Invalid pension under Rule 38 of the CCS (Pension) Rules, 1972, is admissible to a government servant who retires due to bodily or mental infirmity permanently incapacitating him for service, irrespective of the completion of 10 years of qualifying service.

( 1 ) ON the 6th of November, 1984, the petitioner was examined by the Medical Board and the following report was given about his physical condition:

"i. CERTIFIED that I/wehave carefully examined No. 761010117 NK RO Mahinder Pal Singh, s/o Late Shri Babu Ram in the Base Hospital No. I, CRPF, New Delhi. His age by his own statement is 35 years and by appearance about 35 years. l (We) consider No. 761010117 NK RO Mahinder Pal Singh s/o late Shri Babu Ram to be completely and permanently incapacitated for further service of any kind in the Department to which he belongs in consequent of Head Injury (Effect of) (here state disease or cause ). His incapacity does not appear to rne/ us to have been caused by irregular or intemperate habits. "

( 2 ) THAT he had served on the date when he sustained injury for eight years and seven months is common ground. The petitioner claimed pension on the basis of the medical report because he was not in a position to serve in view of his ill-health, and that was not given to him. Therefore, he has approached this Court claiming the relief under Rule 38 (3) of the CCS (Pension) Rules, 1972 as invalid pension.

( 3 ) THE answer by the respondent is that one must have served for ten years before one became eligible to claim pension and inasmuch as the petitioner admittedly had not served for ten years, he would not be entitled to pension.

( 4 ) THEREFORE, the question is: Whether as per the terms of the Rule 38 of the CCS (Pension) Rules, 1972 the petitioner would not be entitled to invalid pension? Rule 38 of the CCS (Pension) Rules, 1972 reads as under:

" (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 and of a non-gazetted Government servant whose pay, as defined in Rule 9 (21) of the Fundamental Rules, exceeds 2[two thousand and two hundred rupees] per mensem; (b) Civil Surgeon or a District Medical Officer or Medical Officer of equivalent status in other cases. Note 1.-No medical certificate of incapacity for service may be granted unless the applicant produces a letter to show that the Head of his Office or Department is aware of the intention of the applicant to appear before the medical authority. The medical authority shall also be supplied by the Head of the Office or Department in which the applicant is employed with a statement of what appears from official records to be the age of the applicant. If a service book is being maintained for the applicant, the age recorded therein should be reported. Note 2.-A lady doctor shall be included as a member of the Medical Board when a woman candidate is to be examined. (3) The form of the Medical Certificate to be granted by the medical authority specified in sub-rule (2) shall be as in Form 23. (4) Where the medical authority referred to in sub-rule (2) has declared a Government servant fit for further service of less laborious character than that which he had been doing, he should, provided he is willing to be so employed, be employed on lower post and if there be no means of employing him even on a lower post, he may be admitted to invalid pension. (5) Deleted. "

( 5 ) ACCORDING to the respondents, under Rule 38, the amount of pension could be fixed on an officer completing qualifying service of ten years and, therefore, by applying Rule 49, the amount of pension for the petitioner cannot be fixed as he had not completed qualifying service of ten years. Rule 49, which speaks of amount of pension, reads as under:

" 1 [ (1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service often years, the amount of service g