JUDGMENT : SATYEN VAIDYA, J. 1. By way of instant appeal, the appellant has assailed the judgment dated 17.12.2018 passed by Hon'ble Single Judge in case CWP No. 1643 of 2016 titled as Bhisham Singh vs. Union of India and Others. 2. The facts of the case reveal weary tale of a soldier who instead of fighting on the battlefield had to fight in the Courts. His fight against employer, for his lawful dues, started in the year 2000 and after 21 years, the battle still continues. 3. Appellant was a constable in Indo-Tibetan Police Force. He was recruited on 04.05.1970. In 1971 appellant suffered an injury to his left eye. Though, the injury did not cause any immediate damage, but the appellant suffered loss of vision in 1980. Despite treatment, he could not regain lost vision. It is not denied that the loss of vision suffered by the appellant was caused due to risk of service and the injury was sustained by him while discharging Government duty. Appellant was again medically examined on 06.12.1983 and was found to be physically disabled under category BEE (P). He was declared unfit for duties requiring binocular vision and was asked to discharge non-combatant general duty. On 27.8.1996, appellant was again examined by Medical Board and no further deterioration in medical condition of the appellant was reported. The Medical Board, however, opined that appellant was not fit for the post of Constable, even in general duty cadre. Appellant, apprehending his removal from service, applied for extension of one year in service and on completion of extended period, sought voluntary retirement w.e.f. 03.05.1998, by which date, he was going to complete 28 years of service so that, by addition of 5 years qualifying service, he could get full pension. His request was declined and instead was served with discharge notice dated 03.04.1997. Appellant submitted representation against proposed discharge and requested for fresh Medical Board, but nothing worked and he was finally discharged on 15.05.1997. Appellant was allowed invalid pension under Rules 38 of CCS (Pension Rules). He was granted service pension as also Extraordinary Disability Pension. 4. Appellant assailed his discharge order before this Court in CWP No. 100 of 2000. Learned Single Judge of this Court allowed the petition in following terms: “5. Appellant was allowed invalid pension under Rules 38 of CCS (Pension Rules). He was granted service pension as also Extraordinary Disability Pension. 4. Appellant assailed his discharge order before this Court in CWP No. 100 of 2000. Learned Single Judge of this Court allowed the petition in following terms: “5. As a sequel to the above discussion, writ petition is allowed, impugned discharge order dated 15.5.1997 (Annexure P-12) is quashed and the following directions are issued to the respondents: 1. The petitioner be treated to have continued in service upto the date when he would have completed 28 years of service, i.e. 3.5.1998 and be paid salary and all other allowances etc. from 16.5.1997 to the said date. 2. On and with effect from the day next following the date on which the petitioner would have completed 28 years of service, i.e. 4.5.1998, he be treated to have voluntarily retired under the relevant provisions of Civil Services Pension Rules, 1972 and given the benefits of Rule 48-B and pension and retiral benefits be paid to him accordingly, from such date. 3. Arrears of salary, in accordance with direction No. 1 and arrears of retiral benefits, in terms of direction No. 2, be paid to the petitioner within three months with simple interest at the rate of 9% per annum.” 5. In compliance to aforesaid judgment, appellant was treated to have continued in service up-to 03.05.1998 and was retired w.e.f. 04.05.1998. Service pension was allowed in his favour. Appellant, however, was not granted disability pension, which resulted in filing of another writ petition before this Court by appellant being CWP No. 3753 of 2009. The said petition was disposed of vide judgment dated 18.03.2011 by learned Single Judge of this Court by observing as under: “8 When the petitioner had been granted invalid pension, in addition to service pension on his discharge, on completing 27 years of qualifying service, there cannot be any reason for not granting him extra ordinary disability pension, on completing his 33 years service, i.e. 28 years actual service and 5 years addition to that service, under Rule 48-B. Benefit of extra ordinary pension is available to all the employees, irrespective of the fact whether they are retired pre mature or on completion of maximum qualifying service, entitling them to full service pension. 9. 9. As a result of the above discussion, writ petition is allowed and respondents are directed to consider the case of the petitioner for grant of extraordinary disability pension and to pass appropriate orders, within three months, from the date of this order. A copy of this order be made available to learned Assistant Solicitor General of India, Shri Sandeep Sharma, by 21.3.2011 positively, so that he may send the same to the concerned authorities immediately.” 6. The aforesaid judgment was not implemented by the employer within the time prescribed therein. Appellant filed Contempt Petition being COPC No. 84 of 2012 in this Court. During the pendency of contempt petition, respondents passed consideration order. In view of such development, contempt petition was disposed of in following terms: “Having heard learned counsel for the parties as also perused the record, I am of the considered view that no case for interference is made out in the present petition, more so, for the reason that authorities have now passed order dated 10.3.2012 (Annexure R-1), pursuant to the directions issued by this Court vide judgment dated 18.3.2011, passed in CWP No. 3753 of 2009, titled as Bhisham Singh vs. Union of India. As such, it cannot be said that the conduct of respondents-authorities is contumacious. As such, petition is dismissed. However, it shall be open for the petitioner to assail the order independently if need so arises. Pending applications, if any, also stand disposed of.” 7. Appellant then filed Execution Petition No. 09 of 2014, which was also disposed of by the Division Bench of this Court in following terms: “5. This Court cannot direct execution which is not in tune with order, dated 7th January, 2014, made by the learned Single Judge in COPC No. 84 of 2012. Even otherwise, in terms of the mandate of Para-9 of order, dated 18th March, 2011, made by the Writ Court in CWP No. 3753 of 2009, the respondents were to consider the case of the petitioner, which they have done and passed the consideration order, dated 10th March, 2012. It is for the petitioner to seek appropriate remedy, if still aggrieved.” 8. The appellant, on the strength observations made in aforesaid orders, then filed CWP No. 1643 of 2016 seeking following reliefs: 1. It is for the petitioner to seek appropriate remedy, if still aggrieved.” 8. The appellant, on the strength observations made in aforesaid orders, then filed CWP No. 1643 of 2016 seeking following reliefs: 1. Order dated 10.03.2012 of respondent No. 3, Annex P-26, be quashed as ultra-vires as set out in ground Para 4.1 and 4.2 and the intra-vires order dated 01.08.2014 of respondent No. 2, Annex P-27 be directed to be modified and implemented forthwith as set out in case history Para 2.7 above. 2. Petitioner's disability pension under CCS (EOP) Rules be got released to him as set out in ground Para 4.3 and 4.4 above, @ Rs. 2,500/- p.m. w.e.f. 04.05.1998 (5th PC) and then @ Rs. 7,000/- p.m. w.e.f. 01.01.2006 (6th PC). 3. Recovery of Rs. 27,816/- ordered on made/vide Annex P3 from petitioner's service pension be set aside and refunded to the petitioner as set out in ground Para 4.5 above. 4. Interest @ of 9% pa with bi-annual compounding on 30th June and 31st December next on each accrual of relief Nos. 1 to 3 be allowed to the petitioners as set out in ground Para 4.7 above. 5. Penal stricture be recorded severally against the misconduct of respondent No. 3 (the then officer) as set out in ground Para 4.9 to be read with case history Para 2.7 and ground Paras 4.1 and 4.2 above. 6. Compensatory cost of this petition be allowed to the petitioner in the premise of his post retiral suffering as such. 7. Any other or further relief deemed just and proper be allowed to the petitioner qua the respondents jointly and/or severally including the factum of 7th Pay Commission set out in CWP Para 3.4 above. 9. At this stage, it is relevant to refer to the contents of order dated 10.03.2012 vide which the employer had rejected the case of appellant for grant of disability pension. The relevant portion of said order reads as under: “4. As per the provisions contained in Extraordinary Pension Rule 9(3) of CCS Pension Rules 1972 disability should not be less than 60% for grant of Extraordinary (disability) Pension whereas in respect of the above individual only 40 % disability has been assessed. 5. The relevant portion of said order reads as under: “4. As per the provisions contained in Extraordinary Pension Rule 9(3) of CCS Pension Rules 1972 disability should not be less than 60% for grant of Extraordinary (disability) Pension whereas in respect of the above individual only 40 % disability has been assessed. 5. That above referred letters of the Director (Medical), Department General ITB Police Force, Commandant Base Hospital ITB Police Force, New Delhi and the opinion of the Review Medical Board, the total disability in Respect of No. 700020107 Ex.CT/GD Bhisham Singh of 9th BN has been assessed only 40%. Hence as per the provisions of extraordinary Pension Rule 9(3) of CCS Pension Rule 1972, the individual is not eligible for disability pension. Hence as per the rules the individual cannot be granted the benefit of Disability Pension.” 10. Learned Single Judge vide impugned judgment proceeded to dismiss the CWP No. 1643 of 2016 mainly on the ground that in view of the order dated 18.03.2011 passed in CWP No. 3753 of 2009 and order dated 23.05.2016 passed in Execution Petition No. 09/2014, the cause of action for assailing order dated 10.03.2012 denying the benefits of Extraordinary Disability Pension did not survive. 11. We have heard learned counsel for the parties and have gone through the record. 12. It is not in dispute that the appellant had suffered disability to the extent of 40% as a result of eye injury suffered by him, as noticed above. There also is no dispute to the proposition that a person can not avail the benefit of disability pension in addition to service pension. 13. Perusal of order dated 10.03.2012 reveals that the reason for disallowing the benefit of disability pension to the petitioner was that under Rule 9(3) of Extraordinary Pension Rules, the disability pension was not permissible where the disability was less than 60%. Since the appellant had 40% disability, his claim was rejected on this ground alone. This fact appears to have not been brought to the notice of learned Single Judge and on such premise, learned Single Judge was persuaded to observe that no cause of action survived in favour of the appellant to challenge the order dated 10.03.2012. 14. Since the appellant had 40% disability, his claim was rejected on this ground alone. This fact appears to have not been brought to the notice of learned Single Judge and on such premise, learned Single Judge was persuaded to observe that no cause of action survived in favour of the appellant to challenge the order dated 10.03.2012. 14. We, however, find ourselves in disagreement with the reasons recorded by learned Single Judge for dismissal of CWP No. 1643 of 2016, for the reason that the Central Civil Services Extraordinary Pension Rules does not lay any such prescription as mentioned in order dated 10.03.2012. Appellant was retired on 03.05.1998, on which date, the relevant provisions of Extraordinary Pension Rules were effective with modification as recommended by the Central Pay Commission and made applicable w.e.f. 01.01.1996. The Government of India had accepted the recommendations of such pay commission on 11.09.1998. The cases for determination of compensation payable on death or disability were broadly categorized in five distinct categories and the category relevant for instant case is Category ‘C’ which reads as under: “Death or disability due to accidents in the performance of duties. Some examples are accidents while traveling on duty in Government vehicles or public transport, a journey on duty is performed by service aircraft, mishaps at sea, electrocution while on duty, etc.” 15. The scale of disability pension in the case of Category ‘C’ was prescribed as under: “(1) Normal pension and gratuity admissible under the CCS (Pension) Rules, 1972, plus disability pension equal to 30% of basic pay, for 100% disability. (2) For lower percentage of disability, the monthly disability pension shall be proportionately lower as at present, provided that where permanent disability is not less than 60% the total pension [i.e. pension or service gratuity admissible under the ordinary pension rules plus disability pension as indicated at (1) above] shall not be less than 60% of basic pay, subject to a minimum of Rs. 2,500.” 16. Thus, the Central Civil Services Extraordinary Pension Rules nowhere provides that the person with disability less than 60% was not be eligible for grant of benefit thereunder. Rather, it has been prescribed that for 100% disability, the disability pension will be equal to 30% of basic pay and for lower percentage of disability, the monthly disability pension will be proportionately lower. Rather, it has been prescribed that for 100% disability, the disability pension will be equal to 30% of basic pay and for lower percentage of disability, the monthly disability pension will be proportionately lower. Further, it has been provided that where the permanent disability is more than 60% the total pension [i.e. pension or service gratuity admissible under the Extraordinary Pension Rules plus disability pension as indicated at (1) above] shall not less than 60% of basic pay, subject to a minimum of Rs. 2,500/-. A plain reading of the aforesaid provisions makes it clear that for every percentage of disability, the disability pension is payable but the rates and incidence is different. 17. Further, on the recommendations of the 5th Pay Commission, the Government also decided as under: “5. The Fifth Central Pay Commission also suggested certain procedural changes. These have also been considered by the Government. The President is now pleased to decide as under: (i) The extent of disability or functional incapacity shall be determined in the following manner for purposes of computing the disability element forming part of benefits: Percentage of disability assessed by Medical Board Percentage to be reckoned for computation of disability element Less than 50 50 Between 50 and 75 75 Between 76 and 100 100 18. By virtue of aforesaid decision, the percentage of disability to be reckoned for computation of disability element has been prescribed and even in the cases of disability assessed by Medical Board at less than 50% the same was to be reckoned at 50%.This provision strengthens the observations made hereinabove and breaks the allegory created vide order dated 10.03.2012 denying the benefits to the appellant. In case, the disability pension was not payable to the persons having disability less than 60% there was no use to consider the disabilities less than 60% for computation of disability element. 19. The relevant rules dealing with the grant of Extraordinary Pension have been modified by government orders on the basis of recommendations of successive pay commissions. None of such successive orders have taken away the right of persons with disability less than 60%. 20. In view of above discussions, the appeal is allowed and judgment dated 17.12.2018, passed by Hon'ble Single Judge in case CWP No. 1643 of 2016, titled as Bhisham Singh vs. Union of India and Others, is set-aside. None of such successive orders have taken away the right of persons with disability less than 60%. 20. In view of above discussions, the appeal is allowed and judgment dated 17.12.2018, passed by Hon'ble Single Judge in case CWP No. 1643 of 2016, titled as Bhisham Singh vs. Union of India and Others, is set-aside. The appellant is held entitled to disability pension in addition to his service pension w.e.f. the date of his retirement i.e. 03.05.2018. Order dated 10.03.2012 issued by The Commandant 9th Bn. IDBP (MHA) Government of India, Pin 934409 C/o 99 APO, is quashed and set-aside. The respondents are directed to pay to the appellant the disability pension as per applicable Central Civil Services Extraordinary Pension Rules forthwith and further to pay arrears due and admissible in accordance with the said rules along with interest @ 9% per annum within a period of three months from the date of this order. 21. The appeal is, accordingly, disposed of in the above terms. Pending miscellaneous applications, if any, also stand disposed of.