Madhav Singh vs State of M.P. and Others

This writ petition preferred under Articles 226 and 227 of the Constitution of India is directed against the order dated 2-11-99 and the order on application for review arising out of the order in O.A. No. 2255/1997 passed by the Member (A), S.A.T. for brevity the Tribunal.

The facts, in brief, are that the petitioner was a clerk in the service of the State of M.P. and had completed 34 years tenure. The petitioner was subjected to Medical Board which recommended that he was unfit to work. Consequently the petitioner was made to retire w.e.f. 30-10-94. His pension has been determined under the provisions of M.P. Civil Services (Pension) Rules, 1976. The petitioner filed O.A. No. 2255/97 before the Tribunal contending inter alia, that the pension ought to have been determined with reference to Rule 35 of M.P. Civil Services (Pension) Rules, 1976.

The stand of the petitioner was combatted on the base that under Rule 43 (4) of the M.P. Civil Services (Pension) Rules, 1976 in no case a pension in excess of the maximum prescribed under the Rule could be allowed, and the petitioner having completed qualifying service for superannuation, i.e., 34 years tenure, though retired on medical unfitness, could not have been granted the invalid pension under Rule 35.

We have heard the arguments advanced by the learned Counsel Shri A.P. Singh, for the petitioner and Shri S.K. Yadav, learned Govt. Advocate for the respondents.

Rule 8 of the M.P. Civil Services (Extra-ordinary Pension) Rules, 1963, defines the special risk as under:--

"8. "special risk" means--

(i) a risk of suffering by violence;

(ii) a risk of injury by accident to which Government servant is exposed in the course of, and as a consequence of the performance of any particular duty which has the effect of materially increasing his liability to such injury beyond the normal risk of this office;

(iii) a risk of contracting disease to which medical officer is exposed as a result of attending in the course of his official duty to a venereal or septicaemic patient or conducting a post- mortem examination in pursuance of that duty."

Rule 9 prescribes a higher scale gratuity etc. Rule 9 reads as under:--

"9. (1) If a Government servant sustains an injury which falls within Class A of Rule 8 he shall be awarded--

(a) a higher scale gratuity of the applicable amount specified in Schedule II; and

(b) with effect from the date of the injury--

(i) if the injury has resulted in the permanent loss or more than one limb or one eye, a permanent pension of the applicable amount specified in Schedule II for a higher scale pension; and

(ii) in other cause a permanent pension the amount of which shall not exceed the applicable amount specified in Schedule II for a higher scale pension, and shall not be less than half that amount."

Thus, Rules 8 and 9 read together would apply in a case where the petitioner was subjected to service conditions causing special risk and consequent to that special risk as subjected invalid. Nothing has been pleaded that the petitioner was subjected to service condition in causing Special Risk. Rule 35 of the M.P. Civil Services (Pension) Rules, 1976, relates to invalid pension and the Rule is as under:--

"35. Invalid Pension.-- (1) Invalid pension may be granted if a Government servant retires from the service on account of any bodily or mental infirmity which permanently incapacitates him for the service.

(2) A Government servant applying for an invalid pension shall submit a medical certificate of incapacity from the following medical authority, namely:--

(a) a medical board, in the case of a Gazetted Government servant (......)

(b) Civil Surgeon or a District Medical Officer or Medical Officer of equivalent status in other cases."

Rule 43 (4) specifies that in no case a pension in excess of the maximum pension prescribed under the Rule shall be allowed, to the petitioner. Mr. A.P. Singh, learned Advocate for the petitioner placed reliance on the decision Bishop v. Baker Baker Refractories Ltd., (2002) 2 All ER (1). The said decision is on the point of liability of employer where on duty on account of negligence the employee suffers a special risk and sustains injury. This is not the case at hand and the decision relied upon is of no assistance to the petitioner. The petitioner joined the services of the respondent-State as Lower Division Clerk and was promoted to the rank of Upper Division Clerk. Having completed a tenure of 34 years service, he was directed to obtain a certificate from the Medical Board. The Board certified him to be unfit for duty. Accordingly the petitioner was made to retire and under Rule 43 of the M.P. Civil Services (Pension) Rules, 1976 amount of pension and other benefits were determined. In this we perceive no error.

Accordingly we hold that the impugned order dated 2-11-99 in O. A. No. 2255/99 and the order passed in Petition for review, M.A. No. 643/99, have rightly been passed by the Tribunal rejecting the contention of the petitioner.

In the result the writ petition fails and is dismissed with no order as to costs.