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2017 DIGILAW 559 (GAU)

TEJ SINGH MANGLA v. UNION OF INDIA

2017-05-11

HRISHIKESH ROY

body2017
JUDGEMENT AND ORDER : 1. Heard Mr. D.K. Sarmah, the learned counsel appearing for the petitioner. Mr. S.C. Keyal, the learned Asstt. Solicitor General of India appears for the respondents. 2. The petitioner was enrolled as a Rifleman (Water Carrier/Cook) in the 25 Assam Riffles on 6.11.1987 and after around 12 years of service, he was discharged on 31.5.2000 (Annexure-1), with medical pension. His invalid pension was fixed at Rs.1275/- P.M., under the P.P.O. No.234980012779/283749, dated 12.10.2000 (Annexure-2). Subsequently on the petitioner’s application, a medical examination was arranged for commutation of pension for the discharged personnel. 3. An application was made by the petitioner in July, 2009 (Annexure-4), for his reinstatement and his case was forwarded on 17.8.2009 (Annexure-5), to examine his entitlement to the disability pension. But as the disability for the petitioner was seen to be NIL, he was declared to be ineligible to receive disability pension under the impugned communication dated 9.9.2009 (Annexure-6). Hence the petitioner makes a plea for his reinstatement, since NIL disability is noticed by the medical board. 4. In the counter affidavit filed by the respondents on 11.5.2011, discharge of the petitioner with invalid pension, on account of the injury sustained by him on 1.3.1997, is confirmed. It is also averred that only when the degree of disability is 60% or above, a person become eligible for disability pension, under the CCS (Extra Ordinary Pension) Rules, 1972 (hereinafter referred to as ‘the CCS (EOP) Rules’). 5. However when a Rifleman is discharged on medical ground and he applies for invalid pension, under Rule 38 of the CCS (Pension) Rules (hereinafter referred to as ‘the CCS (Pension) Rules’), a medical board should certify the degree of incapacity, to verify whether the Rifleman is entitled to receive the invalid pension. Under Sub-Rule (4) of Rule 38 of the CCS (Pension) Rules, reinstatement of the discharged Govt. servant in a less labourous job is envisaged and if re-employment is not possible even in a lower post, the discharged personnel can be admitted to invalid pension. 6. The averments of the employer in the counter affidavit reflects that the Commandant of the 25 Assam Riffles explored the possibility of alternate employment of the petitioner but no appropriate job could be found for him. Thus it was stated that since he is already receiving the invalid pension, further relief cannot be granted. 6. The averments of the employer in the counter affidavit reflects that the Commandant of the 25 Assam Riffles explored the possibility of alternate employment of the petitioner but no appropriate job could be found for him. Thus it was stated that since he is already receiving the invalid pension, further relief cannot be granted. But it is seen from the employers’ response dated 9.9.2009 (Annexure-6) that although on account of the fracture head of proximal phalanx (Lt) (OPTD), the petitioner was granted invalid pension in May, 2000, currently he is not suffering from any disability. Therefore granting him invalid pension, under Rule 38(4) of the CCS (Pension) Rules, which requires permanent incapacity, will not be justified for the petitioner. If the petitioner is actually fit and is capable of discharging the duties of Rifleman (Water Carrier/Cook), there may be no necessity to consider any alternate job for him and in fact he can be taken back in service in the same post, from which he was discharged. 7. However Mr. S.C. Keyal, the learned Asstt. Solicitor General of India submits that even the Water Carriers/Cooks in the Assam Riffles Organization are treated as combatants and fitness and the ability to discharge the responsibilities of the job is necessary, for re-engagement of the discharged Rifleman (Water Carrier). 8. The petitioner had suffered fracture, while playing volleyball in the Unit on 1.3.1997 and as a result he was downgraded to LMC—BEE(P) category w.e.f. 28.12.1998, on account of the fractured head of proximal phalanx (Lt) (OPTD). Hence while his discharge on medical ground on 31.5.2000 may be justified at the relevant time, the NIL disability of the discharged Rifleman, cannot obviously be ignored by the authorities. The NIL disablement disentitle the petitioner from disability pension but if the petitioner is actually fit and is capable of discharging the duties of the (Water Carrier/Cook), his retention in service in the same post should have been considered and hence considering his re-engagement in a lower post at that time, was an unnecessary exercise. 9. For the foregoing discussion, the employer is required to ascertain as to whether the petitioner, on account of his NIL disability can be considered for re-engagement, as he was found ineligible for the disability pension. 9. For the foregoing discussion, the employer is required to ascertain as to whether the petitioner, on account of his NIL disability can be considered for re-engagement, as he was found ineligible for the disability pension. Therefore the competent authority of the Assam Riffles Organization, is directed to consider retention of the petitioner in his earlier job of Rifleman (Water Carrier/Cook), as he is found then to be medically fit, by the respondents themselves. To facilitate the consideration, the litigant will furnish a copy of this order along with the case papers, so that an appropriate decision on merit can be taken by the respondents, within eight weeks of receipt of representation. It is ordered accordingly. 10. With the above order, the case stands allowed. No cost. A copy of this order be furnished to Mr. S.C. Keyal, the learned Asstt. Solicitor General, for onward communication.