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Meghalaya High Court · body

2017 DIGILAW 9 (MEG)

Manohar Singh v. Union of India

2017-03-02

VED PRAKASH VAISH

body2017
JUDGMENT : Ved Prakash Vaish, J. The petitioner, Shri Manohar Singh has filed the present writ petition for issuing directions to the respondents to absorb him in alternative job and also for granting him disability and invalid pension along with arrears from the date of discharge. 2. The facts as set out in the petition are that the petitioner was appointed by the respondents as Sepoy (GD) on 27th February, 1987. He successfully completed the training and thereafter he was posted at Silchar (Assam). 3. It is stated that while continuing in service on 20th May, 1987 the petitioner was found suffering from pleural effusion (Rt.) with complaints of fever, cough with expectoration and chest pain right side. He was admitted at Military Hospital, Landsdowne for treatment. 4. The petitioner was transferred to Military Hospital, Roorki on 22nd May, 1987 as his case was Pneumonitis (Rt.). He was again referred to Military Hospital Meerut for the opinion of the Medical Board. The Medical Board after checking the petitioner found that he was not physically fit due to the illness as his disability was assessed to 40%. Further, the Medical Board opined that the aforesaid 40% disability is attributable to service caused due to strenuous physical exertion associated with basic training. 5. It is also stated that on 3rd May, 1988 the petitioner was discharged from service on the recommendation of Medical Boards on the ground that he is not fit for service as his disability was assessed to 40%. It is stated that at the time of discharge the petitioner was assured that he would be given alternative shelter job and he would be given disability and invalid pension as per rules. 6. It is further stated that despite lapse of considerable time the respondents neither absorb the petitioner in shelter job nor gave him disability and invalid pension. The petitioner made several representations to the respondents and prayed for providing him alternative job so that he may earn his livelihood and for granting him disability and invalid pension. 7. It is further stated that vide letter dated 21st November, 2006 the respondents informed the petitioner that he was declared as deserter and therefore he was dismissed from service on 1st May, 1988. 7. It is further stated that vide letter dated 21st November, 2006 the respondents informed the petitioner that he was declared as deserter and therefore he was dismissed from service on 1st May, 1988. The petitioner replied to the respondents stating that he was discharged from service with 40% disability with the assurance to absorb him in alternative job and he was never declared deserter as mentioned in the letter. It is stated that the respondents did not pay any heed to the request of the petitioner. 8. The petitioner was constrained to serve a legal notice dated 10th February, 2012 upon the respondents requiring them to give him an alternative job as well as grant him the disability and invalid pension. 9. The respondents, in response to the legal notice dated 10th February, 2012, vide letter dated 10th March, 2012 asked the petitioner to submit all the relevant documents for processing his case for grant of necessary benefits. The petitioner submitted all relevant documents before the respondents. The petitioner stated that he is protected under Section-47 of the Persons with Disabilities (Equal opportunities Protection of Rights and full Participation) Act, 1995 and Section-38 of the Central Civil Services (Pension) Rules, 1972. 10. Since there was no positive response from the respondents, the petitioner was constrained to file a writ petition No. 2535 of 2013 before the High of Himachal Pradesh at Shimla. The said writ petition was disposed of as not pressed with liberty to the petitioner to file the same on the same cause of action before the appropriate forum. 11. It is also stated that the petitioner, thereafter, filed a Writ Petition before the Delhi High Court, but was constrained to withdraw the same on the ground of jurisdiction with liberty to file it in the appropriate Court. Hence the present petition. 12. Learned counsel for the petitioner contended that the respondents ought to have absorbed the petitioner in alternative job corresponding to his disability especially in view of the fact that the disability was suffered by him during the course of employment. 13. Hence the present petition. 12. Learned counsel for the petitioner contended that the respondents ought to have absorbed the petitioner in alternative job corresponding to his disability especially in view of the fact that the disability was suffered by him during the course of employment. 13. It is further argued on behalf of the petitioner that the decision of the respondents in declaring the petitioner as a deserter is illegal and arbitrary inasmuch as the petitioner never deserted his work but was only relieved by way of discharge due to disability that occurred during the course of employment with the respondent. 14. Learned counsel for the petitioner further argued that the respondents have acted illegally, arbitrary and in excess of jurisdiction not vested in them by wrongly holding the petitioner as deserter without any reason and thereby depriving him of his rights, entitlement and benefits as envisaged under the law. 15. Learned counsel for the petitioner also contended that in not providing the disability and invalid pension, the action of the respondents is illegally and arbitrary depriving the petitioner of his rights and benefits under the law. 16. Per contra, the petition has been opposed by the respondents and affidavit-in-opposition has been filed. 17. It is stated by the respondents that while under-going training at Garhwal Rifles Regimental Centre, Landsdowne, Uttrakhand on 20th May, 1987, the petitioner felt sick with complaints of fever, cough with expectoration and chest pain etc. for which he was admitted in Military Hospital Landsdowne from where he was referred to Military Hospital, Roorkee and Military Hospital, Meerut for specialist's treatment. The petitioner was diagnosed to be suffering from Pleural Effusion (Rt.). Despite all possible medical treatment he could not regain his medical and physical fitness to undergo further recruit training. 18. It is also stated by the respondents that Classified Medical Specialist of Military Hospital, Meerut after thorough examination vide opinion dated 10th October, 1987 stated that being a recruit, he is not fit for service and recommended him to be invalided out of service in Low Medical Category EEE. Pursuant to the Specialist's opinion, the petitioner was invalided out of service w.e.f. 03rd May, 1988. 19. It is further stated by the respondents that the petitioner had 14 months and 11 days of qualifying service at his credit at the time of discharge from service. Pursuant to the Specialist's opinion, the petitioner was invalided out of service w.e.f. 03rd May, 1988. 19. It is further stated by the respondents that the petitioner had 14 months and 11 days of qualifying service at his credit at the time of discharge from service. For grant of invalid pension minimum 10 years service is mandatory under Rule-38 read in conjunction with Rule-49 of Central Civil Services (Pension) Rules, 1972. 20. It is further stated by the respondents that the petitioner is not eligible for grant of disability pension under the Central Civil Services ( Extra Ordinary Pension) Rules since as per Rule-3 (A) and 9 (3) of Central Civil Services ( Extra Ordinary Pension) Rules the disability should be 60% and above whereas the petitioner has only 40% disability. 21. Learned counsel for the respondents vehemtly argued that the petitioner has approached this Court after a lapse of 25 years and the petition is liable to be dismissed on the ground of delay and laches. It is also contended that the petitioner has suppressed the material facts by wrongly stating that he has successfully completed his training. 22. I have heard the learned counsel for both the parties and carefully perused the material available on record. 23. The petitioner was appointed with the respondents on 27th February, 1987 and was enrolled in Assam Rifles. While undergoing training at Landsdowne, Uttrakhand, he fell ill and was diagnosed to be suffering from Pleural Effusion (Rt.). The Medical Board after examining the petitioner opined that he was fit to be invalided out of service in Low Medical Category EEE. On the recommendation of the Medical Board the petitioner was discharged from service on 03rd May, 1988. 24. The petitioner has approached this Court in the year 2014 whereas he was discharged from service in May, 1988. Though he had filed writ petition in the High Court of Himachal Pradesh at Shimla, being WP(C) No. 2535 of 2013-D but that too was filed in the year 2013. Thereafter, writ petition bearing WP(C) No. 1683/2014 was filed in the High Court of Delhi in the year 2014. No cogent explanation is offered by the petitioner in the writ petition for approaching the Court after almost 25 years. 25. Thereafter, writ petition bearing WP(C) No. 1683/2014 was filed in the High Court of Delhi in the year 2014. No cogent explanation is offered by the petitioner in the writ petition for approaching the Court after almost 25 years. 25. The petitioner has also not placed any document on record to show that he communicated with the respondents till he received a letter dated 21st November, 2006 from the respondents. Apart from making bald averments in the petition that he made various representations to the respondents for providing him an alternative job and for disability and invalid pension, no document or representation is placed on record by the petitioner. This shows that the petitioner sat quite after discharge from service in May, 1988. The averments in the petition are absolutely silent and nothing had been spelt out why the long delay had occurred. The delay in filing the writ petition is un-explained. 26. In the case of 'State of T.N. v. Seshachalam' reported as (2007) 10 SCC 137 , the Hon'ble Supreme Court, testing the equality clause on the backdrop of delay and laches pertaining to grant of service benefit, has ruled thus: "16. Some of the respondents might have filed representations but filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant.............." 27. Thus, the principle of delay and laches should not be lightly brushed aside. A Court while exercising writ jurisdiction is required to weigh the explanation offered and acceptability of the same. The Court should bear in mind that it is exercising extra-ordinary and equitable jurisdiction. Thus, the principle of delay and laches should not be lightly brushed aside. A Court while exercising writ jurisdiction is required to weigh the explanation offered and acceptability of the same. The Court should bear in mind that it is exercising extra-ordinary and equitable jurisdiction. As a Constitutional Court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. 28. Apart from the petition suffered from delay and laches, on merit also, the petitioner is not entitled to any relief. The petitioner had rendered only 14 months and 11 days of qualifying service. Rule-38 read in conjunction with Rule 49 (2) of Central Civil Services (Pension) rules, 1972, minimum 10 years service is mandatory for grant of invalid pension. 29. The petitioner has stated that he has suffered 40% of disability and claims for disability pension. In terms of Rule 3 (A) and 9 (3) of Central Civil Services (Extra Ordinary Pension) Rules, the disability should be attributable to government service and the disability should be 60% and above for grant of disability pension. The said Rules 3 (A) and 9 (3) are reproduced below: "3-A. (1)(a) Disablement shall be accepted as due to Government service provided that it is certified that it is due to wound, injury or disease which- (i) is attributable to Government service, or (ii) existed before or arose during Government service and has been and remains aggravated thereby.........." "9. (1) When disablement of a Government servant is conceded as due to Government service in terms of Rule-3-A, he shall be awarded disability pension in terms of sub-rules (2) or (3) or lump sum compensation in terms of sub-rule (4) of this Rule in accordance with the percentage of disability (suffered by him) as certified by the Medical Authority concerned. (2) .... (2) .... (3) If the Government servant is boarded out of Government service on account of such disablement, and further if, the percentage of his permanent disability as certified by the Medical Authority is not less than 60% his monthly disability pension shall be related to the family pension admissible to the widow (in case he had died instead of being disabled) in the manner laid down in O.M. No. 23 (15)-E.V (A)-Pt. IV, dated the 20th January, 1978..........." 30. In the instant case, admittedly, the petitioner has only 40% disability which, from a bare reading of the aforesaid Rules, dis-entitles him for grant of disability pension. 31. The argument of the petitioner that he is protected under Section-47 of the Disabilities (Equal opportunities Protection of Rights and Full Participation) Act, 1995 cannot be accepted for the reason that Assam Rifles, where the petitioner was enrolled, is exempted from application of the provisions of Section-38 and Section-47 of the Disabilities (Equal opportunities Protection of Rights and full Participation) Act, 1995 vide Government of India Gazette Notification No. S.O. 995 (E), dated 10th September, 2002 being an Armed force sick persons with disabilities cannot carry arms and cannot be employed on security duties. 32. The petitioner was discharged from service because he was found fit to be invalided out of service on Low Medical Category EEE by the Medical Board. The respondents have categorically stated that Assam Rifles is a combatised force and alternative job in a combatant post can be given only after successfully completion of training. According to the respondents, the petitioner has not completed his basic training and since he has failed to complete the training, he could not be appointed to any post in Assam Rifles as all the posts are combatised and completion of training is a primary requirement for continuation of service as a combatant in the force employment. The petitioner cannot be provided alternative job as according to the respondents there are no posts available in civil stream. 33. In the light of the aforesaid discussion, I do not find any merit in the present petition and the same is hereby dismissed. 34. There shall be no order to costs.