O R D E R

The petitioner was appointed as Coast Guard on 26.06.1985 under the respondents and was discharged from service on 13.06.1986 on medical invalidation for having acquired pulmonary tuberculosis out of stress and strain of his employment. A duly constituted Medical Board opined that he has suffered the disease out of work pressure and 100% disabled to continue in any service. He was granted disability pension, but service pension on medical invalidation was given. Aggrieved over the same, he approached this Court by way of a writ petition in W.P.No.18749 of 1999. This Court, considering the rule position has directed the respondents to grant pension to him under Rules 38 and 49 of CCS (Pension) Rules. The respondents reconsidered the issue in the light of direction issued by this Court and ordered lumpsum payment of Rs.920/- under Rule 38 in lieu of invalid pension by their order Quoting:00585 dated 26.10.2009. The present writ petition has been preferred challenging the validity of the order.

2. According to the petitioner, this Court has given a positive direction to grant pension in accordance with Rules 38 & 49 of CCS (Pension) Rules (hereinafter called as “Rules”), whereas to circumvent the same, the respondents contumaciously passed the impugned order. In the light of the orders passed by the Hon'ble Supreme Court in SLP.No.20339 of 2011 dated 14.03.2019 it is clarified that all eligible persons are entitled to invalid pension irrespective of number of years of service in view of O.M.NO.21/01/2016–P & PW(F), Ministry of Personnel, Public Grievances and Pensions Welfare Department dated 12.02.2019. The petitioner is entitled to receive the invalid pensions with retrospective effect as held by the Hon'ble Supreme Court in State Bank of India Vs. V.Ramakrishnan and others [2018 (17) SCC 394], as the amendment to Rules 38 & 49 of the Rules being clarificatory will take effect from the date of enactment.

3. However the learned Senior Central Government Standing Counsel would contend that petitioner is not entitled to pension under Rule 38 as he has put in only 11 months and 16 days of service. As per Rule 49 of the Rules the petitioner was ineligible for grant of pension as he had not completed 10 years of service. The judgment of Hon'ble Supreme Court in S.L.P.No.20339 of 2011 dated 14.03.2019 dealt with Rule 38 of the Rules with reference to Rule 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. On the date of discharge of the petitioner the above Act of 1995 was not enacted. Moreover vide Gazette of India No.15 dated 13.04.2002, Ministry of Social Justice and Empowerment and Notification No.1173 dated 28.03.2002, Armed force is exempted from the purview of the Act. Hence the petitioner cannot rely on an interim order of the Supreme Court of the year 2019 to his advantage. The petitioner's request was considered in compliance with the direction of this Court and suitable orders were passed as per Extant Rules. It is clarified by Principal Controller of Defence Accounts (Pension) Allahabed vide letter dated 15.07.2019 that Office Memorandum dated 12.02.2019, relied on by the petitioner would be effective from the date of implementation. Hence the petitioner is not entitled to the benefits as per O.M dated 12.02.2019 and the writ petition is liable to the dismissed.

4. Heard the rival submission.

5. There is no dispute about the fact that the petitioner had joined the service under the respondent, put in 11 months and 16 days of service and thereafter boarded out on medical invalidation. The duly constituted Medical Board declared him permanently disabled to hold any other post due to the ailment arose during and out of stress and strain of his employment under the respondent. He was granted disability pension but was refused service pension. This Court directed the respondents by its order dated 30.06.2009 in W.P.No.18749 of 1999 to grant pension to him un