Rajasthan High Court

Laxmi Devi vs U O I And Ors on 1 April, 2022

Bench: Anoop Kumar Dhand

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 20106/2013

Laxmi Devi W/o Late Shri Ved Prakash, Aged 55 years, R/o
Aahiron Ka Mohalla, Village-Mirjapur, Tehsil-Mandawar, District-
Alwar Raj.
                                                                     ----Petitioner
                                     Versus
1.        Union Of India, Through Secretary, Department Of Home
          Affairs, Union Of India, Central Secretariat, New Delhi
2.        The Director General Central Reserve Police Force, CGO
          Complex Lodi Road, New Delhi
3.        The Additional D.I.G.P. (Group Centre), Central Reserve
          Police Force, Neemuch M.P.
                                                                  ----Respondents

For Petitioner(s)          :     Mr. Dinesh Sharma
For Respondent(s)          :     Mr. Amit Jindal


          HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
                                      Order

01/04/2022

Today the matter comes up on an application (IA No.

1/2022) filed by the petitioner for deciding the instant petition in

the light of the order dated 27.11.2019 passed by this Court in the

case of Bhagirath Singh Vs. The Union of India and ors. (SB

Civil Writ Petition No. 13218/2016) in which the controversy

involved is identical to the controversy involved in the instant

petition and the same was decided by this Court by observing

thus:-

"Counsel for the petitioner relies on the judgment passed by the Apex Court in SLP (C) No.20339/2011- Union of India & Ors. Vs. P.A. Thomas decided on 14.03.2019 whereby the Apex Court has now finally adjudicated the question whether disability pension would be released to CRPF Personnel who has not rendered 10 years or more service?

(2 of 5) [CW-20106/2013]

The three Judges Bench of the Apex Court in P.A.Thomas (supra) as held as under:-

"(ii) in rule 49, for sub-rule (2), the following sub-rule shall be substituted, namely: - "(2) Subject to the proviso to sub- rule (2) of rule 38, in the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than ten years, the amount of pension shall be calculated at fifty per cent of emoluments or average emoluments, whichever is more beneficial to him, subject to a minimum of nine thousand rupees per mensem and maximum of one lakh twenty five thousand rupees per mensem."" The said amendment shaving been placed before the SLP(C) 20339/2011 Court, the Court was of the view that further clarification was required which has now been made by a clarificatory Office Memorandum bearing No. 21/01/2016- P&PW(F) dated12.2.2019 in the following terms:-

2. In this connection, it is clarified that the condition of qualifying service of ten years for grant of pension under Rule49(2) of the CCS (Pension) Rules, 1972 shall not be applicable in the case of a Government servant retiring on Invalid Pension on account of any bodily or mental infirmity, under Rule 38. Accordingly, Invalid Pension at the rate of 50% of emoluments or average emoluments, whichever is more beneficial, subject to a minimum of nine thousand rupees per mensem and maximum of one lakh twenty five thousand rupees per mensem, shall be payable to a Government servant who retires under Rule 38 of CCS(Pension) Rules, 1972 even before completing a qualifying service of ten years." Having perused the aforesaid clarification, we are of the view that the matter now stands adequately covered and would be governed by provisions of the amended Rules 38 and 49 of the Central Civil Services(Pension) Rules, 1972, which would be applied to all eligible cases."

Accordingly, this writ petition is allowed in the aforesaid terms. The respondents shall consider the case of the petitioner for grant of disability pension as admittedly he was disabled while in service and had put in 9 years 1 month and 13 days service when he was declared unfit. The disability pension shall be released within a period of three months from the date, he was eligible to receive the same.

No costs. All application stand disposed of."

Learned counsel for the petitioner further submits that even

the Hon'ble Apex Court in the case of Union of India & Ors. Vs.

P.A. Thomas has decided the similar controversy while deciding

Special Leave to Appeal (C) No. 20339/2011 on 14.03.2019

by observing thus:-

(3 of 5) [CW-20106/2013]

"In our previous order dated 10.5.2018, we had recorded that benefits as claimed have been conferred to the respondent, but a larger question did arise in the case, which was recorded in the said order in the following terms:-

"Rule 38 of the Central Civil Services (Pension) Rules, 1972 has been amended on 30.09.2016. By virtue of the amendment made persons who suffer disabilities while in service, if given the benefit under Section 47 of the Persons with Disabilities (Equal Opportunities, SLP(C) 20339/2011 2 Protection of Rights and Full Participation) Act, 1995 (for short, Disabilities Act') would henceforth be governed under the provisions of Section 47 of the Disabilities Act subject to production of a disability certificate from the competent authority as prescribed under the Act. However, Rule 38(2), as amended, provides that if such employees to whom the provisions of Section 47 of the Disabilities Act are not applicable and such person retires from service on account of bodily or mental infirmity which permanently incapacitates him for service, he may be granted invalid pension or service gratuity in accordance with Rule 49 of the Pension Rules depending upon the length of his qualifying service on the date of retirement.

The matter needs clarification and in our considered view, by the Government. If on sustaining incapacity while in employment alternative employment under Section 47 of the Disabilities Act is guaranteed in cases of permanent incapacity should grant of invalid pension be contingent on completion of any particular length of service. Rather would such length of service be relevant for computation of quantum of invalid pension.

The learned Additional Solicitor General has submitted that the matter may be adjourned for a period of three months to enable the concerned authority in the Union of India to deal with the matter and pass appropriate orders/clarifications as may be considered necessary.

List the matter after three months."

Rules 38 and 49 of the Central Civil Services (Pension) Rules, 1972 have been amended on 4.1.2019 in the following manner:-

"2. In the Central Civil Services (Pension) Rules, 1972 -

(i) in rule 38, for sub-rule (1) and sub-rule (2), the following sub-rules shall respectively be substituted, namely:-

"(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

(4 of 5) [CW-20106/2013]

incapacitates him for 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) 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;

(ii) in rule 49, for sub-rule (2), the following sub-rule shall be substituted, namely:

"(2) Subject to the proviso to sub-rule (2) of rule 38, in the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than ten years,the amount of pension shall be calculated at fifty per cent of emoluments or average emoluments, whichever is more beneficial to him, subject to a minimum of nine thousand rupees per mensem and maximum of one lakh twenty five thousand rupees per mensem."

The said amendments having been placed before the Court, the Court was of the view that further clarification was required which has now been made by a clarificatory Office Memorandum bearing No.21/01/2016- P&PW(F) dated 12.2.2019 in the following terms:-

2. In this connection, it is clarified that the condition of qualifying service of ten years for grant of pension under Rule 49(2) of the CCS (Pension) Rules, 1972 shall not be applicable in the case of a Government servant retiring on Invalid Pension on account of any bodily or mental infirmity, under Rule

38. Accordingly, Invalid Pension at the rate of 50% of emoluments or average emoluments, whichever is more beneficial, subject to a minimum of nine thousand rupees per mensem and maximum of one lakh twenty five thousand rupees per mensem, shall be payable to a Government servant who retires under Rule 38 of CCS (Pension) Rules, 1972 even before completing a qualifying service of ten years. "

Having perused the aforesaid clarification, we are of the view that the matter now stands adequately covered and would be governed by provisions of the amended Rules 38 and 49 of the Central Civil Services (Pension) Rules, 1972, which would be applied to all eligible cases.

The special leave petition consequently shall stand disposed of in the above terms.

Pending interlocutory applications, if any, shall stand disposed of."

Counsel for the respondents opposed the arguments raised

by counsel for the petitioner but he is not in a position to

controvert the settled position of law as decided by the Hon'ble

(5 of 5) [CW-20106/2013]

Apex Court in the case of P.A.Thomas (supra) and by this Court in

the case of Bhagirath Singh (supra).

In view of the above, the writ petition stands disposed of in

the light of the judgment of the Hon'ble Apex Court in the case of

P.A.Thomas (supra) and judgment of this Court in the case of

Bhagirath Singh (supra). The respondents are directed to consider