SHARMA, J. - (1.) THE petitioner, a Lance Nayak in Border Security Force (BSF) was boarded out of service on the ground of physical unfitness on February 15, 1975. Initially financial assistance in the sum of Rs. 50/- per month was provided to him but that too was stopped after February, 1985. In the instant writ petition the petitioner claimed pension. Pending the writ petition, the petitioner expired on April 1, 2003 and his legal representatives sought permission to continue the petition.
(2.) THE respondents in the return pleaded that since the petitioner had served only for a period of seven years nine months and eighteen days and did not complete ten years of service, he was not entitled to pension. It was also averred that financial assistance of Rs. 50/- per month for ten years was paid to the petitioner out of BSF Benevolent Funds. THE respondents admitted the fact that the petitioner had fallen sick during the course of service, but the record of Medical Board was not made available to the petitioner as the same was damaged in flood. I have given my anxious consideration to the rival submissions and carefully weighed the material on record. Two questions arise for my consideration: (i) Whether invalid pension ought to have been paid to the petitioner? (ii) Whether after the death of petitioner his wife is entitled to family pension? This fact is not in dispute that the petitioner stood discharged on the ground of physical unfitness on February 15, 1975 in view of Rule 25 of the Border Security Force Rules, 1969 (for short `1969 Rules' ). Since 1969 Rules do not provide for Invalid pension and Family pension, provisions contained in Central Civil Services (Pension) Rules, 1972 (for short `172 Rules') shall be made applicable to the facts of the instant case in view of Rule 2 of 1972 Rules.
(3.) RULE 38 of 1972 RULEs, which relates to Invalid pension, provides 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 a non-Gazetted Government servant whose pay, as defined in RULE 9 (21) of the Fundamental RULEs, exceeds seven hundred and fifty rupees per mensem; (b) Civil Surgeon or a District Medical Officer or Medical Officer of equivalent status in other cases. (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. " A look at the aforequoted provision goes to show that for the purpose of granting Invalid pension a government servant should have retired from the service on the ground of physical unfitness. It is not at all necessary that he should serve at least for a minimum period of ten years. Since the petitioner was boarded out of service on the recommendation of Medical Board, he was entitled to Invalid pension since February 15, 1975 in view of Rule 38 of 1972 Rules. After the death of petitioner his wife Rukmani Devi is entitled to Family pension in accordance with Rule 5 and 81 of 1972 Rules. ;