Entitlement to disability pension under the Central Civil Services (Extraordinary Pension) Rules is determined by the attribution of the injury to government service and the calculation of disability pension under Rule 9(3).

(ORAL)

Heard Mr. S.Rana, learned counsel appearing for the petitioner and also Mr. R.Debnath, CGC appearing for the respondents No. 1 & 2.

2. By this writ petition, the petitioner is praying for a direction to the respondents to pay the disability pension to the petitioner. The petitioner was initially recruited in the Assam Rifles and allotted his service number being No. TC-69775 (AR No. G/5000649)/Rect/GD and sent for training. During the course of rigorous training, the petitioner got fractured on his left leg. The injury suffered by the petitioner had been diagnosed as “FRACTURE NECK OF FEMUR LT (OPTD)”. Because of the fracture on his left leg the petitioner had been declared unfit and discharged on 30.04.2005. It is an undisputed case of both the parties that the injury suffered by the petitioner was attributable to service. But the respondents denied the disability pension to the petitioner on the grounds that the percentage of disability suffered by the petitioner was assessed only to 20% and as per para 9 (1) & (3) of CCS (Extraordinary Pension) Rules for granting disability pension the percentage of disability should not be less than 60%.

3. The petitioner also filed a representation to the competent authority for granting disability pension but his representation had been rejected by the competent authority (impugned Order dated 10.10.2008) and informed the petitioner that as per Para 9 (3) of the CCS (Extraordinary Pension) Rules for granting of disability pension, the percentage of disability should not be less than 60%. A copy of the said letter dated 10.10.2008 is available at Annexure – 5 to the writ petition.

4. The respondents had filed the affidavit-in-opposition. In para 4 of the affidavit-in-opposition, it is also stated that the petitioner is not eligible for grant of invalid pension under Rule 49 (2) (b) because lack of mandatory 10 (ten) years qualifying service for invalid pension under CCS Rules 1972. In para 15 of the affidavit-in-opposition, the respondents had admitted that the injury suffered by the petitioner was attributable to service. It appears from the affidavit-in-opposition filed by the respondents and also the impugned letter dated 10.10.2008 that the respondents had misread the provisions of the Central Civil Services (Extraordinary Pension) Rules and the Central Civil Services (Pension) Rules, 1972.

5. Rule 3-A.(1)(a) of the Central Civil Services (Extraordinary Pension) Rules clearly provides that disablement shall be accepted as due to Govt. service provided it is certified that it is due to wound, injury or disease which is attributable to service. Rule 3-A.(1)(a) of the CCS (Extraordinary Pension) Rules is reproduced herein under:

“3-A. (1)(a) Disablement shall be accepted as due to Government service provided that it is certified that it is due to wound, injury or disease which –

(i) is attributable to Government service, or

(ii) existed before or arose during Government service and has been and remains aggravated thereby.”

Therefore, the requirements provided under Section Rule 3-A(1)(a) of the Central Civil Services (Extraordinary Pension) Rules are fulfilled by the petitioner and also injury suffered by the petitioner is attributable to service.

6. Rule 9 of the Central Civil Services (Extraordinary Pension) Rules speaks only about the amount of disability pension. In other words, Rule 9 stipulates as to how the amount of the disability pension is to be calculated. Rule 9 (3) of the Central Civil Services (Extraordinary Pension) Rules stipulates that in the case of disablement, if it is not less than 60%, his monthly disability pension shall be related to the family pension admissible to the widow. Therefore, it is clear that Rule 9 (3) only speaks about the amount of disability pension for the employee, who suffered not less than 60% disablement.

7. The Govt. of India had taken the decision regarding the Disability Pension and rates as follows:

“(1) Revised provisions effe