whether the minimum qualifying service prescribed under the Pension Rules can be
ignored for the purpose of consideration of invalid pension under Rule 39 of the Pension Rules. =
The respondent’s husband had not served for ten years and was therefore, he disentitled for regular pension. For the same reason, he cannot also be held entitled to invalid pension. The different provisions of the Pension Rules cannot be read in isolation and must be construed harmoniously and the requirement of qualifying service cannot be said to be irrelevant for claiming different
service benefits under the same Rules.
Here the employee did not satisfy the requirement of qualifying service and therefore the invalid pension could not have been ordered for him, under Rule 39 of the Pension Rules.
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9204 OF 2019
(Arising out of SLP(C) No.16283 of 2017
STATE OF ODISHA & ORS. APPELLANT(S)
VERSUS
MANJU NAIK RESPONDENT(S)
J U D G M E N T
Hrishikesh Roy, J.
Leave granted.
2. This appeal arises out of the judgment and order dated
29.11.2016 in W.P. (C)No. 14413 of 2016 whereunder the High
Court of Orissa has dismissed the appellants’ challenge to
the order dated 3.8.2015 of the Odisha Administrative
Page 1 of 17
Tribunal (hereinafter referred to as “the Tribunal”) under
which the authorities were directed to consider sanction of
invalid pension in favour of late Sagar Naik (husband of the
respondent) and thereafter settle family pension in favour
of the applicant, under the provisions of the Orissa Civil
Services (Pension) Rules- 1992 (hereafter referred to as
“the Pension Rules”).
3. The respondent filed the OA No. 18(B)/2010 before the
Tribunal praying for fixation of pay of late Sagar Naik and
for disbursal of his accrued financial benefits with effect
from 1.1.1996 until he was retired on 6.7.1996 on being
mentally incapacitated. The applicant also prayed for
sanction of family pension from the date of death of her
husband i.e. 24.7.1996.
4. The applicant projected before the Tribunal that her
husband on being found incapacitated was made to retire from
service on 6.7.1996 and he died soon thereafter on 24.7.1996
and therefore, the widow is entitled to family pension. She
also tried to make out a case for grant of invalid pension
in favour of her late husband.
Page 2 of 17
5. Opposing the prayers, the Government Advocate on behalf
of the State contended before the Tribunal that the
applicant’s husband had not rendered the qualifying period
of service so as to make him eligible for pension. Opposing
the claim for invalid pension for the deceased husband, the
appellants contended that Rule 39 of the Pension Rules
governing invalid pension has to be read together with Rule
47 which specifies the qualifying service of ten years for
grant of pension and accordingly it was argued that the
applicant is disentitled to any relief from the Tribunal.
6. Notwithstanding the State’s above contention, the
Tribunal concluded that the applicant’s husband is entitled
to invalid pension under Rule 39 of the Pension Rules and
accordingly, the authorities were directed to sanction the
invalid pension for the applicant’s husband and after his
death, to settle the family pension for the applicant, after
regularizing the services of the deceased employee.
7. The above decision was challenged by the appellants
through W.P.(C) No. 14413/2016 where the State projected
that Rule 39 has to be read jointly with Rule 47 of the
Pension Rules and if Rules are applied as it should be,
conjointly, the deceased government employee is ineligible
Page 3 of 17
for invalid pension. However, without adverting to the
specific contention raised by the appellants, the High Court
observed that a reasoned order was passed by the Tribunal
declaring entitlement for the invalid pension and
accordingly the Tribunal’s impugned order was left
undisturbed and the writ petition came to be dismissed.
8. Representing the State of Odisha and other appellants,
Ms. Anindita Pujari, learned counsel submits that the
deceased government employee was unauthorizedly absent from
service from 1.2.1995 to 23.7.1995 and was under suspension
from 24.7.1995 to 6.7.1996 and this period cannot be counted
for determining the qualifying service. Thus, in his
credit, the deceased employee had net qualifying service of
4 years 6 months and 29 days until he was superannuated on
6.7.1996. The learned counsel then refers to the
provisions of Rule 47(2)(b) and 47(5)(i) to argue that
without completing the qualifying service of ten years, the
deceased employee is ineligible for pension. Due to such
non-entitlement, the widow was granted the alternate benefit
i.e., the service gratuity amount by computing the
entitlement under Rule 47(5)(i)of the Pension Rules.
Page 4 of 17
9. On account of the short duration of service rendered by
the deceased employee, the State’s counsel then argues that
the respondent’s husband cannot be granted invalid pension
under Rule 39 as the provision has to be conjointly read
with Rule 47 and Rule 56 of the Pension Rules which specify
the qualifying service of ten years and also the
consequences for those who do not satisfy the eligibility
criterion for qualifying service.
10. Per-contra, Mr. Kedar Nath Tripathi, learned counsel
for the respondent/applicant, would however argue that the
government employee was allowed to retire from service on
6.7.1996 on the ground of mental incapacity and since
invalid pension is envisaged under Rule 39 of the Pension
Rules for such prematurely retiring employees suffering
permanent incapacity, the Tribunal and the High Court have
rightly ordered for grant of invalid pension for the
respondent’s husband.
11. The learned counsel then submits that since the
government servant died within few days of retirement,
firstly he must be paid the invalid pension under Rule 39
and after his death on 24.7.1996, the respondent as the
widow, should be held entitled to family pension.
Page 5 of 17
12. The issue to be considered here is whether the minimum
qualifying service prescribed under the Pension Rules can be
ignored for the purpose of consideration of invalid pension
under Rule 39 of the Pension Rules. As a corollary, whether
the Tribunal or the High Court erred in directing invalid
pension for a government employee who did not have the
qualifying service, prescribed under the Pension Rules.
13. At this stage, the relevant provisions of the Pension
Rules are extracted hereinbelow for ready reference:-
“. . . . . . . . . . . . . . . . . . . .
39. Invalid Pension – (1) invalid
pension may be granted if a Government
servant retires from the service on
account of 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) Medical Board, in the case of all
Gazetted and specially declared Gazetted
Government servants, and
(b) A Chief District Medical Officer or
Medical Officer of equivalent status in
case of other Government servants.
47. Amount of pension (1)
******** ******** ****
Page 6 of 17
2 (a) ******** ******** ****
(b) In the case of Government servant
retiring in accordance with the provisions
of these rules before completing qualifying
service of thirty-three years, but after
completing qualifying service of ten years,
the amount of pension shall be
proportionate to the amount of pension
admissible under clause (a) and in no case
the amount of pension shall be less than
the minimum amount of pension admissible.
******** ******** ****
******** ******** ****
(5)(i) In the case of a Government servant
retiring in accordance with the provisions of
these rules before completing qualifying
service of ten years, the amount of service
gratuity shall be paid at a uniform rate on
half month’s emoluments for every completed
six monthly period of service.
56. Family Pension :
**** **** **** **** **** **** ****
(2) Without prejudice to the provisions
contained in Sub-rule (4) where a Government
servant dies-
**** **** **** **** **** **** *****
(c ) After retirement from service and was
on the date of death in receipt of pension,
or compassionate allowance, referred to in
Chapter IV other than the pension referred
to in rules 43 and 44 the family of the
deceased shall be entitled to family
pension, the amount of which shall be
Page 7 of 17
determined in accordance with the table
below.
. . . . . . . . . . . . . . . . . . . . . .“
14. The respondent’s husband, late Sagar Naik was appointed
on 22.8.1989 under the Rehabilitation Assistance Scheme as
his father late Suri Naik died in harness, while serving in
the M.K.C.G. Medical College and Hospital. The appointee
was however found to be suffering from mental incapacity and
accordingly, on the basis of the medical certificate issued
by the HoD of the Psychiatric Department of the S.C.B.
Medical College, Cuttack, the employee was retired from
service on 6.7.1996 on the ground of mental incapacity. The
case paper reveals that the service of the employee was
erratic, as he remained absent from 1.2.1995 to 23.7.1995
and was under suspension from 24.7.1995 to 6.7.1996. Thus
his net qualifying service for the benefits under the
Pension Rules was taken as 4 years 6 months and 29 days
only.
15. For government servants not completing ten years
qualifying service prescribed in Rule 47(5)(i) of the
Pension Rules, the service gratuity is to be paid at a
uniform rate of half month’s emolument for every completed
Page 8 of 17
six months period of service. Such gratuity benefit as also
the other terminal benefits like GPF, unutilized Earned
Leave, Death-cum-Retirement Gratuity (DCRG), etc. were
sanctioned and paid to the widow of the employee.
Moreover, respondent was also appointed as a sweeper under
the Rehabilitation Assistance Scheme and she is in regular
government service, since 12.6.2006.
16. The gratuity and other benefits and the compassionate
appointment was accepted by the respondent without raising
any additional claim towards invalid pension for her
deceased husband, who retired on 6.7.1996.Long after his
death on 24.7.1996, the respondent approached the Tribunal
to belatedly pray for firstly, fixation of pay for her
husband in the revised scale with effect from 1.1.1996 till
his superannuation and also to sanction family pension
benefits for the applicant, following the death of the
government employee (on 24.7.1996) along with all
consequential and terminal benefits. The respondent never
however prayed for invalid pension before the Tribunal.
Yet, the Tribunal ordered for invalid pension for the
respondent’s husband, under Rule 39 of the Pension Rules.
Page 9 of 17
17. When the Tribunal’s decision was challenged in the High
Court, the State specifically contended that Rule 39 has to
be read together with Rule 47 of the Pension Rules and the
specified qualifying service must be satisfied even for
claiming invalid pension. But the High Court without
adverting to the specific contention raised by the
appellants, dismissed the writ petition with a cryptic order
observing that the Tribunal has passed a reasoned order and
that the husband of the respondent is entitled to invalid
pension under Rule 39 of the Pension Rules.
18. The requirement of completing the qualifying service of
ten years for receipt of pension is prescribed under Rule
47(2)(b) and for those government employees who retire
before completing the qualifying service, alternate relief
is envisaged under the Pension Rules itself. How the service
gratuity is to be computed, is also prescribed in Rule
47(5)(1) of the Pension Rules.
19. The respondent’s husband was retired on the ground of
mental infirmity and hence the service gratuity was paid and
the widow had received the same, without any demur. She
never raised any claim for invalid pension either at the
time of retirement on 6.7.1996 or even when she approached
Page 10 of 17
the Tribunal i.e. 14 years later in the year 2010.
Nevertheless, the Tribunal went beyond the prayers in the
O.A. No. 18(B)/2010 and ordered for invalid pension for late
Sagar Naik and then following his death, ordered for family
pension for the widow. In declaring such entitlement the
High Court and the Tribunal however ignored the qualifying
service of ten years as prescribed in the Pension Rules
although the State specifically argued that the qualifying
service criterion has to be satisfied not only for the
regular pension but also for the invalid pension since both
claims are to be considered under the very same Pension
Rules.
20. An employee becomes entitled to pension by stint of his
long service for the employer and, therefore, it should be
seen as a reward for toiling hard and long for the employer.
The Pension Rules provide for a qualifying service of 10
years for such entitlement. When the question arises as to
how certain provisions of the Pension Rules are to be
understood, it would be appropriate to read the provision in
its context which would mean reading the statute as a whole.
In other words, a particular provision of the statute should
be construed with reference to other provisions of the same
Page 11 of 17
statute so as to construe the enactment as a whole. It would
also be necessary to avoid an interpretation which will
involve conflict with two provisions of the same statute and
effort should be made for harmonious construction. In other
words, the provision of a Rule cannot be used to defeat
another Rule unless it is impossible to effect
reconciliation between them. Pension as already stated is
earned by stint of continuity and longevity of service and
minimum qualifying service should therefore be understood as
the requirement for invalid pension as well. The Pension
Rules can be harmoniously construed in this manner and in
that event, there shall be no clash between different
provisions in the said Rules.
21. The condition of qualifying service prescribed in the
Pension Rules must be satisfied to become eligible for
invalid pension and the arguments made to the contrary that
invalid pension can be claimed under Rule 39 without
satisfying the stipulated qualifying service mentioned in
the same Rules, do not appeal to us. The respondent’s
husband who had served for lesser years then the 10 years
qualifying service, was found entitled by his employers to
service gratuity only, because of his premature retirement
Page 12 of 17
on the ground of mental incapacitation and this is what is
prescribed by the Pension Rules. The dues toward service
gratuity was paid accordingly. The Pension Rules definitely
envisaged that there could be a situation where an employee
may not be eligible for pension benefits for not satisfying
the prescribed qualifying service of 10 years. For those
with less than 10 years’ service, the Pension Rules provide
for gratuity payment and therefore, it is difficult for us
to conclude that for invalid pension, qualifying years of
service, can be ignored.
22. The above view of ours is supported by the ratio in
Union of India and Another Vs. Bashirbhai R. Khiliji1, where
this Court was considering claim for invalid pension for an
armed constable in the CRPF who suffered from pyrogenic
meningitis and neurosensory deafness (bilateral). In that
case, the CRPF personnel was declared unfit for active duty,
and he was invalidated from service. He applied to
authorities for invalid pension but that was rejected on the
ground that he had not completed the qualifying service of
10 years. Instead, he was paid service gratuity. The High
Court in that case however, took the view that since the
CRPF Constable’s invalidity was 100 per cent, he was
1(2007) 6 SCC 16
Page 13 of 17
entitled to invalid pension and the stipulation of 10 years
of qualifying service could not be invoked to deny him the
invalid pension. However, Justice A.K. Mathur, speaking for
a two judge Bench of this Court while interpreting similar
provisions in the applicable Rules, negated the High Court’s
view and pronounced on the issue of qualifying service for
invalid pension, in the following manner:-
“. . . . . . . . . . . . . . . . . . . . . .
9. We are presently concerned with two
provisions of the Rules i.e., Rule 38 and
49. Rule 38, as reproduced above,
contemplates the invalid pension. The
procedure has been mentioned therein i.e. in
case an incumbent retires from service on
account of bodily or mental infirmity which
permanently incapacitated him for the
service, then a medical certificate of
incapacity shall be given by the authorities
concerned and in particular Form 23 the same
may be applied before the competent
authority. It is true that the qualifying
service is not mentioned in Rule 38 but Rule
49 which deals with the amount of pension
stipulates that a government servant
retiring in accordance with the provisions
of these Rules before completing qualifying
service of ten 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.
Therefore, the minimum qualifying service of
ten years is mentioned in Rule 49. The word
“qualifying service” has been defined in
Rule 3(1)(q) of the Rules which read as
under:
Page 14 of 17
“3. (1)(q) ‘qualifying service’ means
service rendered while on duty or otherwise
which shall be taken into account for the
purpose of pensions and gratuities
admissible under these Rules;”
10. Therefore, the minimum qualifying
service which is required for the pension as
mentioned in Rule 49, is ten years. The
qualifying service has been explained in
various memos issued by the Government of
India from time to time. But Rule 49 read
with Rule 38 makes it clear that qualifying
service of pension is ten years and
therefore, gratuity is determined after
completion of qualifying service of ten
years. Therefore, for grant of any kind of
pension one has to put in the minimum of ten
years of qualifying service. The respondent
in the present case, does not have the
minimum qualifying service. Therefore, the
authorities declined to grant him the
invalid pension. But the amount of gratuity
has been determined and the same was paid to
him.
. . . . . . . .. . . . . . . . . . . . . .”
(Underlining added)
23. The above enunciation of the law on requirement of
qualifying service for invalid pension by the bench of two
judges is reiterated and approved by us.
24. In a case like this, the need for compassion and the
compliance of the norms has to be balanced. As earlier
noted, the allowable gratuity benefits were granted on
Page 15 of 17
account of the respondent’s husband and after he died, the
widow was appointed (on 12.6.2006) in a government job under
the Rehabilitation Assistance Scheme. Thus, the needed
means of sustenance was provided to the deceased’s family.
25. The respondent’s husband had not served for ten years
and was therefore, he disentitled for regular pension. For
the same reason, he cannot also be held entitled to invalid
pension. The different provisions of the Pension Rules
cannot be read in isolation and must be construed
harmoniously and the requirement of qualifying service
cannot be said to be irrelevant for claiming different
service benefits under the same Rules. Here the employee did
not satisfy the requirement of qualifying service and
therefore the invalid pension could not have been ordered
for him, under Rule 39 of the Pension Rules.
26. In the above context, it will bear emphasis that the
respondent never prayed for invalid pension for her husband
in her O.A. and yet the Tribunal as well as the High Court
granted her the unclaimed relief. Such additional
munificence, in addition to the job provided to the first
respondent under the Rehabilitation Assistance Scheme for
Page 16 of 17
the sustenance of the deceased’s family, in our view, was
unwarranted and the impugned order cannot be sustained.
27. In view of the foregoing, the impugned orders of
Tribunal and the High Court are set aside and the Appeal
stands allowed. The parties to bear their own cost.
………………………………………………J.
[R.BANUMATHI]
………………………………………………J.
[A.S.BOPANNA]
………………………………………………J.
[HRISHIKESH ROY]
NEW DELHI
DECEMBER 04, 2019.
Page 17 of 17
ignored for the purpose of consideration of invalid pension under Rule 39 of the Pension Rules. =
The respondent’s husband had not served for ten years and was therefore, he disentitled for regular pension. For the same reason, he cannot also be held entitled to invalid pension. The different provisions of the Pension Rules cannot be read in isolation and must be construed harmoniously and the requirement of qualifying service cannot be said to be irrelevant for claiming different
service benefits under the same Rules.
Here the employee did not satisfy the requirement of qualifying service and therefore the invalid pension could not have been ordered for him, under Rule 39 of the Pension Rules.
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9204 OF 2019
(Arising out of SLP(C) No.16283 of 2017
STATE OF ODISHA & ORS. APPELLANT(S)
VERSUS
MANJU NAIK RESPONDENT(S)
J U D G M E N T
Hrishikesh Roy, J.
Leave granted.
2. This appeal arises out of the judgment and order dated
29.11.2016 in W.P. (C)No. 14413 of 2016 whereunder the High
Court of Orissa has dismissed the appellants’ challenge to
the order dated 3.8.2015 of the Odisha Administrative
Page 1 of 17
Tribunal (hereinafter referred to as “the Tribunal”) under
which the authorities were directed to consider sanction of
invalid pension in favour of late Sagar Naik (husband of the
respondent) and thereafter settle family pension in favour
of the applicant, under the provisions of the Orissa Civil
Services (Pension) Rules- 1992 (hereafter referred to as
“the Pension Rules”).
3. The respondent filed the OA No. 18(B)/2010 before the
Tribunal praying for fixation of pay of late Sagar Naik and
for disbursal of his accrued financial benefits with effect
from 1.1.1996 until he was retired on 6.7.1996 on being
mentally incapacitated. The applicant also prayed for
sanction of family pension from the date of death of her
husband i.e. 24.7.1996.
4. The applicant projected before the Tribunal that her
husband on being found incapacitated was made to retire from
service on 6.7.1996 and he died soon thereafter on 24.7.1996
and therefore, the widow is entitled to family pension. She
also tried to make out a case for grant of invalid pension
in favour of her late husband.
Page 2 of 17
5. Opposing the prayers, the Government Advocate on behalf
of the State contended before the Tribunal that the
applicant’s husband had not rendered the qualifying period
of service so as to make him eligible for pension. Opposing
the claim for invalid pension for the deceased husband, the
appellants contended that Rule 39 of the Pension Rules
governing invalid pension has to be read together with Rule
47 which specifies the qualifying service of ten years for
grant of pension and accordingly it was argued that the
applicant is disentitled to any relief from the Tribunal.
6. Notwithstanding the State’s above contention, the
Tribunal concluded that the applicant’s husband is entitled
to invalid pension under Rule 39 of the Pension Rules and
accordingly, the authorities were directed to sanction the
invalid pension for the applicant’s husband and after his
death, to settle the family pension for the applicant, after
regularizing the services of the deceased employee.
7. The above decision was challenged by the appellants
through W.P.(C) No. 14413/2016 where the State projected
that Rule 39 has to be read jointly with Rule 47 of the
Pension Rules and if Rules are applied as it should be,
conjointly, the deceased government employee is ineligible
Page 3 of 17
for invalid pension. However, without adverting to the
specific contention raised by the appellants, the High Court
observed that a reasoned order was passed by the Tribunal
declaring entitlement for the invalid pension and
accordingly the Tribunal’s impugned order was left
undisturbed and the writ petition came to be dismissed.
8. Representing the State of Odisha and other appellants,
Ms. Anindita Pujari, learned counsel submits that the
deceased government employee was unauthorizedly absent from
service from 1.2.1995 to 23.7.1995 and was under suspension
from 24.7.1995 to 6.7.1996 and this period cannot be counted
for determining the qualifying service. Thus, in his
credit, the deceased employee had net qualifying service of
4 years 6 months and 29 days until he was superannuated on
6.7.1996. The learned counsel then refers to the
provisions of Rule 47(2)(b) and 47(5)(i) to argue that
without completing the qualifying service of ten years, the
deceased employee is ineligible for pension. Due to such
non-entitlement, the widow was granted the alternate benefit
i.e., the service gratuity amount by computing the
entitlement under Rule 47(5)(i)of the Pension Rules.
Page 4 of 17
9. On account of the short duration of service rendered by
the deceased employee, the State’s counsel then argues that
the respondent’s husband cannot be granted invalid pension
under Rule 39 as the provision has to be conjointly read
with Rule 47 and Rule 56 of the Pension Rules which specify
the qualifying service of ten years and also the
consequences for those who do not satisfy the eligibility
criterion for qualifying service.
10. Per-contra, Mr. Kedar Nath Tripathi, learned counsel
for the respondent/applicant, would however argue that the
government employee was allowed to retire from service on
6.7.1996 on the ground of mental incapacity and since
invalid pension is envisaged under Rule 39 of the Pension
Rules for such prematurely retiring employees suffering
permanent incapacity, the Tribunal and the High Court have
rightly ordered for grant of invalid pension for the
respondent’s husband.
11. The learned counsel then submits that since the
government servant died within few days of retirement,
firstly he must be paid the invalid pension under Rule 39
and after his death on 24.7.1996, the respondent as the
widow, should be held entitled to family pension.
Page 5 of 17
12. The issue to be considered here is whether the minimum
qualifying service prescribed under the Pension Rules can be
ignored for the purpose of consideration of invalid pension
under Rule 39 of the Pension Rules. As a corollary, whether
the Tribunal or the High Court erred in directing invalid
pension for a government employee who did not have the
qualifying service, prescribed under the Pension Rules.
13. At this stage, the relevant provisions of the Pension
Rules are extracted hereinbelow for ready reference:-
“. . . . . . . . . . . . . . . . . . . .
39. Invalid Pension – (1) invalid
pension may be granted if a Government
servant retires from the service on
account of 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) Medical Board, in the case of all
Gazetted and specially declared Gazetted
Government servants, and
(b) A Chief District Medical Officer or
Medical Officer of equivalent status in
case of other Government servants.
47. Amount of pension (1)
******** ******** ****
Page 6 of 17
2 (a) ******** ******** ****
(b) In the case of Government servant
retiring in accordance with the provisions
of these rules before completing qualifying
service of thirty-three years, but after
completing qualifying service of ten years,
the amount of pension shall be
proportionate to the amount of pension
admissible under clause (a) and in no case
the amount of pension shall be less than
the minimum amount of pension admissible.
******** ******** ****
******** ******** ****
(5)(i) In the case of a Government servant
retiring in accordance with the provisions of
these rules before completing qualifying
service of ten years, the amount of service
gratuity shall be paid at a uniform rate on
half month’s emoluments for every completed
six monthly period of service.
56. Family Pension :
**** **** **** **** **** **** ****
(2) Without prejudice to the provisions
contained in Sub-rule (4) where a Government
servant dies-
**** **** **** **** **** **** *****
(c ) After retirement from service and was
on the date of death in receipt of pension,
or compassionate allowance, referred to in
Chapter IV other than the pension referred
to in rules 43 and 44 the family of the
deceased shall be entitled to family
pension, the amount of which shall be
Page 7 of 17
determined in accordance with the table
below.
. . . . . . . . . . . . . . . . . . . . . .“
14. The respondent’s husband, late Sagar Naik was appointed
on 22.8.1989 under the Rehabilitation Assistance Scheme as
his father late Suri Naik died in harness, while serving in
the M.K.C.G. Medical College and Hospital. The appointee
was however found to be suffering from mental incapacity and
accordingly, on the basis of the medical certificate issued
by the HoD of the Psychiatric Department of the S.C.B.
Medical College, Cuttack, the employee was retired from
service on 6.7.1996 on the ground of mental incapacity. The
case paper reveals that the service of the employee was
erratic, as he remained absent from 1.2.1995 to 23.7.1995
and was under suspension from 24.7.1995 to 6.7.1996. Thus
his net qualifying service for the benefits under the
Pension Rules was taken as 4 years 6 months and 29 days
only.
15. For government servants not completing ten years
qualifying service prescribed in Rule 47(5)(i) of the
Pension Rules, the service gratuity is to be paid at a
uniform rate of half month’s emolument for every completed
Page 8 of 17
six months period of service. Such gratuity benefit as also
the other terminal benefits like GPF, unutilized Earned
Leave, Death-cum-Retirement Gratuity (DCRG), etc. were
sanctioned and paid to the widow of the employee.
Moreover, respondent was also appointed as a sweeper under
the Rehabilitation Assistance Scheme and she is in regular
government service, since 12.6.2006.
16. The gratuity and other benefits and the compassionate
appointment was accepted by the respondent without raising
any additional claim towards invalid pension for her
deceased husband, who retired on 6.7.1996.Long after his
death on 24.7.1996, the respondent approached the Tribunal
to belatedly pray for firstly, fixation of pay for her
husband in the revised scale with effect from 1.1.1996 till
his superannuation and also to sanction family pension
benefits for the applicant, following the death of the
government employee (on 24.7.1996) along with all
consequential and terminal benefits. The respondent never
however prayed for invalid pension before the Tribunal.
Yet, the Tribunal ordered for invalid pension for the
respondent’s husband, under Rule 39 of the Pension Rules.
Page 9 of 17
17. When the Tribunal’s decision was challenged in the High
Court, the State specifically contended that Rule 39 has to
be read together with Rule 47 of the Pension Rules and the
specified qualifying service must be satisfied even for
claiming invalid pension. But the High Court without
adverting to the specific contention raised by the
appellants, dismissed the writ petition with a cryptic order
observing that the Tribunal has passed a reasoned order and
that the husband of the respondent is entitled to invalid
pension under Rule 39 of the Pension Rules.
18. The requirement of completing the qualifying service of
ten years for receipt of pension is prescribed under Rule
47(2)(b) and for those government employees who retire
before completing the qualifying service, alternate relief
is envisaged under the Pension Rules itself. How the service
gratuity is to be computed, is also prescribed in Rule
47(5)(1) of the Pension Rules.
19. The respondent’s husband was retired on the ground of
mental infirmity and hence the service gratuity was paid and
the widow had received the same, without any demur. She
never raised any claim for invalid pension either at the
time of retirement on 6.7.1996 or even when she approached
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the Tribunal i.e. 14 years later in the year 2010.
Nevertheless, the Tribunal went beyond the prayers in the
O.A. No. 18(B)/2010 and ordered for invalid pension for late
Sagar Naik and then following his death, ordered for family
pension for the widow. In declaring such entitlement the
High Court and the Tribunal however ignored the qualifying
service of ten years as prescribed in the Pension Rules
although the State specifically argued that the qualifying
service criterion has to be satisfied not only for the
regular pension but also for the invalid pension since both
claims are to be considered under the very same Pension
Rules.
20. An employee becomes entitled to pension by stint of his
long service for the employer and, therefore, it should be
seen as a reward for toiling hard and long for the employer.
The Pension Rules provide for a qualifying service of 10
years for such entitlement. When the question arises as to
how certain provisions of the Pension Rules are to be
understood, it would be appropriate to read the provision in
its context which would mean reading the statute as a whole.
In other words, a particular provision of the statute should
be construed with reference to other provisions of the same
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statute so as to construe the enactment as a whole. It would
also be necessary to avoid an interpretation which will
involve conflict with two provisions of the same statute and
effort should be made for harmonious construction. In other
words, the provision of a Rule cannot be used to defeat
another Rule unless it is impossible to effect
reconciliation between them. Pension as already stated is
earned by stint of continuity and longevity of service and
minimum qualifying service should therefore be understood as
the requirement for invalid pension as well. The Pension
Rules can be harmoniously construed in this manner and in
that event, there shall be no clash between different
provisions in the said Rules.
21. The condition of qualifying service prescribed in the
Pension Rules must be satisfied to become eligible for
invalid pension and the arguments made to the contrary that
invalid pension can be claimed under Rule 39 without
satisfying the stipulated qualifying service mentioned in
the same Rules, do not appeal to us. The respondent’s
husband who had served for lesser years then the 10 years
qualifying service, was found entitled by his employers to
service gratuity only, because of his premature retirement
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on the ground of mental incapacitation and this is what is
prescribed by the Pension Rules. The dues toward service
gratuity was paid accordingly. The Pension Rules definitely
envisaged that there could be a situation where an employee
may not be eligible for pension benefits for not satisfying
the prescribed qualifying service of 10 years. For those
with less than 10 years’ service, the Pension Rules provide
for gratuity payment and therefore, it is difficult for us
to conclude that for invalid pension, qualifying years of
service, can be ignored.
22. The above view of ours is supported by the ratio in
Union of India and Another Vs. Bashirbhai R. Khiliji1, where
this Court was considering claim for invalid pension for an
armed constable in the CRPF who suffered from pyrogenic
meningitis and neurosensory deafness (bilateral). In that
case, the CRPF personnel was declared unfit for active duty,
and he was invalidated from service. He applied to
authorities for invalid pension but that was rejected on the
ground that he had not completed the qualifying service of
10 years. Instead, he was paid service gratuity. The High
Court in that case however, took the view that since the
CRPF Constable’s invalidity was 100 per cent, he was
1(2007) 6 SCC 16
Page 13 of 17
entitled to invalid pension and the stipulation of 10 years
of qualifying service could not be invoked to deny him the
invalid pension. However, Justice A.K. Mathur, speaking for
a two judge Bench of this Court while interpreting similar
provisions in the applicable Rules, negated the High Court’s
view and pronounced on the issue of qualifying service for
invalid pension, in the following manner:-
“. . . . . . . . . . . . . . . . . . . . . .
9. We are presently concerned with two
provisions of the Rules i.e., Rule 38 and
49. Rule 38, as reproduced above,
contemplates the invalid pension. The
procedure has been mentioned therein i.e. in
case an incumbent retires from service on
account of bodily or mental infirmity which
permanently incapacitated him for the
service, then a medical certificate of
incapacity shall be given by the authorities
concerned and in particular Form 23 the same
may be applied before the competent
authority. It is true that the qualifying
service is not mentioned in Rule 38 but Rule
49 which deals with the amount of pension
stipulates that a government servant
retiring in accordance with the provisions
of these Rules before completing qualifying
service of ten 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.
Therefore, the minimum qualifying service of
ten years is mentioned in Rule 49. The word
“qualifying service” has been defined in
Rule 3(1)(q) of the Rules which read as
under:
Page 14 of 17
“3. (1)(q) ‘qualifying service’ means
service rendered while on duty or otherwise
which shall be taken into account for the
purpose of pensions and gratuities
admissible under these Rules;”
10. Therefore, the minimum qualifying
service which is required for the pension as
mentioned in Rule 49, is ten years. The
qualifying service has been explained in
various memos issued by the Government of
India from time to time. But Rule 49 read
with Rule 38 makes it clear that qualifying
service of pension is ten years and
therefore, gratuity is determined after
completion of qualifying service of ten
years. Therefore, for grant of any kind of
pension one has to put in the minimum of ten
years of qualifying service. The respondent
in the present case, does not have the
minimum qualifying service. Therefore, the
authorities declined to grant him the
invalid pension. But the amount of gratuity
has been determined and the same was paid to
him.
. . . . . . . .. . . . . . . . . . . . . .”
(Underlining added)
23. The above enunciation of the law on requirement of
qualifying service for invalid pension by the bench of two
judges is reiterated and approved by us.
24. In a case like this, the need for compassion and the
compliance of the norms has to be balanced. As earlier
noted, the allowable gratuity benefits were granted on
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account of the respondent’s husband and after he died, the
widow was appointed (on 12.6.2006) in a government job under
the Rehabilitation Assistance Scheme. Thus, the needed
means of sustenance was provided to the deceased’s family.
25. The respondent’s husband had not served for ten years
and was therefore, he disentitled for regular pension. For
the same reason, he cannot also be held entitled to invalid
pension. The different provisions of the Pension Rules
cannot be read in isolation and must be construed
harmoniously and the requirement of qualifying service
cannot be said to be irrelevant for claiming different
service benefits under the same Rules. Here the employee did
not satisfy the requirement of qualifying service and
therefore the invalid pension could not have been ordered
for him, under Rule 39 of the Pension Rules.
26. In the above context, it will bear emphasis that the
respondent never prayed for invalid pension for her husband
in her O.A. and yet the Tribunal as well as the High Court
granted her the unclaimed relief. Such additional
munificence, in addition to the job provided to the first
respondent under the Rehabilitation Assistance Scheme for
Page 16 of 17
the sustenance of the deceased’s family, in our view, was
unwarranted and the impugned order cannot be sustained.
27. In view of the foregoing, the impugned orders of
Tribunal and the High Court are set aside and the Appeal
stands allowed. The parties to bear their own cost.
………………………………………………J.
[R.BANUMATHI]
………………………………………………J.
[A.S.BOPANNA]
………………………………………………J.
[HRISHIKESH ROY]
NEW DELHI
DECEMBER 04, 2019.
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