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Himachal Pradesh High Court · body

2012 DIGILAW 727 (HP)

Lehar Singh v. Union of India

2012-10-16

SURINDER SINGH

body2012
Judgment Surinder Singh, J (Oral) 1. By means of the present petition, the petitioner seeks mainly the following reliefs:- (a) Issue a writ, order or direction especially in the nature of mandamus for directing the respondents to consider the claim for compensation in lieu of disability as per rule 9(4) of Central Civil Services (Extra-Ordinary Pension) Rules, 1939. (b) For the issuance of a writ, order or direction especially in the nature of certiorari for quashing the letter dated 15.3.2011 (annexure P4) whereby the claim of petitioner was declined as the same is illegal, arbitrary and in violation of the principle of natural justice.” 2. The undisputed facts are that in the year 1988, the petitioner was enrolled in the 10th Battalion of Indo Tibet Board Police (ITBP). While performing his duties in the State of J&K to combat terrorism, he sustained bullet injuries in his right leg and stomach thus a Court of Inquiry (COI) was conducted to look into the bullet injures sustained by the petitioner along with his other three companions. The facts which came to light in such enquiry were that on 12.10.2000, the then Deputy Commandant (Operations) Shri Roop Singh Rana was posted in office at Kumar Post. He had received information that 5-6 terrorists made an entry in the office area. Sh. Roop Singh aforesaid called Inspector/GD Jagdish Ram Guleria and Inspector/GD Jeet Ram the Senior Most Subordinate Officers posted at the said post for discussion on this matter. Thereafter, they decided that since it had become dark thus, it would be difficult to prepare troops and to reach the spot. Therefore, a plan was prepared to seize and search (mission) in the morning of 12.10.2000. Thus, the area and the whole troop were divided in three parts. During such operation, suddenly, the firing on troops started from the terrorist side. The troops took their positions in that operation, the petitioner along with his three other companions sustained bullet injuries by a sudden attack. This report was submitted to the Commandant which was accepted on 8.1.2001 vide Annexure R2. 3. Because of the injuries received by the petitioner, he sustained 70% disability due to G.S.W (L) hip/abdomen as per opinion of Surgical Specialist of 92 BH (Army) Srinagar (J&K). The certificate is Annexure P1. 4. This report was submitted to the Commandant which was accepted on 8.1.2001 vide Annexure R2. 3. Because of the injuries received by the petitioner, he sustained 70% disability due to G.S.W (L) hip/abdomen as per opinion of Surgical Specialist of 92 BH (Army) Srinagar (J&K). The certificate is Annexure P1. 4. Despite the said disability, petitioner was retained in service and was posted in “A” Company of 10th Batallion ITBP Kimin (Arunachal). The petitioner sought voluntary retirement due to family problems. As per communication Annexure R1 dated 20.8.2009 addressed to the Commandant followed by another communication dated 31. 8. 2011 sent by the petitioner to him whereby he had already served three months’ notice on completing essential 20 years service in the organization for seeking voluntary retirement. Though the Commandant persuaded him not to seek voluntary retirement but the petitioner showed his unwillingness to remain in service due to his family problems. Accordingly, voluntary retirement notice was dispatched for recommendation to the quarter concerned. The request of the petitioner was acceded to. Accordingly, the petitioner retired from service on and w.e.f. 15th September, 2009. 5. Thereafter the petitioner represented to the Commandant to grant him incapability pension, vide letter dated 8.1.2011 addressed to the Deputy Inspector General SHQ (Itanagar) ITB Police affirmed that the petitioner got injured during an operation against terrorist at Verinag (J&K) on 12.10.2000. The treatment was provided to him at 92 Base Hospital at Srinagar where Doctors assessed his disability up to 70%. Thus a clarification was sought whether in view of the voluntary retirement, he could be granted invalidation pension, so that, his case is settled. Thereafter lot of correspondences were exchanged inter se and finally it was rejected on 15.3.2011 vide Annexure P4 only on the ground that the petitioner was not medically boarded-out, but had sought voluntary retirement. Hence the present petition. 6. Respondents resisted and contested the claim on the same ground as indicated in Annexure P4 dated 15.3.2011 that the petitioner sought voluntary retirement thus not entitled for pension. 7. In the present case, admittedly, Central Civil Services (Extra Ordinary Pension) Rules, 1939, in short “the Rules” as amended from time to time do apply. Hence the present petition. 6. Respondents resisted and contested the claim on the same ground as indicated in Annexure P4 dated 15.3.2011 that the petitioner sought voluntary retirement thus not entitled for pension. 7. In the present case, admittedly, Central Civil Services (Extra Ordinary Pension) Rules, 1939, in short “the Rules” as amended from time to time do apply. The relevant extract of Rule 9 sub-rule (4) of the said Rules reads as under:- “4) If the government servant is retained in service inspite of such disablement, he shall be paid a compensation in lump sum (in lieu of the disability pension) on the basis of disability pension admissible to him in accordance with the provision of sub-rule (2) of this Rule, by arriving at the capitalized value of such disability pension with reference to the Commutation Table, in force from time to time.” 8. According to the rule aforesaid, if a decision is taken by the Government to retain the government servant in service inspite of his such disablement, the government servant becomes entitled to claim lump sum compensation and the department is required to make the payment to the employee immediately thereafter. The bar, as provided under Rule 6 of CCS (EOP) Rules, 1939 does not apply to sub-rule 4 of Rule 9 of the said Rules as the right of the government servant crystallized on a date when a decision is taken by the department to retain him in service inspite of disability which is covered by Rule 3-A of the above rule. 9. It is admitted that the injuries sustained by the petitioner are attributable to the Government service and the injuries aforesaid had caused 70% disability to him. Thus, the case of the petitioner would fall under sub-rule (4) of rule 9. 10. The resistance offered by the respondents that the petitioner is not entitled to the benefit of this rule because of his seeking voluntary retirement cannot be accepted because he becomes entitled for the benefit of the said rule as he was retained in service for 9 years two months after he was declared 70% permanently disabled. 10. The resistance offered by the respondents that the petitioner is not entitled to the benefit of this rule because of his seeking voluntary retirement cannot be accepted because he becomes entitled for the benefit of the said rule as he was retained in service for 9 years two months after he was declared 70% permanently disabled. Further, the above facts reveal that when the petitioner had applied for the voluntary retirement, even he was being persuaded to remain in service but because of his family circumstances and also having completed 20 years of service, he insisted for seeking voluntary retirement after giving three months’ statutory notice which was also accepted. 11. Further, Rule 9 (2) deals with altogether different situation when a person is medically boarded-out which is different from Rule 9 (4) of the said Rules. 12. In view of the afore-stated position, the petitioner is held entitled to lump sum compensation under Rule 9 (4) of the Central Civil Service (Extra-Ordinary Pension) Rules, 1939 from the date when the decision was taken by the respondents to retain the petitioner in service inspite of disablement. Accordingly annexure P4 dated 15.3.2011 is set aside. 13. In result, petition is allowed, the respondents are directed to assess the amount of compensation in accordance with rule 9 (4) of the Rules and release the same within a period of three months from the date of receipt of the certified copy of this judgment. The petitioner shall also be entitled to the interest @ 8% from the date of accrual till the date of its payment on the amount of compensation, so assessed. 14. The petition stands accordingly disposed of with the above directions, so also the pending applications, if any.