Judgment : This writ petition is filed by respondents on Original Application No. 270 of 2007 on the file of the Central Administrative Tribunal, Bangalore Bench (hereinafter called as ‘the CAT’) being aggrieved by the order dated 20-6-2008 wherein the CAT has allowed the application filed by respondent 1 herein and has set aside the impugned order and directed the respondents to reinstate the applicant in service with all consequential benefits together with continuity of service. 2. The respondent 1 herein filed O.A No. 270 of 2007 on the file of the CAT being aggrieved by the order dated 23-1-2007 wherein the applicant was relieved from service granting disability pension on the ground of medical disability. Respondent 1 herein was working as a Security Supervisor and he joined service on 5-12-1991 in the office of the second respondent in the application. In the month of December 2004, he suffered a mild heart attack and he underwent Coronery Artery Bypass performed on Beating Heart on 21-4-2004. After availing medical leave, he reported for duty on 1-8-2005 with a Medical Fitness Certificate dated 31-7-2005. That on 3-4-2006 the applicant was issued with a memo alleging that he failed to maintain required security measures and the applicant submitted the explanation dated 10-4-2006 and 19-8-2006 and requested to constitute a High Powered Enquiry Committed to prove the allegations leveled against him and to enquire the misdeeds of Dr. P. Chowdappa, the then Head-in-charge of the station. Based on the said explanation the applicant’s case was referred to the Medical Board, Victoria Hospital, Bangalore and obtained opinion ‘not fit to be continued in service’ and vide office order dated 23-1-2007 the applicant was relieved of his duties with effect from the afternoon of 23-1-2007 under Rule 38 of the Central Civil Services (Pension) Rules, 1973 (hereinafter referred to as the ‘Pension Rules’). 3. The said order was impugned before the CAT contending that the order has been passed without following the procedure laid down under Rule 38 of the Pension Rules and the order is arbitrary, illegal and contrary to law and the impugned order is passed at the instance of Dr. P. Chowdappa, the then Head-in-charge of the Station, respondent 4 in the application, due to personal grudge against the applicant and hence the applicant sought for quashing of the order dated 23-1-2007. 4. P. Chowdappa, the then Head-in-charge of the Station, respondent 4 in the application, due to personal grudge against the applicant and hence the applicant sought for quashing of the order dated 23-1-2007. 4. The application was resisted by the respondents by admitting that the applicant was in service of the respondents and denied the allegation made against respondent 4. It was contended that the applicant was admitted to Sagar Appollo Hospital on 16-12-2004 and he underwent CABG on 21-4-2005 at Wockhard Hospital and he was a chronic patient. The applicant was applying for leave frequently and he created some unpleasant atmosphere and he was called upon to give explanation. Since the explanation submitted by him was not satisfactory and he had admitted that he was a chronic patient, the respondents thought it fit to refer the matter to the Medical Board about his fitness to continue in service or not. Based on the medical report dated 3-11-2006, the second respondent issued an office order dated 30-12-2006. The applicant referring the said office order, submitted a letter to the second respondent on 9-1-2007 requesting to consider his case for invalid pension benefit as to avail retirement benefit so as to avail retirement benefit from the service of the applicant. Accordingly, the impugned order dated 23-1-2007 was issued under Rule 38 of the Pension Rules. The said order passed is in accordance with law and does not suffer from any error or illegality and the original application is not maintainable and sought for dismissal of the application. 5. The applicant has filed rejoinder contending that he has rejected the reply statement. His signature was obtained on blank papers and on some unfilled form on 9-1-2006 on the pretext of settling the applicant’s provident fund and GILS amount and he had also asked for submission of joint photograph of the applicant and his wife and Xerox copy of his pass book of State Bank of India, Banaswadi Branch, Bangalore, and that with the mala fide intention, respondents have fabricated and filled blank forms to suit their convenience to settle the benefits and, therefore, he refused to receive the amounts sent by the respondents. 6. 6. The CAT after considering the contentions of the learned Counsel for the parties and scrutinising the provisions of Rule 38 of the Pension Rules and the material on record held that the impugned order had not been passed in compliance with the provisions of Rule 38 of the Pension Rules as there was no compliance with the Rule 38(2) of the Pension Rules and held that the impugned order suffers from infirmity as the same is unsustainable in the eye of law. Accordingly, the impugned order was quashed and the petitioners herein were directed to reinstate the applicant in service with all consequential benefits together with continuity of service. Being aggrieved by the said order of the CAT dated 20-6-2008 the respondents have preferred this petition. 7. We have heard the learned Counsel for the writ petitioners and the learned Counsel for the Caveator-respondent 1. 8. The learned Counsel for the writ petitioners submitted that the applicant-respondent 1 herein himself has made an application along with the medical certificate seeking for invalid pension and the order has been passed in compliance with Rule 38 of the Pension Rules and the CAT was not justified in holding that there was no compliance of Rule 38 of the Pension Rules. In any view of the matter, the applicant was not entitled to reinstatement as he has accepted the relieving order and has been relieved from service and if there is non-compliance of the provisions of Rule 38 of the Pension Rules, opportunity should have been given to the petitioner to comply with the rules and pass such orders if the impugned order was found to be unsustainable and therefore, the impugned order is liable to be set aside. 9. The learned Counsel for the writ petitioners also submitted that the applicant has challenged only the relieving order and not the order of discharge and wherefore, the impugned order passed by the CAT is unsustainable. 9. The learned Counsel for the writ petitioners also submitted that the applicant has challenged only the relieving order and not the order of discharge and wherefore, the impugned order passed by the CAT is unsustainable. 9-A. In response to the arguments of the learned Counsel appearing for the writ petitioners, the Counsel appearing for the respondent 1 submitted that, perusal of Rule 38 of the Pension Rules would clearly show that there is non-compliance of Rule 38(2) of the Pension Rules and the petitioners have also not complied with Rule 38(4) of the Pension Rules and the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the impugned order could not have been passed without compliance with Rule 38 of the Pension Rules which is mandatory and wherefore, the order passed by the CAT is justified and does not call for interference in this writ petition. 10. We have given careful consideration to the contentions of the learned Counsel appearing for the parties and scrutinized the material on record. 11. The material on record would clearly show that the fact that applicant was in service of the petitioner and he has been relieved from service by issuing the endorsement, impugned in the application dated 23-1-2007 granting invalid pension under Rule 38 of the Pension Rules, is indisputable. The question that arose for determination before the CAT was as to whether there was compliance of the provisions of Rule 38 of the Pension Rules while issuing the impugned order. Rule 38 of the Pension Rules reads as follows.- “Rule 38. Invalid Pension.-(1) Invalid pension may be granted if a Government servant retires from the service on account of any bodily or mental infirmity which permanently incapacitates him for the service. (2) A Government servant applying for an invalid pension shall submit medical certificate of incapacity from the following medical authority namely.- (a) a Medical Board in the case of Gazetted Government servant and of a non-Gazetted Government servant whose pay, as defined in Rule 9(2) of the Fundamental Rules, exceeds (Two thousand and two hundred rupees) per mensem; (b) Civil Surgeon or a District Medical Officer or Medical Officer of equivalent status in other cases. (3) The form of the Medical Certificate to be granted by the Medical Authority specified in sub-rule (2) shall be as in Form 23. (3) The form of the Medical Certificate to be granted by the Medical Authority specified in sub-rule (2) shall be as in Form 23. (4) Where the Medical Authority referred to in sub-rule (2) has declared a Government servant fit for further service of less laborious character than that which he had been doing, he should, provided he is willing to be so employed, be employed on lower post and if there be no post and if there be no means of employing him even on a lower post, he may be admitted to invalid pension”. 12. It is clear from the above said Rules, Rule 38 of the Pension Rules that, when an application is filed by the Government servant applying for an invalid pension, medical certificate of incapacity from the Medical Board in case of Gazatted Government servant and of a non-Gazetted Government servant whose pay as defined in Rule 9(21) of the Fundamental Rules, exceeds rupees two thousand and two hundred rupees per mensem, has to be produced. 13. The said Rule 38(2)(a) of the Pension Rules is applicable to the applicant-the respondent 1 herein as he was drawing salary of more than Rs. 2,200/- per mensem and the scrutiny of the Competent Authority was not obtained as required under Rule 38 (2)(a) of the Pension Rules and the orders has been passed on the basis of the medical certificates produced by the applicant which was not issued by the Competent Authority in the prescribed form and wherefore, the CAT has rightly held that there is noncompliance of Rule 38(2)(a) of the Pension Rules. 14. The material on record would clearly show that there is non-compliance with Rule 38 of the Pension Rules. Further, the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter called as the ‘Act of 1995”) has also not been followed. Section 47 of the said Act reads as follows.- “47. 14. The material on record would clearly show that there is non-compliance with Rule 38 of the Pension Rules. Further, the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter called as the ‘Act of 1995”) has also not been followed. Section 47 of the said Act reads as follows.- “47. Non-discrimination in Government employments.-(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (3) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section”. 15. It is clear from the above said provisions of the Act, 1995 that person who has acquired disability during his service cannot be removed from service unless he has provided with an opportunity of shifting to some other post with the same pay scale and service benefits as per the provisions referred to above and it is with this intention that Rule 38(4) of the Pension Rules also provides that the Medical Board has also to certify as to whether the service of the person who has sustained disability during service is able to do any other job in the establishment as the said provision under Rule 38(4) clearly provides that the Medical Authority should also certify as to whether the Government servant is fit for further service of less labourious character than that which he provided lower post and if there is no means of employing him even on lower post, he may be admitted to invalid pension. 16. 16. The material on record clearly show that there is clear violation of Rule 38 of the Pension Rules and Section 47 of the Act, 1995 and wherefore, the order passed by the Central Administrative Tribunal insofar as it has held that the order passed by the respondents relieving him from service by granting invalid pension cannot be sustained and the same is liable to be set aside. However, having regard to the fact that the CAT having found that there is violation of provisions of Rule 38 of the Pension Rules also in view of the finding that there is violation of Section 47 of the Act, 1995, it is appropriate that the matter is remitted to the Disciplinary Authority for passing fresh orders in accordance with law in compliance with Rule 38 of the Pension Rules and Section 47 of the Act, 1995 and to that extent the order passed by the CAT ordering reinstatement of the applicant into service with all consequential benefits together with continuity of service is liable to be modified. 17. Accordingly, we pass the following order.- (i) The petition is allowed in part; (ii) The finding of the CAT quashing the order impugned dated 23-1-2007 admitting respondent 1 for disability pension is set aside and the matter is remitted to the Disciplinary Authority for fresh consideration of the case of the applicant in strict compliance with Rule 38 of the Pension Rules and Section 47 of the Act, 1995 and to that extent the order passed by the CAT is set aside. Accordingly, the writ petition is disposed of with the above said observations.