Punjab-Haryana High Court
Sreenivasa Rao Sanapala vs Union Of India And Others on 13 December, 2023
Neutral Citation No:=2023:PHHC:159734
2023:PHHC:159734
CWP-25668-2023 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
136 CWP-25668-2023
Date of Decision: 13.12.2023
Sreenivasa Rao Sanapala ...Petitioner
Versus
Union of India and others ...Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present:- Mr. Rajeev Anand, Advocate for the petitioner
Mr. Ashish Chaudhary, Senior Panel Counsel,
for Union of India-respondents
***
JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition under Articles 226/227 of
the Constitution of India is seeking direction to respondents to grant him
disability pension.
2. The petitioner joined as Constable with Indo Tibetan Border
Police Force on 17.10.2005. The petitioner during training suffered from fever
and he was diagnosed with 'seizures'. The petitioner was invalidated from
service in 2015. The petitioner preferred CWP No.26390 of 2015 before this
Court assailing invalidation order. The said petition came to be disposed of
vide order dated 04.04.2019 (Annexure P-8) with a direction to the
respondents to get the petitioner re-examined from a duly constituted Medical
Board. The petitioner was re-examined by Medical Board and again he was
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found medically unfit. The petitioner was again invalidated from force in
2020.
3. Learned counsel for the petitioner inter alia contends that in
terms of judgment of Hon'ble Supreme Court in Union of India v. P.A.
Thomas, the petitioner is entitled to disability pension despite the fact that he
has not completed 10 years continuous service.
4. Learned counsel for the respondents submits that Rule 38 of
Central Civil Services (Pension) Rules, 1972, has been amended on
04.01.2019 whereby a proviso to sub-rule (2) of Rule 38 has been inserted. As
per proviso, the condition of minimum 10 years' service for claiming benefit
of invalid pension has been waived. The said amendment is prospective in
nature, thus, petitioner is not entitled to benefit of the amendment. The
amended rule 38 reads as:-
"(1) The case of a Government servant acquiring a disability,
where the provisions of section 20 of the Rights of Persons with
Disabilities Act, 2016 (49 of 2016) are applicable, shall be
governed by the provisions of the said section:
Provided that such employee shall produce a disability
certificate from the competent authority as prescribed under
the Rights of Persons with Disabilities Rules, 2017.
(2) If a Government servant, in a case where the provisions of
section 20 of the Rights of Persons with Disabilities Act, 2016
(49 of 2016) are not applicable, retires from the service on
account of any bodily or mental infirmity which permanently
incapacitates him for the service, he may be granted invalid
pension in accordance with rule 49:
Provided 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 qualifying
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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) has been examined by the appropriate medical authority
either before his appointment or after his appointment to the
Government service and declared fit by such medical authority
for Government service; and
(b) fulfills all other conditions mentioned in this rule for grant
of invalid pension;"
[Emphasis Supplied]
5. The petitioner complies with all the conditions as envisaged by
aforesaid amended rule. The respondent is denying benefit of amended rule on
the sole ground that amendment is prospective in nature. The amendment has
been made to extend benefit of invalid pension to all those employees who
have suffered injury during the course of service. It is a beneficial amendment
and from the perusal of the amended rule, it is difficult to conclude that
amendment is prospective in nature. If it is held that amendment is
prospective in nature, all those persons who have been invalidated prior to
aforesaid amendment would be deprived of the benefit of invalid pension
which would amount to discrimination between two equally situated persons.
The said interpretation would be violative of Articles 14 and 21 of the
Constitution of India. In the absence of specific or implied intention of the
legislature to make the amendment prospective, this Court finds that it would
be in the fitness of things and interest of justice if it is read as retrospective in
nature and benefit is extended to all those employees who have been
invalidated prior to aforesaid amendment and fulfil all the conditions
contemplated therein.
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6. In the wake of aforesaid facts and findings, this Court is of the
considered opinion that present petition deserves to be allowed and
accordingly allowed. The needful shall be done within six months from
today.
(JAGMOHAN BANSAL)
JUDGE
13.12.2023
Mohit Kumar
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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