Ex No.G/5010642 Re/Gd Fateh Singh ... vs The Union Of India And Ors
2021 Latest Caselaw 1487 Gua

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GAHC010007622011




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : WP(C)/4292/2011

            EX NO.G/5010642 RE/GD FATEH SINGH RAWAT
            S/O- SHRI TILOK SINGH, VILL.- SHAHI HAUG MAHAKALI MANDIR, P.O.-
            TAVDIPURA, DIST.- AHMEDABAD GUJRAT, PIN- 380004.

            VERSUS

            THE UNION OF INDIA and ORS
            REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
            AFFAIRS, NORTH BLOCK, NEW DELHI, PIN- 110001.

            2:THE SECY. TO THE GOVT. OF INDIA
             MINISTRY OF PERSONNEL
             PUBLIC GRIEVANCES AND PENSION
             NORTH BLOCK NEW DELHI PIN- 110001.

            3:THE DIRECTOR GENERAL ASSAM RIFLES
             MAHANIDESHALAYA THE DIRECTORATE GENERAL ASSAM RIFLES
            SHILLONG MEGHALAYA PIN- 793011.

            4:THE COMMANDANT ASSAM RIFLES TRAINING CENTRE AND SCHOOL
             DIMAPUR C/O- 99 APO.

            5:THE COMMANDANT ASSAM RIFLES TRAINING CENTRE AND SCHOOL
             DIPHU KARBI ANGLONG ASSAM C/O- 99 APO

Advocate for the Petitioner   :   Ms. S. Bora
                                  Ms. K Das
                                  Ms. N Chakraborty
                                  H G BARUAH

Advocate for the Respondent :     ASSTT. SGI
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                                       BEFORE
                           HONOURABLE MR. JUSTICE NANI TAGIA

                                                ORDER

Date : 21.04.2021

Heard Ms. S. Bora, learned counsel for the petitioner.

Also heard Mr. K. K. Parasar, learned CGC, representing the respondents No. 1 to 5.

This writ petition under Article 226 of the Constitution of India, is directed against the order, dated 21.11.2009, issued by the Captain, OIC Pay Cell, vide Memo. No. II.20030/5010642/2009/138, whereby the petitioner's prayer for grant of invalid pension, has been declined on the ground that in terms of Rule 49(2)(b) of the CCS(Pension) Rules, 1972, the petitioner has not completed the mandatory minimum 10 years of qualifying service.

The petitioner further seeks a direction to pay him the disability pension, retirement gratuity and ex-gratia lump-sum compensation w.e.f. 09.04.2007 as per the CCS (Extraordinary Pension) Rules, 1939.

The petitioner's case as projected in the writ petition, briefly stated, is, as under:

The petitioner was appointed as a Rifleman in the Assam Rifles on 21.02.2005. After having appointed as such, while the petitioner was undergoing a training, he had, however, sustained an injury during the course of the training on 26.06.2006 as a result of which, he was found to have suffered "Aneurysmal bone cyst proximal femur with pathological fracture sub trochanteric region felmur(lt) OPTD", with 60% disability, consequent upon which, he was discharged from the service, as trainee, on and from 01.09.2006. On his discharge from service, as stated-above, the petitioner submitted an application on 26.06.2007, praying for disability pension as he had suffered disability during the course of training period.

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The fact that the petitioner was appointed as a Rifleman in the Assam Rifles on the date mentioned above and during the period of training, he had sustained injury resulting in 60% disability as described hereinabove consequent upon which, the petitioner, as a trainee, was discharged from service; have not been disputed by the respondents.

The respondent authorities in the affidavit-in-opposition filed, however, have stated that the petitioner is not entitled for disability pension on 2 grounds:- firstly, that the petitioner has not completed mandatory minimum 10 years of service as contemplated under Rule 49(2)(b) of the CCS(Pension) Rules, 1972, and a minimum of 60% disablement attributable to service condition as per Para 3(A) of the CCS(Extraordinary Pension) Rules, 1972; and secondly; the petitioner had a pre- existing ailment i.e. "Aneurysmal bone cyst proximal femur with pathological fracture sub trochanteric region felmur(lt) OPTD", which was not disclosed by the petitioner to the respondents at the time of his appointment as a Rifleman.

The rival contentions advanced by the learned counsels for the parties have been duly considered by the Court.

The issue raised in this writ petition is identical to what has been decided by this Court in WP(c)4371/2013 vide judgment & order, dated 19.03.2018, wherein, on consideration of similar contention raised by the petitioner as well as the respondent authorities, this Court, after having placed a reliance on the earlier judgment & order, dated 22.09.2004 passed by the Court in WP(c)4488/2003, had nullified the contention raised by the respondents and had directed the respondents to pay to the petitioner, therein, the disability/invalid pension within a period of 3 months from the date of receipt of a certified copy of the order.

The extract of the judgment & order, dated 22.09.2004, passed by this Court in WP(c)4488/2003, as reproduced in the judgment & order, dated 19.03.2018, passed by this Court in WP(c)4371/2013, have again been reproduced hereinbelow; for ready reference:

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"As regards the refusal of granting pension, it is submitted that the persons belonging to Assam Rifles are governed by the CCS Pension Rules, 1972 and Army Pension Rules. It is further stated that under the CCS(extraordinary Pension) Rules, disability pension can be sanctioned when a personnel is invalided out only with 60% or above disability and as the petitioner had only 30% disability, he is not entitled to such pension. The second ground for refusal of the pension is that invalid pension can be granted to a person whose qualifying service is 10 years and above whereas, the petitioner had rendered only 1 year 4 months 20 days of service.

There is no dispute at the Bar that the petitioner was a member of the Assam Rifles and in case of Assam Rifles person, the Pension Regulation for the Army, 1961, applies and hence, the provisions of the pension regulation for the Army, for short, Regulation, govern the matter.

As regards the claim of the respondent that the disability pension is admissible only to the persons who have sustained 60% disability, we may refer to Section 173 of the Regulation which reads:

"173. Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 per cent or over.

he question whether a disability is attributable to or aggravated by military service shall be determined under the Rules in Appendix II."

In the present case as stated there is no dispute that the petitioner had sustained 30% disability as per the report of the medical board.

A similar view was taken by this Court in the case of Shabab Uddin Barbhuiya Vs. Union of India in WP(C) No. 4907/99 disposed of on 23.4.02 and in view of specific provisions, we decline to accept the statement that the disability pension in respect of army person is admissible in case of 60% only.

As regards the plea that the qualifying service for getting invalid pension is 10 years as claimed by the respondent, we find no basis as the regulation nowhere provides for the same on the contrary, Rule 181 reads as follows:

"181. Recruits and young soldiers will be eligible for a disability pension in the rates and under the conditions applicable to a sepoy of the lowest group."

As per respondent's own statement in the affidavit-in-opposition, in question, the petitioner had completed 1 year 4 months of army service. The petitioner was admittedly not suffering from the above disease at the time of entry into the army service, as no records have been produced to show that the petitioner was suffering from the said disease at the time of entry into the army service. Hence, in view of the provisions, the petitioner is deemed to suffer the disability during service.

In view of the above, we find no justification or basis for denying the invalid pension to the petitioner. Accordingly, we hold that the petitioner is entitled to invalid pension as provided under the rules and regulations."

In the instant case, the respondents have not denied the disability suffered by the petitioner as contended by him that the disability so suffered, is attributable to his service.

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It appears that in WP(c)4488/2003, the petitioner, who was in Assam Rifles for 16 months, had sustained 30% disability while the petitioner, herein, had sustained 60% disability.

The contention raised by the respondents, herein, that, for payment of disability pension, the mandatory minimum 10 years of service period is required under the relevant Rules, have also been nullified by this Court in WP(c)4488/2003, as referred to and reproduced in the judgment & order, dated 19.03.2018.

Insofar as the contention of the respondents to the effect that the petitioner would not be entitled for disability pension because of the fact that he did not disclose that he had a pre-existing "Aneurysmal bone cyst proximal femur with pathological fracture sub trochanteric region felmur(lt) OPTD"; the learned counsel for the respondents have not been able to point-out any provision under the relevant Rules that such non-disclosure of pre-existing ailment at the time of the appointment of the petitioner as a Rifleman in Assam Rifles, would disentitle him from receiving the pension under the relevant Rules; the contention raised by the respondents, therefore, cannot be upheld.

In that view of the matter, this Court finds that there is no justification of denying the disability pension to the petitioner.

Accordingly, in view of the reasons, stated-above, and also taking into consideration the fact that as the present case is identical to the case as rendered by this Court vide judgment & order, dated 19.03.2018, passed in WP(c)4488/2003; the respondent authorities are hereby directed to process and to provide payment of disability/invalid pension to the petitioner within a period of 3(three) months from the date of receipt of a certified copy of this order.

The writ petition stands allowed and disposed of, in terms above.

JUDGE Comparing Assistant