UNION OF INDIA Vs. BASHIRBHAI R KHILIJI

JUDGEMENT

(1.) This appeal is directed against the order passed by the Division Bench of the High Court of Gujarat at Ahmedabad whereby the Division Bench of the High Court has set aside the order passed by the Additional Deputy Inspector General of Police, Central Reserve Police Force, ( for short, CRPF), Group Centre, Gujarat, Gandhi Nagar dated 26.4.1996 and held that the respondent is entitled to invalid pension which may be calculated in accordance with rules and paid to him within three months along with interest at the rate of 9 per cent from 1.9.1991.

(2.) Brief facts which are necessary for disposal of this appeal are that the respondent herein was selected and appointed as Armed Constable in the Central Reserve Police Force. He was posted at Amritsar (Punjab) in the Anti-terrorist squad. Thereafter, he was posted at Srinagar (Jammu & Kashmir) for the protection of citizens against terrorists. While on duty due to heavy snowfall in Srinagar he suffered from Pyrogenic meningitis and neurosensory deafness (bilateral). Consequently, he was referred to S.M.N.S.Hospital and was admitted there from 19.1.1990 to 14.2.1990 and thereafter at the Base Hospital -1, New Delhi and All India Institute of Medical Sciences, New Delhi from 17.3.1990 to 16.4.1990 for investigation and treatment. He was diagnosed as a patient of ' Pyrogenic Meningitis with B.I. Sensonery Deafness'. Despite medical treatment at various hospital, the respondent could not be cured and he was declared unfit for active duty. His case was referred for consideration whether he could do alternative job. But there also he could not secure one as he was found invalid. Finally he was invalidated from service on 1.7.1991 (F.N.) vide office order dated 27.6.1991 passed by the Group Commander, CRPF, Gandhinagar. The respondent requested for invalid pension but that was rejected on the ground that he had not completed the qualifying service of ten years. But he has been given service gratuity of Rs.4,140/- apart from a recurring payment of Rs.1000/- per month from Risk Fund for life vide order dated 12.12.1991. The respondent filed S.C.A.No. 12432 of 1994 before the High Court of Gujarat praying for invalid pension. But by order dated 28.2.1996 the High Court directed that the representation of the respondent for separate pension be considered in accordance with rules. It was also observed that the respondent's case for separate entitlement to invalid pension was distinct from the entitlement from the risk fund and if the entitlement from the risk fund was the same as invalid pension, reasoned order be passed in that respect. Pursuant to that direction, respondent's representation was considered and was rejected by order dated 26.4.1996. The respondent also made a representation with regard to recovery of Rs.22231/- . This was rejected on the ground that the respondent had been overpaid with respect to the period he remained under treatment and medical examination. The respondent thus approached the High Court again by filing the present writ petition and claimed for invalid pension. This was opposed by the appellants that the respondent is not entitled to invalid pension as per Central Civil Services (Pension) Rules, 1972, since he had not completed ten years of service. The Division Bench after considering Rule 38 which deals with the invalid pension took the view that since the respondent's invalidity was 100 per cent, therefore he was entitled to invalid pension and the condition of ten years of qualifying service could not be invoked so as to deny the respondent the invalid pension. The Division Bench further held that since the respondent while on duty has suffered the permanent disability, therefore, whatever excess payment made to him should not be recovered. Aggrieved against this impugned order the present appeal was filed by the appellants.

(3.) We have heard learned counsel for the parties and perused the records. There is no two opinion in the matter the respondent while serving at height has suffered 100 per cent invalidity. He has already been granted Rs.1000/- per month out of the risk fund which is specially reserved for such disability. But so far as the question of granting invalid pension is concerned, that cannot be considered though it may be harsh, as per the scheme of the Pension Rules. The respondent being a constable in the Central Reserve Police Force is governed by the Central Reserve Police Force Act, 1949 and Central Reserve Police Force Rules, 1955 (hereinafter to be referred to as 'the Rules of 1955'.). According to Rule 42 of the Rules of 1955, the respondent is governed by the Central Civil Services (Pension) Rules, 1972. The Pension Rules of 1972 contemplates various types of pensions in Chapter V. Rule 35 deals with superannuation pension. Rule 36 deals with retiring pension. Rule 37 deals with pension on absorption in or under a Corporation, Company or Body. Rule 38 which deals with invalid pension reads as under :