JUDGMENT
Permod Kohli, J.
1. Petitioner is the widow of late Phagu Ram, who was Cosntable in Border Security Force (BSF) with Enrollment No. 67533209 in Battalion 53. According to the averments made in the petition, late Phagu Ram was recruited as constable in BSF in the year 1963 on selection by the Board including medical examination and he was found medically fit. He continued to serve BSF till July 1972, when he was declared medically unfit for retention in the service and invalidated out. He was sent to home under critical physical condition and died on 20.12.1972. Petitioner claims to have made various representations to the respondents for family pension being widow of the deceased constable. She has explained the delay in filing this petition on the ground that, few months after the death of her husband, she suffered paralysis and her limbs became crippled. She lost considerable eye sight due to sufferings and ailment. It was only after long ailment, when she recovered and was able to file present writ petition. Her representations were responded to only in the year 1994 when the Directorate of Border Security Force, New Delhi directed the Commandant, 53 Battalion, BSF to examine the case of the petitioner. However, no decision has been communicated to her till date. Accordingly, petitioner seeks a direction for grant of pensionary benefits for the service rendered by her deceased husband spreading over a long period of nine years.
2. In the reply filed by the petitioner, it is stated that the deceased husband of the petitioner was enrolled in 45 Battalion PAP on 23.4.1963 and thereafter embodied into 53 Battalion BSF on 1.6.1967. He had been confirmed in the rank of Constable w.e.f. 1.1.1971. Late constable was however, declared unfit for service in Border Security Force by a medical board of officers held on 5.7.1972 and he was invalidated out from service on 5.8.1972 under Rule 25 of BSF Rules, 1969. Regarding the claim of the petitioner for pensionary benefits, it has been stated that the deceased had not completed qualifying service often years at the time of his invalidating out of service in 1972 and hence he is not entitled to pensionary benefits. The claim of the petitioner was received from PAD, BSF, New Delhi vide letter No. PAD/DISC/MISC/53 Bn/BSF/94 dated 5.12.1994. Accordingly, PAD was informed vide Signal No. A/7041 dated 23.3.1995 that the deceased husband of the petitioner was invalidated out from BSF service on 4.8.1972. Late constable having put less than 12 years qualifying service, was not found entitled to pension. Deceased has rendered only 9 years, 3 months and 12 days service, disentitling him for the pension.
3. Mr. P.S. Dutta, learned counsel for petitioner has referred to CCS (Pension) Rules. Rule 38 deals with invalidating pension, which reads as under:-
“38. Invalid pension
(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 (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.”
4. It is urged on behalf of petitioner that this rule does not prescribe any limit of minimum service to enable a person to become entitled for invalidating pension under rules. He has further referred to government instructions dated 24.8.1994, which are appended to the aforesaid rule. Mr. Ajay Sharma, learned counsel appearing for respondents on the other hand, relied upon Rule 25 of BSF Rules, which reads as under:
“25. Retirement of subordinate officers and enrolled persons on grounds of physical unfitness:
(1) Where a Commandant is satisfied that a Subedar, a Sub-Inspector or an enrolled person is unable to perform his duties by reason of any physical disability, he may direct that the said Subedar, Sub-Inspector or the enrolled person, as the case may be, brought before a Medical Board.
(2) The Medical Board shall be constituted in such a manner as may be determined by the Director General.
(3) Where the said Subedar, Sub-Inspector or enrolled person is found by the Medical Board to be unfit for further service in Force the Inspector General, the DIG or, as the case may be, the Commandant may, if he agrees with the finding of the Medical Board order the retirement of the Subedar, Sub Inspector or as the case may be, the enrolled person:
Provided that before the said Subedar, or Sub Inspector or as the case may be, the enrolled person is so retired the finding of the Medical Board and the decision to retire him shall be communicated to him.
(4) The Subedar, the Sub Inspector or as the case may be, the enrolled person may, within a period of fifteen days from the date of receipt of such communication, make a representation to the officer next superior in command to the one who ordered the retirement.
(5) The said superior officer shall have the case referred to a Review Medical Board which shall be constituted in such a manner as may be determined by the Director General.
(6) The superior officer may, having regard to the finding of the Review Medical Board, pass such order as he may deem it.
(7) Where a representation has been made to a superior officer under Sub-rule (4), an order passed under Sub-rule (3), shall take effect till it is confirmed by such superior officer.”
5. It is the case of respondents that petitioner is not entitled to pension as claimed having rendered less than ten years of service. As far invalid pension is concerned, only rule which is applicable, is Rule 38. This rule does not prescribe any minimum period of service to be rendered by member of service and rightly so because nobody knows when such a situation arise, where a person may suffer from any ailment and may be required to be invalidated out from service on account of any such ailment on being found unfit for retention in service. Respondents have placed reliance upon judgment of the Apex Court in Union of India and Ors. v. Rakesk Kumar. This judgment relates to the entitlement of a member of force for pensionary benefit on account of his resignation and does not deal with the question involved in the present writ petition. The aforesaid judgment passed in Civil Appeal No. 6166 of 1999, decided on March 30,2001, has no application to the facts and circumstances of the present case. Respondents have not been able to point out any other rule, which disentitles the petitioner for pension for the service rendered by her deceased husband, who was invalidated out from service on account of ailment.
6. This petition is accordingly allowed. Respondents are directed to release invalid pension in favour of the petitioner in accordance with rules.