handed over to relatives / NOK after due formalities in unit.‖

28. The Board of Medical Officers though declared petitioner „unfit for

service‟, however, did not assess the percentage of his disability. Further, in

view of nature of injuries sustained by the petitioner, the respondent No.3

did not find it feasible to continue retaining the petitioner on deputation and

so, he was therefore relieved. Thereafter, petitioner was invalidated from

service by respondent No.7 on 15.07.1993. Pursuant to opinion of Medical

Board dated 13.08.2019, the respondent No.7 had passed office order dated

10.12.2019 granting invalid pension to the petitioner w.e.f. 15.07.1993

under Rule 38 (1) of CCS (Pensions) Rules, 1972 read with OM No.

45/22/97P&PW (C) dated 03.02.2000 of the Government of India. However,

as the DM No. 45/22/97P&PW (C ) dated 03.02.2000 provided that only

service gratuity is admissible to Government servants with 10 years of

service and pension is admissible for qualifying service of 10 years or more,

therefore, vide letter dated 15.09.2020, the concerned DDO refused to grant

pension. Thereafter, vide another office order dated 23.09.2020 respondent

No.7 held that though the petitioner has been permitted to draw invalid

pension in terms of OM No. 45/22/97P&PW (C) dated 03.02.2000,

however, by virtue of OM No. 21/01/2016- P&PW(F) dated 12.02.2019, it

was permitted that if a Government servant is retired from service on

account of bodily or mental infirmity before the qualifying service of 10

years, shall also be granted invalid pension.

29. It is not out of place to mention that subsequent upon issuance of OM

No. 45/22/97P&PW (C) dated 03.02.2000 and prior to issuance of OM No.

21/01/2016- P&PW(F) dated 12.02.2019, Vide OM No. 33/5/2009-P & PW

(F) dated 10.12.2010 was also issued, wherein criteria for grant of disability

pension to those qualifying less than 10 years of service, were stipulated.

However, the conditions for grant of disability pension, as noted in OM No.

21/01/2016- P&PW(F) dated 12.02.2019, read as under:-

―a) was examined by the appropriate medical authority either before his appointment or after his appointment to the service or post and was declared fit by that authority for government service, and,

b) fulfils all other conditions mentioned in this rule for grant of invalid pension.‖

30. The conditions stipulated in the preceding paragraph to the case of

petitioner, we find that petitioner was declared „unfit for service‟ by the

Board of Medical Officers, who had examined him on 20.04.1993.

However, the OM No. 21/01/2016- P&PW(F) dated 12.02.2019 mentions

that a Government servant who retires from service on account of any bodily

or mental infirmity, which permanently incapacitates him for the service

before completing the qualifying service of ten years, may also be granted

invalid pension, subject to condition that the person concerned has to be

„declared fit‟ by the medical authority either before his appointment or after

his appointment to the service or post thereto.

31. In Dharamvir Singh Vs. Union of India (2013) 7 SCC 316, on the

aspect of determining the disability and grant of pension, the Hon‟ble

Supreme Court has held as under:-

"32. Para 1 of Chapter II -- ―Entitlement: General Principles‖ specifically stipulates that certificate of a constituted medical authority vis-à-vis invalidating disability, or death, forms the basis of compensation payable by the Government, the decision to admit or refuse entitlement is not solely a matter which can be determined finally by the medical authorities alone. It may require also the consideration of other circumstances e.g. service conditions, pre- and post-service history, verification of wound or injury, corroboration of statements, collecting and weighing the value of evidence, and in some instances, matters of military law and dispute. For the said reasons the Medical Board was required to examine the cases in the light of etiology of the particular disease and after considering all the relevant particulars of a case, it was required to record its conclusion with reasons in support, in clear terms and language which the Pension Sanctioning Authority would be able to appreciate.

33. In spite of the aforesaid provisions, the Pension Sanctioning Authority failed to notice that the Medical Board had not given any reason in support of its opinion, particularly when there is no note of such disease or disability available in the service record of the appellant at the time of acceptance for military service. Without going through the aforesaid facts the Pension Sanctioning Authority mechanically passed the impugned order of rejection based on the report of the Medical Board. As per Rules 5 and 9 of the Entitlement Rules for Casualty Pensionary Awards, 1982, the appellant is entitled for presumption and benefit of presumption in his favour. In the absence of any evidence on record to show that the appellant was suffering from ―generalised seizure (epilepsy)‖ at the time of acceptance of his service, it will be presumed that the appellant was in sound physical and mental condition at the time of entering the service and deterioration in his health has taken place due to service.

34. As per Rule 423(a) of the General Rules for the purpose of determining a question whether the cause of a disability or death resulting from disease is or is not attributable to service, it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a field service/active service area or under normal peace conditions. ―Classification of diseases‖ have been prescribed at Chapter IV of Annexure I; under Para 4 post-traumatic epilepsy and other mental changes resulting from head injuries have been shown as one of the diseases affected by training, marching, prolonged standing, etc. Therefore, the presumption would be that the disability of the appellant bore a causal connection with the service conditions.‖

32. There is no iota of doubt that at the time of appointment in service by

CRPF in the year 1988, petitioner was in good state of health and mind and

his candidature for appointment to the post of Commando in NSG on

deputation basis in the year 1991 was also subject to his fitness. The

respondents have not been able to bring any document on record to show

that petitioner had not sustained injuries/ disability during the course of his

performing duties. The petitioner had sustained serious mental injuries while

undergoing training /exercise as a part of the course for performing duty as

Commando. The gravity of injury sustained by the petitioner left him „unfit

to join duty‟ and he was deported to his family. However, the respondents

did not conduct any court of inquiry nor constituted the medical board to

assess the disability of petitioner. Pursuant to orders of this Court, the