2025:UHC:5864-DB HIGH COURT OF UTTARAKHAND AT NAINITAL JUSTICE SHRI MANOJ KUMAR TIWARI AND JUSTICE SHRI SUBHASH UPADHYAY Special Appeal No.1003 of 2018 July 8, 2025 Director General, Border Security Force & Anr. … Appellant Versus Ex. Constable 94106385 Khem Chand …Respondent ------------------------------------------------------------------------------ Presence:- Mr. Manoj Kumar, Standing Counsel for the Union of India/respondents Mr. Dinesh Gehtori, Advocate for the respondent ------------------------------------------------------------------------------ The Court made the following: JUDGMENT: (per Hon’ble Justice Sri Manoj Kumar Tiwari) 1. This intra-court appeal is directed against the judgment and order dated 27.06.2018 passed by learned Single Judge in Writ Petition (S/S) No.2304 of 2015. Operative portion of the said judgment is extracted below:- “9. It is evident from letter dated 20.08.2007 (annexure no.8) that the petitioner was found medically unfit under the provisions of Rule 25 of the B.S.F. Rules 1969 and was retired being unfit. The petitioner has prayed for pensionary benefits. The case, as noticed hereinabove, was taken up before the higher authorities and it was returned stating that the petitioner has not completed 10 years of service. 1 2025:UHC:5864-DB 10. In view of discussions made hereinabove, the petitioner had completed 12 years, 8 months and 26 days. The order of dismissal was stayed by this Court. The petitioner was reinstated on 24.03.2004. He joined his duties on 05.04.2004. Thus, the period between 2000 to 2004 was liable to be counted as qualifying service. In alternative, respondents are also required to give the petitioner suitable posting instead of retiring him on the ground of unfitness. He has acquired the disease during the course of his employment. He was medically examined at the time when he was enrolled in B.S.F. He was not suffering from this ailment. He suffered this ailment after his enrolment in B.S.F. on 24.11.1994. In case, he was suffering from any disease, it could be detected when he faced the Medical Board at the time of his enrolment. 11. Accordingly, the writ petition is allowed. Annexure No.8 is quashed and set aside by molding the relief that the petitioner will be deemed to be in service w.e.f. 34.08.2007 and the respondents will give him suitable post as per the provisions of Section 47 of the Act or in alternative, the respondents shall pay the petitioner invalid pension with all consequential benefits.” 2. Appellant has challenged the aforesaid judgment on following two counts:- (i) Respondent (writ petitioner) had only sought a writ of mandamus to release pension to him w.e.f. September, 2007 with arrears of pension and interest thereon, therefore, 2 2025:UHC:5864-DB learned Single Judge was not justified in granting relief of reinstatement to him. (ii) Respondent (writ petitioner) has not completed 10 years of qualifying service, therefore, the direction to grant pension to him, as an alternative to the relief of reinstatement, is not sustainable. 3. From the relief clause of the writ petition, it is apparent that respondent had only sought a direction to release pension to him. Therefore, the first ground of challenge is valid. As regards the second ground of challenge, learned counsel for the respondent submits that his client was enrolled in Border Security Force on 24.11.1994; he was terminated from service without holding any inquiry, vide order dated 27.10.2000; the termination order was challenged by him in Writ Petition (S/B) No.1744 of 2002 and the operation of the termination order was stayed by Division Bench of this Court, vide order dated 09.12.2002. However, despite the interim order passed by Division Bench, respondent was not taken back in service and he was ultimately reinstated on 24.03.2004 only when contempt proceedings were drawn against the authorities. 4. Learned counsel for the respondent submits that respondent was ultimately discharged from service w.e.f. 21.08.2007, on medical ground, vide order dated 20.08.2007, therefore, according to him, the total length of service, which his client rendered in B.S.F. between 24.11.1994 till 21.08.2007, is about 13 years. 3 2025:UHC:5864-DB 5. Learned counsel for the appellant, however, disputes the submission regarding length of service rendered by respondent and submits that respondent has put in only 12 years 8 months and 26 days of total service out of which 4 years 1 month and 1 day is non- qualifying service for pension. 6. We find substance in the submission made on behalf of respondent that he has completed more than 10 years of service in B.S.F. 7. It is not in dispute that respondent was appointed w.e.f. 24.11.1994 and he served till his termination, vide order dated 27.10.2000. Respondent was entitled to be reinstated immediately upon passing of interim order passed by Division Bench of this Court, which was passed on 09.12.2002 and he was ultimately discharged from service, on medical grounds, w.e.f. 21.08.2007. Thus, the entire period between 09.12.2002 when interim order was passed till discharge of respondent from service i.e. 21.08.2007, which comes to 4 years 8 months and 12 days has to be taken as qualifying service for pension. If this period is added to the services rendered by respondent between 24.11.1994 till 27.10.2000, then it goes well beyond 10 years. Learned counsel for the appellant concedes that qualifying service needed for pension is 10 years. 8. Since learned Single Judge arrived at the conclusion that total service rendered by respondent goes well beyond required minimum 10 years and we 4 2025:UHC:5864-DB concur with the reasoning given by learned Single Judge for arriving at the said finding, therefore, we partly allow this appeal and interfere with that part of the impugned judgment where B.S.F. authorities were directed to reinstate the respondent in service by giving benefit of Section 47 of Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995. Accordingly, the direction issued by learned Single Judge for reinstatement is set- aside. However, we uphold the direction issued by learned Single Judge regarding grant of pension by providing that the Competent Authority in B.S.F. shall grant pension to the respondent, as per Central Civil Services (Pension) Rules, 1972. (Subhash Upadhyay, J.) (Manoj Kumar Tiwari, J.) 08.07.2025 08.07.2025 Rajni 5 RAJINI GUSAIN Digitally signed by RAJINI GUSAIN DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=97cfa6e4cbd49c07b876db48448 ac3701a9ae475a2547e4b7f1d9b1f17d013 42, postalCode=263001, st=UTTARAKHAND, serialNumber=8D039BC77BD1A2222B4D F4FC80D4557562F95BEBA013F530616A1 58A0A878BD8, cn=RAJINI GUSAIN Date: 2025.07.09 21:40:27 -07'00'