Disability Pension can be granted under Golden Jubilee Seema Prahari Kalyan Kawach only in some cases

Lahari Gurrala | Symbiosis Law School, Hyderabad | 31st January 2020

MOHIT AHLAWAT vs UNION OF INDIA AND ORS W.P.(C) 10769/2017

Facts of the case:

• The Petitioner joined the Armed Force Headquarters, Ministry of Defence as Lower Division Clerk (“LDC”) on compassionate grounds on 16th October, 2009. While working as such, he applied for the post of Assistant Commandant in the Central Armed Police Force (“CAPF”) through the Union Public Service Commission (“UPSC”) in 2012. He appeared in the written examination in 2013 and subsequently, successfully cleared the Physical Efficiency Test and the Medical Examination. He was declared fit on 7th May, 2013. 
• The Petitioner’s name was included in the list of the finally selected candidates declared by the UPSC and he was issued an offer of appointment dated 11th December, 2014 for the post of Assistant Commandant (Direct Entry) [(“AC(DE)”] in the BSF. As a result, the Petitioner tendered his technical resignation at the Armed Force and on 16th January, 2015, was relieved from the Armed Force Headquarters. 
• On 19th January, 2015 the Petitioner reported at the BSF Academy for his basic training as AC (DE). 
• On 23rd November, 2015, the Petitioner sustained a „bi-malleolar‟ fracture on his left ankle while training during the „assault course‟ and was therefore admitted at the BSF Hospital and discharged after twelve days. The Petitioner was sanctioned Earned Leave from 23rd January, 2016 till 23rd February, 2016 for resting his injured ankle.
• The Medical Board opined that, Based on clinical examination, radiological findings and opinion of treating specialists the board is of the opinion that Sh. Mohit Ahlawat AC/DE Trainee Officer Sr. No. 39 is permanently unfit for undergoing Basic AC (DE) Training and the status of his disability is indicated a 58.47%. 
• The Petitioner made a representation on 19th October, 2016 for claiming financial assistance under the Golden Jubilee Seema Prahari Kalyan Kawach (“GJSPKK”) scheme made available to the persons boarded out on account of the disability. By a reply dated 1st November, 2016, the Respondent rejected the claim of the Petitioner on the ground that he was declared 58.47% “Temporary Disabled”, whereas financial assistance could be granted only to Permanently Disabled Officers. The Petitioner made yet another representation on 2nd December, 2016 for financial benefits under the above scheme. 
• the Respondent invalidated the Petitioner on the ground of physical unfitness while acknowledging that the injury sustained by the Petitioner was attributable to Government duty. 
• On 30th December 2016, the Petitioner requested the Respondents that his pension case should be processed. In the meanwhile, the Petitioner re-joined his post as LDC with the Ministry of Defence on 2nd January, 2017 since the Petitioner continued to be on his lien period in the Ministry of Defence. 
• On 15th July, 2017, the Respondent rejected the claim of the Petitioner stating that as per the Office Memorandum (“OM”) dated 3rd February, 2000 disability pension was applicable only to those persons who have “permanent disability not less than 60%”. By a further clarification letter dated 27th July, 2017, Para 3 of the rejection order was modified and it was stated that the word “60% disability” was erroneously written and the OM dated 3rd February, 2000 nowhere mentions temporary disability. It was accordingly stated that the Petitioner was not qualified to receive the disability pension. It is in these circumstances, that the Petitioner approached this Court seeking the aforementioned relief.
• In response to the notice issued to the Respondent on 4th December, 2017, a counter affidavit has been filed reiterating the Respondent’s position that the Petitioner’s disability being a temporary one, he is not entitled to receive disability pension. and grant of ex-gratia compensation. 
• The learned counsel for the petitioners have submitted that the Respondents found the Petitioner only to be temporarily unfit, he could not have been boarded out from the BSF. In the circumstances, characterising the Petitioner’s disability as temporary is contrary to the medical record. 
• It was also submitted that through the OM dated 3rd February, 2000 issued by the Department of Pension and Pensioners Welfare, Ministry of Personnel and Public Grievances, Government of India, which deals with special benefits in the case of death and disability in service. Inter alia, as a result of the recommendations of the Fifth Central Pay Commission, the OM sets out the stand of the Government revising the percentage of disability for the purpose of computation of the disability „element‟ in Para 5 (i), which reads as the percentage(%) of disability assessed by Medical Board which is between 50% -75% the it is equivalent to the percentage to be reckoned for computation of disability element is 75%.
•  Hence in the present case the disability percentage of the Petitioner would automatically get revised to 75% as it is between 50%-75%. Consequently, the grounds on which the Petitioner’s request for disability pension has been rejected cannot be sustained. 
• It was also stated that there appears to be no justifiable reason even in terms of the Central Civil Services (Extraordinary Pensions) Rules as amended on 20th January, 1978 for not granting disability pension. It is clear that here is no distinction made between temporary and permanent disability in terms of Rule 3-A of the Civil Services (Extraordinary Pensions) Rules. 
• As regards the grant of ex-gratia compensation, the reasons for the Respondents not granting this benefit is the same, viz. that the Petitioner’s disability is temporary and the percentage is less than 60%. Accordingly, the above ground for rejection of the plea for ex-gratia compensation cannot be also sustained.

Issues:

• Whether the Respondents are right in characterising the disability of the Petitioner as a temporary one? 
• Whether the Petitioner is entitled for the extraordinary pension or disability pension and ex-gratia compensation?

 Held:

• The court held that the Respondents were in error in both the original communication dated 15th July, 2017 and the subsequent clarification dated 27th July 2017, stating that the Petitioner cannot be granted disability pension and ex-gratia compensation. 
• The court has issues directions to the Respondents to pass the necessary orders granting the Petitioner extraordinary pension as well as ex-gratia compensation, as is admissible under the rules, within a period of eight weeks from today. The arrears of pension be paid to the Petitioner before a period of 12 weeks from today, failing which the Respondents would be liable to pay simple interest at 6% per annum for the period of delay.
• The petition was disposed of in the above terms.