Nikhat Parveen Abdul Waheb Shaikh v. Union of India

1. By this Petition, the challenge by the petitioner, a teacher working in a school run by the Cantonment Board, is to the communication refusing to grant her invalidated pension under Rule 38 of Central Civil Services (Pension) Rules, 1972 (“Pension Rules”, for short). The petitioner, vide undated communication, informed the Chief Executive Officer of the Cantonment Board that though her pension was started and in fact, she did receive the pension up to January–2014 for 11 months, due to some mistake, her pension was stopped from February–2014. This was in response to the communication issued by the Cantonment Board vide letter dated 14th February 2014 to submit a medical certificate issued by the Civil Surgeon from Sasoon Hospital for audit so that the request for grant of pension could be considered. By an Advocate’s notice dated 26th December 2016, a similar request was made by the petitioner for grant of pensionary benefits.

2. By communication dated 18th November 2016, the Cantonment Board informed the petitioner that her name had been struck off from the Payroll of the Cantonment Board’s Establishment. It was indicated that the Pension Department paid pension w.e.f. 1st April 2013 to 31st January 2014. As per the said communication, in view of the Pension Rules, a Government Servant on resignation with qualifying service less than 20 years is not entitled to pension. The petitioner is directed to refund the pension amount of Rs.1,29,174/- (Rupees One Lakh Twenty Nine Thousand One Hundred Seventy Four) erroneously paid. The request for pension was, therefore, rejected.

3. Learned counsel for the petitioner submitted that the petitioner had admittedly worked for more than 17 years. It is submitted that on account of the medical-illness the petitioner suffered, she was incapacitated from discharging her duties and therefore, was left with no other alternative but to seek discharge from service. It is further submitted by learned counsel that the petition is for grant of invalidated pension under Rule 38 of the Central Civil Services (Pension) Rules, 1972.

4. Learned counsel for the Cantonment Board, on the other hand, supported the decision of the Board in denying the pensionary benefits. It is submitted that as the petitioner did not complete the qualifying service of 20 years, she is not entitled to any pensionary benefits. It is further submitted that as the petitioner resigned from service, there is no question of granting her any pensionary benefits. Learned counsel further submitted that the medical certificate relied upon by petitioner though entitles her for the benefits in accordance with the Rules, however, as per Rule 38, the Medical certificate issued by the Civil Surgeon of Civil Hospital is an essential requirement. It is submitted that the petitioner has relied upon the Medical certificate issued by the Medical Superintendent and hence, does not fulfill the essential condition for considering her claim for invalidated pension under Rule 38.

5. We have heard the learned counsel. There is no dispute that the petitioner has worked for more than 17 years. During the course of employment, the petitioner developed a physical illness, as a result, the petitioner was permanently incapacitated for further service in the department. Rule 38 of the CCS (Pension) Rules which governs the case of the petitioner as was applicable on the date when the claim was made needs to be extracted for the facility of reference, which reads thus:- “38. Invalid pension.—(1) The case of a Government servant acquiring a disability, where the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of

1996) are applicable, shall be governed by the provisions of the said section: Provided that such employee shall produce a disability certificate from the competent authority as prescribed under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996, as amended from time to time. (2) If a Government servant, in a case where the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996) are not applicable, retires from the service on account of any bodily or mental infirmity which permanently incapacitates him for the service he may be granted invalid pension or service gratuity in accordance with Rule 49, depending upon the length of his qualifying service on the date of retirement. (3) Where a Government servant, referred to in sub-rule (2), applies for an invalid pension, he shall be required to 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 fifty-four thousand 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 and 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, and 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. (4) The form of the Medical Certificate to be granted by the medical authority specified in sub-rule (3) shall be as in (5) Where the medical authority referred to in sub-rule (3) has declared a Government servant mentioned in sub-rule (2) fit for further service of less laborious character than that which he had been doing, he shall, 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 or service gratuity, as the case may be, under Rule 49.]”

6. The Pension Rules require the petitioner to obtain a Medical certificate from the Civil Surgeon, Civil Hospital. The materials on record indicate that the Cantonment Board by communication dated 14th February 2014, requested the Civil Surgeon–Sasoon Hospital, Pune to issue a Medical Examination Certificate based on her illness at the earliest as the Audit Authority required the Medical certificate by the Civil Surgeon only. The petitioner was examined. The medical certificate for permanent incapacity from further service was issued under the signature of the Certifying Authority i.e. Medical Superintendent, Sasoon General Hospital, Pune–411 001 on 20th June

2014. On record is also the communication addressed by the Medical Superintendent–Sasoon General Hospital to the Chief Executive Officer, Cantonment Board, Kirkee that the petitioner had appeared before him for her medical examination on 20th June 2014 and he found her to be permanently incapacitated for further government service on account of the illness mentioned therein.

7. No doubt, the requirement of the Rules is of Medical certificate issued by the Civil Surgeon of the Civil Hospital. The communication, therefore, was addressed by the Cantonment Board to the Civil Surgeon. There is no dispute that the petitioner was medically examined by the Medical Superintendent who is the Certifying Authority. On the basis of the request made by the Cantonment Board to the Civil Surgeon, if the petitioner has been examined by the Medical Superintendent of the Sasoon Hospital, who is the Certifying Authority to issue the medical certificate, this cannot be regarded as a failure of the petitioner to comply with the requirement of the Pension Rules. In such circumstances, the Cantonment Board or the Audit Department is not justified in insisting on the certificate of the Civil Surgeon.

8. The Medical certificate of the Sasoon Hospital itself records that the Medical Superintendent is the Certifying Authority. The illness of the petitioner or the fact that she is permanently unfit for government service is not in debate. No contra material is placed on record. The petitioner presented herself before the Civil Surgeon as directed by the Cantonment Board. She was examined by the Medical Superintendent. The certificate was issued by the Medical Superintendent of the Sasoon Hospital as per the instructions of the Civil Surgeon. In cases of such nature, the substance is required to be given importance rather than the form. The petitioner has complied with the directions issued. If the Civil Surgeon of the Sasoon Hospital on the basis of the request letter of the Cantonment Board has adopted such a course of action, we fail to understand how the petitioner could be expected to prevail upon the Civil Surgeon to issue the Certificate only in the form they want. This is a matter between the Board and the concerned Civil Surgeon. The claimant cannot be made to run from pillar to post to suit the requirement of the department when there is substantial compliance of the Rules. The petitioner was obligated to be present for the medical examination in lieu of the requisition, which she did. It is not for the petitioner to make the Civil Surgeon understand the nitty gritties of the working of the Rule. This is too much to expect from someone who is undergoing a medical examination. The Medical Superintendent is the Certifying Authority. His competency is not in doubt. In such circumstances, the order passed by the Cantonment Board and/or the Audit Department rejecting the claim of the Petitioner on the ground that the medical certificate is not issued by the Civil Surgeon calls for interference.

9. The Petition, therefore, succeeds. The impugned communication is quashed and set aside. The petitioner is held entitled to invalid pension under Rule 38 of the Pension Rules.

10. The petitioner be paid arrears within a period of sixteen (16) weeks from the date of communication of this order. The Respondents are permitted to make necessary adjustments in respect of the pension already paid to the Petitioner from the arrears due and payable.

11. Pending Applications, if any, also stand disposed of. (S. M. MODAK, J.) (M. S. KARNIK, J.)