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Judgment
Tarlok Singh Chauhan, J.—The petitioner has approached this Court by way of the present writ petition claiming therein the following substantive reliefs:-
To direct the respondents to sanction disability pension to the petitioner under the provisions of the Extraordinary Pension Rules w.e.f. 26-09-93 with interest @ 12% per annum on the arrears of pension for the aforesaid date till payment thereof.
To sanction Constant Attendance Allowance @ Rs. 3000/- p.m. w.e.f. 26-09-93.
It is averred that the petitioner was appointed as Chowkidar in GSSS, Subathu, Tehsil and District Solan, H.P. on 03.08.1993 and while he was discharging his duties as Chowkidar, he was run over by a speeding truck outside the school gate on 26.09.1993, as a result of which, he was rendered paraplegic and his permanent physical disability was adjudged to the extent of 85%. It was further averred that the petitioner filed an Original Application before the learned H.P. Administrative Tribunal, Shimla, being OA No. 4023/2000 for ordering his retirement from service having been rendered incapable for further government service and for sanction of invalid pension under Rule-38 of the CCS (Pension) Rules, 1972. During the pendency of the Original Application, the petitioner was sanctioned Special Disability leave w.e.f. 27.09.1993 to 26.09.1995 and Extraordinary leave (for short ''EOL'') w.e.f. 27.09.1995 to 15.01.2000 and was retired from service w.e.f. 15.01.2000. However, his case for invalid pension under Rule-38 of the CCS (Pension) Rules, 1972 was rejected by respondent No. 3 on the ground that since the petitioner had not completed 10 years of qualifying service, he was not entitled for the sanction of invalid pension. It was also averred that the Original Application on closure of the H.P. Administrative Tribunal was transferred to this Court and renumbered as CWP(T) No. 7084/2008 and when the writ petition came up for final disposal before this Court, it was contended on behalf of the petitioner that the case of the petitioner was not covered under Rule-38 of the CCS (Pension) Rules, 1972 for grant of invalid pension but for disability pension under the provisions of Extraordinary Pension Rules. It was further averred that consequent to this vide order dated 12.08.2010 this Court allowed the petitioner to make a representation to the first respondent for sanction of disability pension under the provisions of Extraordinary Pension Rules with further direction to the first respondent to take appropriate action in the matter in accordance with law within four months.
It was further averred that the petitioner had submitted representation through registered post to the first respondent on 27.09.2010 along with a copy of the judgment passed by the Court and when no action was taken on the representation of the petitioner, he filed a contempt petition before the Court being COPC No. 78/2011. In the contempt petition, the respondents took the stand that the case of the petitioner was not covered under the Disability Pension Rules as the same are applicable to the person paid from the Civil Estimates and not to the petitioner, who was paid out of the Consolidated Fund of the State. It was also averred that in view of the apology tendered by the respondent No. 1. in the contempt petition, this Court vide order dated 29.08.2011 dismissed the contempt petition with the direction to respondent No. 1 to furnish a copy of the order passed pursuant to the judgment passed in CWP(T) No. 7084/2008. The petitioner sent a copy of the order dated 29.08.2011 passed in COPC No. 78/2011 to the first respondent through Registered post on 03.11.2011, but no order in pursuance to the judgment dated 12.08.2010 was communicated to the petitioner.
According to the petitioner, since no reply was received from the respondents, the petitioner considered his case for disability pension to have been rejected on the ground that the Extraordinary Pension Rules are applicable to the persons from the Civil Estimates and that the petitioner is not covered under the same as his salary was being paid out of the Consolidated Funds of the State. It is claimed that the stand of the respondents that the petitioner is not entitled to disability pension on the aforesaid grounds is not tenable because under service jurisprudence "Civil Estimates" is understood in contradistinction to "Defence Estimates" and not in contradistinction to the "Consolidated Funds" which has been made by the respondents as the basis for rejection of the case of the petitioner for sanction of the disability pension, despite the petitioner having sustained injuries during the course of his employment whereby he has been rendered paraplegic and his permanent disability on account of the injuries suffered by him had been adjudged as 85% by the Medical Board. It was further averred that there was no improvement in the condition of the petitioner over the period of 18 years and he is totally confined to bed and is being looked after by his wife and other family members for all his basic needs and bodily functions.
The State of Himachal Pradesh through his Principal Secretary and the Director of the Higher Education filed their common reply wherein preliminary submission regarding the maintainability of the petition for want of cause of action was raised. It was further stated that the case of the petitioner for grant of disability pension under the Extraordinary Pension Rules was examined in detail and the position with regard to the same is as under:-
It was further averred that as per the provisions of CCS (Pension Rules), 1972, a government servant becomes entitled for pensionary benefits on completion of 10 years of qualifying service rendered on regular basis irrespective of nature of pension except family pension. Likewise the provisions of Rule-50 envisage that a government servant after rendering 5 years of service on regular basis becomes eligible for service gratuity or pension on his retirement to whom the same shall be granted the benefit of retirement gratuity equal to one fourth of his emoluments for each completed six monthly period of qualifying service subject to a maximum of sixteen and half times the emoluments. It was also averred that besides this provision, in the case of a government servant retiring in accordance with the provision of CCS (Pension Rules), 1972, before completing qualifying service of 10 years, the amount of service gratuity shall be calculated at the rate of half month''s emoluments for every completed six monthly period of qualifying service. In the instant case petitioner while working as peon neither becomes entitled for pension nor for any retirement gratuity as well as service gratuity as he has rendered regular service for only 45 days under the State Government/respondent department. Since the service rendered by the petitioner was less than three years, therefore, he was liable to be governed under the Central Civil Services (Temporary Service) Rules, 1965. The petitioner was allowed the disability leave for the period from 27.09.1993 to 26.09.1995 and was paid Rs. 26514/- as leave salary for this period inadvertently though as per above provision of rules, he was not eligible for any special disability leave, pay and allowance under CCS (Leave) Rules, 1972.
It was then averred that the disability leave to any eligible incumbent is granted on the following conditions:-
accidental injuries incurred to them in due performance of their official duties;
or accident injuries incurred to them in consequence of their official position;
or illness to them in the performance of any particulars duty, which increased their liability to illness or injury beyond the ordinary risk attaching to the post held by them;
it is to ensure by leave sanctioning authority that special Disability Leave with full leave salary is not sanctioned beyond first 120 days under this provision.
Thus, according to these respondents, the petitioner was not entitled for any said disability leave as per the provisions of CCS (Leave) Rules, 1972 and pay and allowances in lieu thereof. According to these respondents, the overpayment of Rs. 26,514/- was recoverable from the petitioner.
The respondents further maintained that a temporary government servant can be sanctioned ''EOL'' upto maximum limit of three months without linking it to the length of service. This leave is admissible with or without the production of medical certificate. Therefore, the sanction of ''EOL'' in respect of the petitioner for the aforesaid was irregular. It was further maintained that since petitioner has rendered less than 5 years of service, therefore, he was not entitled for compensation of terminal gratuity.
Insofar as the claim of the petitioner for sanction of the disability pension under Extraordinary Pension Rules with effect from 26.09.1993 and sanction of constant attendant allowance at the rate of Rs. 3,000/- per month with effect from 26.09.1993 is concerned, the same according to these respondents was not maintainable on the following grounds:-
a) That the case of invalid pension in respect of Sh. Devi Chand was also sent to the Sr. Deputy Accountant General (A & E) HP for consideration by the Principal GSSS Sabhatu Distt. Solan on 01.05.2001 vide letter No. GSSS-sb(B)9/99-23-25 and the same was rejected on 18.06.2001 and 29.06.2002 vide letter No. Pen-4/D-11/2001/220-21 and Pen. 4/D-11/2001-2002/13407-08 respectively with the remarks that the invalid pension/Service Gratuity and terminal gratuity are not admissible to Sh. Devi Chand as per rule 38, 49 and rule-6 of Appendix CCS Pension Rule, 1972. This being so because most of the Government servants in every State are paid from the consolidated fund of the State in the case of Central Govt. servant from consolidated fund of India (except a few category) and not from the civil estimate. Like wise petitioner was also paid from consolidated fund of the State during the period he served the Government. Therefore, CCS Extraordinary Pension Rules are not applicable in his case.
b) That with respect to second claim it is submitted that the petitioner on 26.09.1993 while working as Chowkidar at GSSS Subathu, Distt. Solan before duty hours was hit by vehicle (Matador) bearing No. Ch. 01-J7985 which was being driven by one Hari Ram driver in a rash and negligent manner in which the conductor of matador also died on the spot. Consequently an FIR No. 91/93 dated 26.09.1993 under Sections 279, 337 and 304-A IPC was also registered at Police Station, Dharampur on 26.09.1993 at 7.30 p.m. The copy of this FIR is annexed as Annexure R-1. It is also learnt that the petitioner for causing him personal disability also filed claim petition before MACT-II, Solan, Distt. Solan and had also received compensation for the injuries so caused to him. The petitioner has concealed this fact and he be directed to place on record the copy of the award so passed by Ld. MACT-II, Solan in his favour.
It was further maintained that the case of the petitioner was examined in detail in light of CCS (Extraordinary Pension) Rules and as per the provision enshrined therein, these rules are applicable to all persons paid from Civil Estimates, other than those to whom the Workmen''s Compensation Act, 1923 (VIII of 1923) applies, whether their appointment is permanent or temporary on the scale of pay or fixed or piece work rates who are under the rule making control of the Governor-General. Further it was alleged that as per Rule 14 of CCS (Pension) Rules, 1972 under the caption-condition subject to which service qualifies the service of a Government servant shall not qualify unless his duties and pay are regulated by the Government, or under condition determined by the Government. For the purposes of this rule the expression "Service" means service under the Government and paid by that Government from the consolidated fund of India or a local fund administered by the Government but does not include service in a non pensionable establishment unless such service is treated as qualifying by the Government. Accordingly, after taking into consideration, the necessary provisions of law, the disability pension case of the petitioner, according to these respondents, had been rightly rejected.
Insofar as the respondent No. 3 i.e. Accountant General of Himachal Pradesh is concerned, it filed a short reply wherein it was stated that though at the initial stage, the case of the petitioner had been rejected by the respondents. However, in view of the decision of this Court on 12.08.2010 whereby the respondent No. 1 was directed to consider the claim of the petitioner for grant of disability pension on the basis of the representation filed by the petitioner, this respondent had called for the pension case from the department, but the same had not been received till the filing of the reply, despite repeated reminders.
A further reply was filed on behalf of respondent No. 3 wherein it was stated that the pension case of the petitioner had been received from the department stating therein that the petitioner was not entitled to the invalid pension.
I have heard Shri M.L. Sharma, learned counsel for the petitioner and Shri Virender Kumar Verma and Ms. Meenakshi Sharma, learned Additional Advocate Generals with Ms. Parul Negi, learned Deputy Advocate General, for respondents No. 1 and 2 and gone through the records of the case.
In order to determine the controversy between the parties, the relevant provisions of the Central Civil Services (Extraordinary Pension) Rules, may first be noticed:-
[2. These rules shall apply to all persons paid from Civil Estimates, other than those to whom the Workmen''s Compensation Act, 1923 (VIII of 1923) applies (subject to Para. 6 of Schedule II), whether their appointment is permanent or temporary, on the scale of pay or fixed pay or piece-work rates who are under the rule making control of the President of India:
Provided that nothing contained in these rules shall apply to the Government servants appointed on or after the 1st day of January, 2004.
For the purpose of these rules, unless there is anything repugnant in the subject or context-
(1) "accident" means-
(i) a sudden and unavoidable mishap; or
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.
8(1) The percentage of disability due to an injury or injuries shall be as specified in SCHEDULE-I hereto annexed, or failing that, as certified by the Medical Authority.
(2) The percentage of disability due to a disease or diseases specified in SCHEDULE-I-A, hereto annexed, shall be as certified by the Medical Authority.
(3) 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:-
[9(1) When disablement of a Government service is conceded as due to Government service in terms of Rule 3-A, he shall be awarded disability pension in terms of sub-rule (2) or lumpsum compensation in terms of sub-rule (3) of this rule in accordance with the percentage of disability (suffered by him) as certified by the Medical Authority concerned.
(2) If the Government servant is boarded out of Government service on account of his disablement, the quantum of disability pension for cent per cent disability shall be as specified in SCHEDULE II hereto annexed and the quantum of disability pension for lower percentage of disability shall be, "proportionately lower" in accordance with the provision provided in Rule 8.
[13. (1) In respect of matters of procedure, all awards under these rules are subject to any procedure rules relating to ordinary pensions for the time being in force, to the extent that such procedure rules are applicable and are not inconsistent with these rules and also, if eligibility concerning pension is not covered under these rules but covered under Central Civil Services (Pension) Rules, 1972, the Central Civil Services (Pension) Rules, 1972 shall be applicable, provided it is not repugnant to or inconsistent with the provisions of these rules;]
SCHEDULE II
[See Rule 9(2), 10, 11(1)]
Category ''C''.-Death or disability due to accident in the performance of duties. Some examples are accidents while travelling on duty in Government''s vehicles or public transport, a journey on duty is performed by service aircraft, mishaps at sea, electrocution while on duty, etc.
It will be clear from the Rules aforesaid that no doubt these apply to all persons paid from "Civil Estimates" other than those to whom the Workmen''s Compensation Act applies, however, then the question arises as to whether the petitioner was being paid out of the "Civil Estimates" (which question is answered subsequently). For the time being, in case it is assumed that the petitioner was being paid out of the "Civil Estimates", then he had not only suffered an accident within the meaning of Rule 3 (supra), but had also suffered disablement in terms of the Rules. Since the percentage of disability suffered by the petitioner is 85%, therefore, his disability in terms of the Rule 8 (supra) would have to be reckoned as 100%. Once the petitioner is boarded out of the service on account of his disablement, the quantum of disability pension for cent percent disability has to be paid to him in terms of Schedule II of the Act.
It is only on account of two reasons assigned by the respondents that the petitioner''s claim for disability pension has been denied (Para 9 supra).
Now the first question to be determined is as to whether the claim of the petitioner can be denied only on the ground that for the purpose of this rule the expression "Service" means service under the Government and paid by that Government from the Consolidated Fund of India or a Local Fund administered by the Government which does not include service in a non pensionable establishment unless such service is treated as qualifying by that Government.
There appears to be an inherent fallacy in the argument of the respondents because the term "Civil Estimates" used in the CCS (Extraordinary Pension) Rules has been used in contradistinction to "Defence Estimates" and has nothing to do with the payment of salary from the Consolidated Fund of India because the term "Civil Estimates" has not been used in contradistinction to the term "Consolidated Funds".
In order to answer the second question relating to the question that the petitioner has incurred disablement during the course of employment, the records of the case was summoned. The necessity of this arose because the respondents had claimed that on the fateful day i.e. 26.09.1993 the petitioner was not performing his duties since it was a Sunday. The attendance register for the month of September, 1993, shows that the petitioner, in fact, was on duty on the date i.e. 26.09.1993. The duties, functions and responsibilities of a Chowkidar are specified in the Office Manual which provides:-
(8) Chowkidar
(i) to keep watch and ward during and after office hours; and
(ii) to take precautionary measures relating to prevention of fire and damage to Government property.
It is, therefore, abundantly clear that the Chowkidar is required to perform duty around the clock even after the office hours and accordingly it can safely be concluded that the petitioner suffered disablement on account of injuries sustained by him during the course of his employment when he was on duty.
In so far as the claim of the petitioner a Constant Attendant Allowance at the rate of Rs. 3,000/- per month with effect from 26.09.1993 is concerned, the same cannot be allowed because the respondents have already appointed the son of the petitioner Shri Kuldeep Sharma on compassionate grounds on 24.08.2001 by offering him the post of a Clerk in the respondents-department and who at the time of filing of the reply by the respondents was working as a Senior Assistant.
In view of the aforesaid discussion, I find some merit in the petition and the same is partly allowed. The respondents are directed to sanction disability pension to the petitioner under the provisions of the Extraordinary Pension Rules with effect from 26.09.1993 with interest at the rate of 8% per annum on the arrears of pension for the aforesaid date till the payment thereof. The parties are left to bear their own costs. The pending application, if any, also stands disposed of.