High Court · 2025

Judgment

( p e r H o n ’ b l e Ju st i c e Sr i M a n o j K u m a r Ti w a r i )

1. This int ra- court appeal is direct ed against t he j udgm ent and order dat ed 27.06.2018 passed by learned Single Judge in Writ Pet it ion ( S/ S) No.2304 of

2015. Operat ive port ion of t he said j udgm ent ext ract ed below: - “ 9. I t is evident fr om let t er dat ed 20.08.2007 ( annex ure no.8) t hat t he pet it ioner was m edically unfit under t he provisions of Rule 25 of t he B.S.F. Rules 1969 and was r et ired being unfit . The pet it ioner has pr ayed for pensionary benefit s. The case, as not iced hereinabove, was t aken up befor e t he higher aut horit ies and it was ret ur ned st at ing t hat t he pet it ioner has not com plet ed 10 y ear s of service. 1

10. I n view of discussions m ade her einabove, t he pet it ioner had com plet ed 12 years, 8 m ont hs and 26 days. The order of dism issal was st ayed by t his Court . The pet it ioner w as reinst at ed on 24.03.2004. He j oined his dut ies on 05.04.2004. Thus, t he period bet w een 2000 t o 2004 was liable t o be count ed as qualifying service. I n alt er nat ive, r espondent s ar e also required t o give t he pet it ioner suit able post ing inst ead of ret iring him on t he ground of unfit ness. He has acquired t he disease during t he course of his em ploym ent . He was m edically exam ined at t he t im e when he w as enr olled in B.S.F. He was not suffering from t his ailm ent . He suffered t his ailm ent aft er his enrolm ent in B.S.F. on 24.11.1994. I n case, he was suffering from any disease, it could be det ect ed when t he Medical Board at t he t im e of his enrolm ent .

11. Accordingly, t he writ pet it ion is allowed. Annexure No.8 is quashed and set aside by m olding t he relief t hat t he pet it ioner will be deem ed t o be in service w .e.f. 34.08.2007 and t he respondent s will give him suit able post as per t he pr ovisions of Sect ion 47 of t he Act or in alt er nat ive, t he respondent s shall t he pet it ioner invalid pension wit h consequent ial benefit s.”

2. Appellant has

challenged t he aforesaid j udgm ent on following t wo count s: - ( i) Respondent ( writ pet it ioner) had only sought a writ of m andam us t o release pension t o him w.e.f. Sept em ber, 2007 wit h arrears of pension and int erest t hereon, t herefore, 2 learned Single Judge was not j ust ified in grant ing relief of reinst at em ent t o him . ( ii) Respondent ( writ pet it ioner) com plet ed 10 years of qualifying service, t herefore, t he direct ion t o grant pension t o him , as an alt ernat ive t o t he relief of reinst at em ent , is not sust ainable.

3. From t he relief clause of t he writ pet it ion, it is apparent t hat respondent had only sought a direct ion t o release pension t o him . Therefore, t he first ground of challenge is valid. As regards t he second ground of challenge, learned counsel for t he respondent subm it s t hat his client was enrolled in Border Securit y Force on

24.11.1994; he was t erm inat ed from service wit hout holding any inquiry, vide order dat ed 27.10.2000; t he t erm inat ion order was challenged by him in Writ Pet it ion ( S/ B) No.1744 of 2002 and t he operat ion of t he t erm inat ion order was st ayed by Division Bench of t his Court , vide order dat ed 09.12.2002. However, despit e t he int erim order passed by Division Bench, respondent was not t aken back in service and he was ult im at ely reinst at ed on 24.03.2004 only when cont em pt proceedings were drawn against t he aut horit ies.

4. Learned counsel for t he respondent subm it s t hat respondent was ult im at ely discharged from service w.e.f. 21.08.2007, on m edical ground, vide order dat ed

20.08.2007, t herefore, according t o him , t he t ot al lengt h of service, which his client rendered in B.S.F. bet ween 24.11.1994 t ill 21.08.2007, is about 13 years. 3

5. Learned counsel for t he appellant , however, disput es t he subm ission regarding lengt h of service rendered by respondent and subm it s t hat respondent has put in only 12 years 8 m ont hs and 26 days of t ot al service out of which 4 years 1 m ont h and 1 day is non- qualifying service for pension.

6. We find subst ance in t he subm ission m ade on behalf of respondent t hat he has com plet ed m ore t han 10 years of service in B.S.F.

7. I t is not in disput e t hat respondent was appoint ed w.e.f. 24.11.1994 and he served t ill his t erm inat ion, vide order dat ed 27.10.2000. Respondent was ent it led t o be reinst at ed im m ediat ely upon passing of int erim order passed by Division Bench of t his Court , which was passed on 09.12.2002 and he was ult im at ely discharged from service, on m edical grounds, w.e.f.

21.08.2007. Thus, t he ent ire period bet ween

09.12.2002 when int erim order was passed t ill discharge of respondent from service i.e. 21.08.2007, which com es t o 4 years 8 m ont hs and 12 days has t o be t aken as qualifying service for pension. I f t his period is added t o t he services rendered by respondent bet ween 24.11.1994 t ill 27.10.2000, t hen it goes well beyond 10 years. Learned counsel for t he appellant concedes t hat qualifying service needed for pension is 10 years.

8. Since learned Single Judge arrived at t he conclusion t hat t ot al service rendered by respondent goes well beyond required m inim um 10 years and we 4 concur wit h t he reasoning given by learned Single Judge for arriving at t he said finding, t herefore, we part ly allow t his appeal and int erfere wit h t hat part of t he im pugned j udgm ent where B.S.F. aut horit ies were direct ed t o reinst at e t he respondent in service by giving benefit of Sect ion 47 of Persons wit h Disabilit ies ( Equal Opport unit ies Prot ect ion Right s Full Part icipat ion) Act , 1995. Accordingly, t he direct ion issued by learned Single Judge for reinst at em ent is set- aside. However, we uphold t he direct ion issued by learned Single Judge regarding grant of pension by providing t hat t he Com pet ent Aut horit y in B.S.F. shall grant pension t o t he respondent , as per Cent ral Civil Services ( Pension) Rules, 1972. ( Su b h a sh Up a d h y a y , J.) ( M a n o j K u m a r Ti w a r i , J.) 08.07.2025 08.07.2025 Raj ni RAJINI GUSAIN DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=97cfa6e4cbd49c07b876db48448 ac3701a9ae475a2547e4b7f1d9b1f17d013 42, postalCode=263001, st=UTTARAKHAND, serialNumber=8D039BC77BD1A2222B4D F4FC80D4557562F95BEBA013F530616A1 58A0A878BD8, cn=RAJINI GUSAIN 5