Disposed

Shivakumar S/O Bhimanna Rakkasagi, v. the Border Security Force

Karnataka HC10 Jun 2022WP/103996/2015

Case brief

AI extract

What is this about?

The petitioner, a BSF constable retired due to physical unfitness before completing ten years of service, challenged the rejection of his invalid pension claim. The court held that 2021 amended rules were not applicable and the disability was not service-attributable. However, the court directed payment of service gratuity and leave salary.

What did the court decide?

Directed respondent No.2 to determine and pay service gratuity under Rule 49(1) of CCS(Pension) Rules, 1972, and cash equivalent of earned and half-pay leave under Rule 39-B of CCS(Leave) Rules, 1972,

Shivakumar S/O Bhimanna Rakkasagi, Vs the… — Pension and Retirement Benefits | Karnataka HC (2022)

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WP No. 103996 of 2015

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF JUNE, 2022

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BEFORE

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THE HON'BLE MR JUSTICE R.DEVDAS

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WRIT PETITION NO. 103996 OF 2015 (S-R)

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BETWEEN:

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SRI.SHIVAKUMAR S/O BHIMANNA RAKKASAGI, AGED 23 YEARS, REGIMENTAL NO. 116990075, D COY, 69 BN B.S.F., KUPWARA, JAMMU AND KASHMIR, PRESENTLY R/AT H.NO. 251, JORAPURGALLI, HOSPET, BAGALKOTE.

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…PETITIONER

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(BY SRI. H.M.DHARIGOND, ADVOCATE)

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AND:

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THE BORDER SECURITY FORCE, REPTD., BY ITS DIRECTOR GENERAL BSF HEAD QUARTERS, BLOCK NO.10, CGO COMPLEX, LODHI ROAD, NEW DELHI-110003.

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THE ASSTT COMDT (MIN), FTR HQ, BSF, HUMHAMA,, SRINAGAR, JAMMU AND KASHMIR.

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VINAYAKA B V Digitally signed byVINAYAKA B V Location: DharwadDate: 2022.06.1510:08:51 +0530

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THE COMMANDANT, 69 BATTALION, BORDER SECURITY FORCE, C/O: 56 APO.

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(BY SRI. M B KANAVI, CGSC FOR R1-R3)

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…RESPONDENTS

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT IN THE NATRUE OF CIRTIORARI OR ANY OTHER WRIT OR DIRECTION AND QUASH THE ORDER PASSED BY R-2 RESPONDENT DATED 25.02.2015, VIDE ANNEXUER-M AND THE ORDER PASSED BY R-3 DATED 20.12.2014, VIDE ANNEXURE-K, AS ARBITRARY AND UN-REASONABLE AND OPPOSED TO PROVISIONS OF THE BORDER SECURITY FORCE ACT AND THE RULES AND ETC.

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WP No. 103996 of 2015

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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R.DEVDAS J., (ORAL):

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Petitioner was appointed as Constable/Tradesman (Cook) in the respondent-Border Security Force on 30.05.2011, w.e.f., 09.05.2011. However, during the month of February, 2012 he was admitted to the Guru Gobind Singh Medical College & Hospital, Faridkot and he was diagnosed as a case of ‘YOUNG STROKE’ ‘Right Vertebral artery Dissection’ on 09.12.2012. Thereafter, the petitioner was referred to the BSF, Medical Board and as per the proceedings of the Medical Board dated 23.06.2014, the petitioner was declared unfit, since he had disability of 57%. Consequently, on 20.12.2014 the petitioner was retired from service on the ground of physical unfitness. Nevertheless, in the impugned order dated 20.12.2014, the pensionary benefit sought by the petitioner was rejected on the ground that petitioner has not completed ten years of qualifying service in terms of

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WP No. 103996 of 2015

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CCS(Pension), Rules 1972. Consequently, the petitioner is before this court.

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Learned counsel for petitioner has drawn the attention of this Court to the CCS (Pension) Rules and more particularly Rule 44(1) of the Central Civil Services (Pension) Rules 2021 which was notified on 20.12.2021 and submits that although the said provisions provide that a Government servant who has not completed qualified services of 10 years will not be eligible for grant of pension, nevertheless, in the proviso to Sub-Rule (1) of Rule 44 of the Central Civil Services (Pension) Rules, 2021 it is provided that if a Government servant retires in terms of Rule 39, he shall also be eligible for an invalid pension calculated at fifty percent of emoluments or average emoluments. The learned counsel would thereafter draw the attention of this Court to Rule 39 and more particularly Sub-Rule (9) of Rule 39 which provides that a Government servant who retires before completing a qualifying service of ten years, shall also be eligible for an invalid pension, in this case, the amount of invalid pension shall be calculated

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at fifty percent of emoluments or average emoluments, whichever is more beneficial to him in accordance with Rule 44 of the Central Civil Services (Pension) Rules 2021. Sub-rule (1) of Rule 39 provides that on a Government servant acquiring a disability and if under Section 20 of the Rights of Persons with Disabilities Act, 2016 such Government servant is declared as a person with disability and further declared unfit, he shall become eligible for seeking invalid pension.

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Learned Central Government Counsel submits that the proviso to sub-Rule 44 of the Central Civil Services (Pension) Rules, 2021 and sub-rule (1) of Rule 44 were amended and brought into force with effect from 20.12.2021 and whereas the petitioner was declared unfit and was retired from service in the year 2014 and therefore the amended provision cannot be made applicable to the petitioner.

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However, learned counsel for the petitioner seeks to place reliance on a decision of a Division Bench of the Hon’ble Dehli High Court in the case of Neeraj Kumar

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WP No. 103996 of 2015

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Singh Vs. Union of India and Others in W.P.(C) No.2203/2015 dated 14.07.2017. Learned counsel submits that even before the amendment was brought to the rules and more particularly sub-rule (1) of Rule 44 and the proviso, the Hon’ble Delhi High Court, based on a circular dated 29.07.2010 held that, even if such a Government servant has not put in the requisite qualified service but he is retired being declared physically unfit, he shall be entitled for disability pension in terms of the circular dated 29.07.2010. To this learned Central Government Counsel draws the attention of this Court to paragraph No.12 of the said judgment wherein the relevant provision contained in circular dated 29.07.2010 has been extracted. For easy reference, paragraph Nos.12 and 13 of the said judgment are extracted as follows;

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12. Circular dated 29.07.2010, for determining the compensation payable for death or disability under different circumstances, categorizes employees into five distinct categories. Category A and B of the same are relevant for the

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purpose of the present petition and are reproduced herein below:

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“For determining the compensation payable for death or disability under different circumstances, the cases are broadly categorized in five distinct categories which are as under:

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Category ‘A’: Death or disability due to natural causes not attributable to Government service. Example would be chronic ailments like heart and rental diseases, prolonged illness, accidents while not on duty etc.

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Category ‘B’: Death or disability due to causes which are accepted as attributable to government services or aggravated by Government service. Diseases contracted because of continued exposure to a hostile work, environment, subjected to extreme weather conditions or occupational hazards resulting in death or disability would be examples.”

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13. A bare reading of the above category(s) would show that distinction is drawn between disability due to natural causes and disability due to causes “attributable to government services” or “aggravated by the government services”. In latter cases, disability Pension in terms of Clause V of the said circular would be payable.

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The learned Central Government Counsel would therefore submit that even as per the said circular dated 29.07.2010, for the petitioner to claim the benefit of invalid pension, he should fall under Category-B. In the case before the Hon’ble Delhi High Court, it was found that the petitioner therein had contracted the disability while in service. On the basis of the material available on record, it was found in that case the expert opinion would clearly show that the petitioner therein had contracted the disability while in service. However in the present case it is found that the petitioner joined the services with effect from 09.05.2011 and on 05.02.2012 the petitioner complained of Vertigo and started vomiting. On

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06.02.2012 he was referred to Guru Gobind Singh Medical College and Hospital, Faridkot (PB) and on 09.02.2012 he was diagnosed with the decease. The learned Central Government Counsel would therefore submit that here is a case clearly falling under Category-A and it cannot be accepted that the petitioner contracted the decease or disability during the service.

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On hearing the learned Counsels and on perusing the petition papers this Court finds that the provisions contained in the amended Rules which were brought into effect from 20.12.2021 cannot be made applicable to the petitioner, going by the scope and applicability of the amended rules as per sub-rule (5) of Rule 2 of the amended rules. In sub-rule (5) of Rule 2, it is provided that the provisions of the amended Rules shall be made applicable to the Government servants, who were appointed after 31.12.2003 and more particularly, the benefit under Rule 39 of invalid pensions shall be applied only to such of the government servants who have exercised an option to that effect under Rule 10 of the

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Central Civil Services (Implementation of National Pensions System) Rules, 2021 or in whose case the default option is for availing benefits of the rules or the Central Civil Services (Pension) Rules, 1972.

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Admittedly, the petitioner could not have opted for the application of the Central Civil Services (Implementation of National Pensions System) Rules, 2021, since this writ petition itself is filed in the year 2015. Secondly, the petitioner has not opted for the Central Civil Services (Pension) Rules, 1972, obviously since, if he had applied for the benefit of such rules of the year 1972, the question of him seeking invalid pension under the regular rules would not have arisen.

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Now, coming to the applicability of the decisions in the case of Neeraj Kumar Singh (supra) this Court finds substance in the contention of the learned Central Government Counsel, who has pointed out that even as per the Circular dated 29.07.2010 for a government servant to seek disability pension, he/she should have contracted the disability during the course of the service or

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attributable to government services or aggravated by Government service because of continued exposure to a hostile work, environment, subjected to extreme weather conditions or occupational hazards resulting in death or disability.

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It is not in doubt that the petitioner was diagnosed of the deceased known as “YOUNG STROKE Right Vertebral artery Dissection”, hardly 9 months after joining services. It cannot be a case which could be said as falling under category-B as stipulated in the Circular dated 29.07.2010.

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However, the respondents have admitted in their statement of objections that the petitioner is entitled for Service Gratuity in terms of rule 49(1) of the CCS (Pension) Rules, 1972 and cash equivalent of leave salary i.e., E.L and HPL (Earned Leave & Half Pay Leave) due in the credit of the petitioner under rule 39-B of CCS (Leave) Rules (subject to a maximum of 300 days) on the date of retirement on the ground of physical unfitness. This

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having been admitted by the respondents, the petitioner is entitled for such benefits.

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Consequently, the writ petition stands disposed of while directing respondent No.2 to determine the service gratuity and cash equivalent of the leave salary as noticed herein above, in terms of rule 49(1) of Central Civil Services (Pension) Rules, 1972 and Rule 39-B of Central Civil Services (Leave) Rules and pay the same to the petitioner as expeditiously as possible and at any rate within a period of two months from the date of receipt of a certified copy of this order.

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Ordered accordingly.

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Pending I.As., if any, stand disposed of .

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SD JUDGE

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MBS/PJ/DL

Shivakumar S/O Bhimanna Rakkasagi, v. the Border Security Force

Case brief

What is this about?

What did the court decide?

Shivakumar S/O Bhimanna Rakkasagi, v. the Border Security Force

Case brief

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