Page No.# 1/21 GAHC020004082024 2025:GAU-NL:588 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : WP(C)/144/2024 SHRI IMNAPOKYIM EX. CONSTABLE NO . 7788, 2ND NAP BATTALLION, ALICHEN, PRESENT RESIDENT OF MOKOKCHUNG VILLAGE, MOKOKCHUNG VERSUS STATE OF NAGALAND AND 3 ORS THROUGH THE HOME COMMISSIONER, NAGALAND CIVIL SECRETARIAT, KOHIMA, 797004 2:THE SPECIAL SECRETARY TO THE GOVERNMENT OF NAGALAND HOME DEPARTMENT POLICE ESTABLISHMENT BRANCH NAGALAND CIVIL SECRETARIAT KOHIMA 797004 3:THE DIRECTOR GENERAL OF POLICE POLICE HEADQUARTER NAGALAND KOHIMA 797001 4:THE COMMANDANT 2ND NAP BATTALION ALICHEN PIN-79860 Advocate for the Petitioner : I. APOK PONGENER, RENBONI Page No.# 2/21 Advocate for the Respondent : IMTI IMSONG, ADDL. A.G. BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH Date on which judgment was reserved : NA Date of pronouncement of judgment : 20.11.2025 Whether the pronouncement is of the Operative part of the judgment? : NA Whether the full judgment has been pronounced? : NA JUDGMENT AND ORDER (ORAL) Heard Mr. I. Apok Pongener, the learned counsel appearing on behalf of the petitioner and Mr. I. Imsong, the learned Additional Advocate General, Nagaland appearing on behalf of the State Respondents. 2. The petitioner herein is aggrieved by the action on the part of the Respondent Authorities in not granting him the invalid pension as well as the disability pension to which the petitioner claims to be entitled to. 3. For appreciating the dispute, it is relevant to take note of the brief facts which led to the filing of the instant writ petition. 4. The materials on record show that the petitioner herein was Page No.# 3/21 admittedly appointed on 21.06.1984 as a Constable in the establishment of the Commandant 2nd NAP, Alichen. The petitioner claims that during the period while he was serving, he was inflicted with the disease of Epilepsy which became more severe and frequent on account of the work load and he was therefore treated in the Unit Hospital at Alichen. Subsequent thereto, on 19.04.1991, after medical assessment being carried out, the petitioner was declared to be unfit by the Unit Doctor and accordingly was discharged from his service on medical ground. 5. Subsequent thereto, there was a evaluation being carried out by the Medical Board on 22.06.1993 wherein it was certified that the petitioner was suffering from Epilepsy and was considered to be a disqualification for further employment in the Office of the Commandant 2nd NAP. The petitioner upon his discharge submitted a representation which was followed by another representation dated 18.02.2009 claiming his pensionary dues. The said however was not responded by the Respondent Authorities. The petitioner again submitted a legal notice in the year 2023 and a reply thereupon was sent to the petitioner that the petitioner was not entitled to invalid pension on the ground that he had not completed 10 years of service. Reference in that regard was made to the Office Memorandum dated 22.12.2015. Page No.# 4/21 The petitioner thereupon again submitted a representation which did not receive a favourable response, for which, the petitioner has approached this Court by filing the present writ petition. 6. The respondents had filed an affidavit-in-opposition. In the said affidavit-in-opposition, it was categorically stated that the petitioner was not entitled to the invalid pension on the ground that the petitioner had not completed 10 years of service. It is relevant to take note of Paragraph No. 8 of the said affidavit-in- opposition wherein it was mentioned that the invalid pension are granted to employees who are released from service due to physical or mental condition rendering them unable to work. It was also mentioned that the permanent incapability to work due to illness or injury unrelated to work which requires a recommendation of the Medical Board as in the present case. It was also mentioned that the Disability Pension is granted to employees who have been injured or have their health aggravated by their nature of work in their service resulting in a permanent disability which is not the case of the petitioner in the present case. 7. The petitioner filed an affidavit-in-reply wherein contested the averments made in the affidavit-in-opposition to the effect that the petitioner was not entitled to invalid pension on the ground Page No.# 5/21 that the petitioner had only completed 7 years of service and not 10 years of service. It is the case of the petitioner that the Office Memorandum of the year 2015 could not have been applied retrospectively in the case of the petitioner inasmuch as the petitioner was discharged from service in the year 1991. Further to that, it was also stated that the petitioner was inflicted with the disease of Epilepsy which became aggravated during the period when the petitioner was working. 8. Mr. I. Apok Pongener, the learned counsel appearing on behalf of the petitioner made two fold submissions. The learned counsel submitted that invalid pension is regulated by the CCS Pension Rules which do not mandate a period for getting the benefit of the invalid pension. The learned counsel submitted that in the year 2015, an Office Memorandum was issued however, the said Office Memorandum cannot be said to be applicable to the present facts taking into account the petitioner was discharged in the year 1991. 9. The second submission so made by the learned counsel appearing on behalf of the petitioner relying upon the judgment of the Supreme Court in the case of Dharamvir Singh Vs. Union of India & Others reported in (2013) 7 SCC 316 is that the petitioner having entered in the employment would be deemed Page No.# 6/21 that the petitioner was in fine health. Any aggravation or infliction of a disease during the service and on the basis thereof the petitioner being discharged would result in the entitlement of the petitioner to the disability pension and therefore the learned counsel submitted that applying the law as laid down by the Supreme Court in the case of Dharamvir Singh (supra), it is for the respondents herein to show that there were contemporaneous records maintained at the time when the petitioner had entered into the service that the petitioner was already inflicted with the disease, for which, the petitioner was discharged. 10. This Court had also heard Mr. I. Imsong, the learned Additional Advocate General, Nagaland who submitted that the petitioner having not completed 10 years of service, the petitioner is not entitled to the invalid pension and further submitted that there is also nothing on record to show that the petitioner had developed any disease during his service and this aspect of the matter cannot now be agitated taking into account that already 34 years have elapsed from the date of discharge of the petitioner. 11. This Court further finds it relevant to take note of that on 29.08.2025, this Court had heard the learned counsels appearing Page No.# 7/21 on behalf of the parties and taking into account the submissions, made 2 (two) queries upon Mr. I. Imsong, the learned Additional Advocate General, Nagaland. The 2 (two) queries were noted in paragraph No. 12 of the order dated 29.08.2025 which being relevant is reproduced herein below: “12. This Court upon hearing the learned counsel for the parties, has put two queries upon Mr. Imti Imsong, the learned Additional Advocate General, Nagaland. i) The facts narrated hereinabove would show that the petitioner was discharged from service on 19.04.1991. Whether there was any provision prior to the Office Memorandum of 2015 which restricted granting of invalid pension to those persons who have not completed certain years of service. This query is being made taking into account that the CCS Pension Rules duly applies to the State of Nagaland and Rule 38 is the relevant provision which mandates the entitlement for invalid pension. (ii) This Court had duly perused the judgment of the Supreme Court in the case of Dharamvir Singh (Supra) wherein the Supreme Court categorically observed that the onus is upon the employer to show that the employee already had an pre-existing disease prior to entering into service and it was further observed that if there is no contemporaneous records maintained at the time when the employee had entered into service, then it shall be presumed that the employee was inflicted with the disease or the disease have aggravated on account of the work he was asked to endure with. Under such circumstances, this Court enquired with Mr. Imti Imsong, the learned Additional Advocate General, Nagaland as to whether the same principles can be applied in the facts of the instant case taking into account that the Supreme Court in the case of Dharamvir Singh (Supra) was interpreting the provisions which Page No.# 8/21 would be applied to armed forces.” 12. Pursuant thereto, on 04.09.2025, Mr. I. Imsong, the learned Additional Advocate General, Nagaland, submitted that the CCS (Pension) Rules, 1972 is applicable to all employees of the State of Nagaland. He further submitted that as per his instruction(s), there is no other Office Memorandum whereby the period for entitlement of invalid pension has been restricted prior to the Office Memorandum of 2015. In respect to the second query made in the order dated 29.08.2025, the learned Additional Advocate General submitted that taking into account that it was only after a very long period, the petitioner had approached this Court, it is difficult to find out the records, as to whether, the petitioner had any pre-existing disease prior to entering into service. Taking into account the said submissions, this Court was of the opinion that the said queries so made vide the order dated 29.08.2025 be answered by way of an affidavit as the same would aid in the adjudication of the present dispute. 13. Pursuant thereto, an additional affidavit was filed by the Secretary, Department of Home, Government of Nagaland on 23.09.2025. Paragraph Nos. 3 and 4 of the said additional affidavit being relevant are reproduced herein under: “3. That accordingly, the answering deponent is obliged to place the letter Page No.# 9/21 No.FIN/ROP/3/83 dated 18th June, 1987 before the Hon'ble Court in regard to the applicability of the Central Civil Services (Pension) Rules, 1972 in the State of Nagaland. 4. That as regards to the queries as to the pre-existing disease prior to entering into service of the employee (petitioner), there is nothing on records to show that the petitioner had developed any disease during his service and as such, the answering deponent offers no comment.” 14. To the said additional affidavit, the respondents have also enclosed a letter dated 18.06.1987, as Annexure-A. From a perusal of the said communication, it is apparent that it was decided by the Government of Nagaland that the CCS (Pension) Rules, 1972, with all up to date amendments, shall be deemed to have been adopted by the Government of Nagaland and the orders already issued by the Government of Nagaland in pension matters contrary to the provisions of the CCS (Pension) Rules, 1972 may be treated as a modification of the provisions of the aforesaid Rules insofar as its applicability in the State of Nagaland. It was also mentioned in the said communication that any future amendments to the CCS (Pension) Rules, 1972, if made by the Government of India, shall also be treated as automatically adopted by the Government of Nagaland. Further to that, it was also mentioned that any future amendments having an overriding effect on the State Government orders or on the subject, the orders of the State Government would stand. Page No.# 10/21 15. In the backdrop of the above, the question, therefore, which arises herein is, as to whether, the petitioner herein is entitled to any relief as has been sought for in the instant writ petition. 16. A perusal of the reliefs so sought for in the instant writ petition reveals that the petitioner initially applied for invalid pension, but the same was rejected on the ground of an Office Memorandum No. PAR/INV PEN-8/2015 dated 22.12.2015, wherein it was provided that in order to be eligible for invalid pension a permanent/temporary Government servant must have rendered not less than 10 (ten) years of service. 17. Be that as it may, it appears from the additional affidavit so filed that prior to the Office Memorandum dated 22.12.2015, there was no other order passed by the Government of Nagaland which was prevalent at the time when the petitioner was discharge from his service mandating the requirement of the period of 10 (ten) years. It is very pertinent to mention that for the purpose of invalid pension as mandated in Rule 38 of the CCS (Pension) Rules, 1972, it is a requirement that the Government servant has to apply for invalid pension, which is not the case in the instant proceedings, taking into account that the petitioner herein was discharged from service on the ground Page No.# 11/21 that the petitioner was not fit. Therefore, the question does not arise as regards any invalid pension to be paid to the petitioner 18. The second question is, as to whether, the petitioner is entitled to disability pension in view of the fact that the petitioner after serving the department for almost 6 to 7 years, started suffering from intermittent attacks of Epilepsy. After treatment in Unit Hospital at Alichen, the Unit Doctor declared the petitioner to be unfit for active service, which was further confirmed by the Medical Board at the District Hospital, Mokokchung. Resultantly, the Commandant 2nd NAP Battalion, Alichen, vide an order dated 08.05.1991, discharged the petitioner from active service on medical ground. 19. In the backdrop of the above, let this Court now look into, as to whether, the petitioner is entitled to disability pension. 20. Rule 3-A of the Central Civil Services (Extraordinary Pension) Rules, 1939 (hereinafter referred to as, “the Rules of 1939”) stipulates Disablement/Death. In terms with Sub-Rule (1) (a) of Rule 3-A of the Rules of 1939, disablement shall be accepted as due to Government service provided it is certified that it is due to a wound, injury or disease which is attributable to Government Service or existed before or arose during Government Service and has been and remains aggravated Page No.# 12/21 thereby. Sub-Rule (2) of Rule 3-A of the Rules of 1939 further stipulates that there shall be a casual connection between disablement and Government service. 21. Rule 9 of the Rules of 1939 further stipulates disablement due to Government service. The said Rule being relevant is reproduced herein under: “9. Disablement due to Government service.-[(1) When disablement of a Government service is conceded as due to Government service in terms of Rule 3-A, he shall be awarded disability pension in terms of sub-rule (2) or lump sum compensation in terms of sub-rule (3) of this rule in accordance with the percentage of disability (suffered by him) as certified by the Medical Authority concerned. (2) If the Government servant is boarded out of Government service on account of his disablement, the quantum of disability pension for cent per cent disability shall be as specified in Schedule II hereto annexed and the quantum of disability pension for lower percentage of disability shall be, "proportionately lower” in accordance with the provision provided in Rule 8. (3) If the Government servant is retained in service in spite of such disablement, he shall be paid a compensation in lump sum (in lieu of the disability pension) on the basis of disability pension admissible to him in accordance with the provisions of sub-rule (2) of this rule, by arriving at the capitalized value of such disability pension with reference to the Commutation Table, in force from time to time: Provided that, the broadbanding as provided in the sub-rule (3) of Rule 8 shall not be applicable in such cases.] Page No.# 13/21 [9-A. The pensioners who are drawing disability pension under the provisions of Rule 9 for 100% disability and are completely dependent on others for day to day activities, shall also be granted in addition to disability pension, the Constant Attendant Allowance in accordance with the instructions issued from time to time.]” 22. From a perusal of the said Rule, it is apparent that when the disablement of a Government servant is conceded as due to Government service in terms of Rule 3-A, the Government servant shall be awarded disability pension in terms of Sub-Rule (2) or lump sum compensation in terms of Sub-Rule (3) of Rule 9 of the Rules of 1939 in accordance with the percentage of disability (suffered by him) as certified by the Medical Board concerned. Sub-Rule (2) of Rule 9 of the Rules of 1939 is in respect to those Government servants who have been boarded out of Government service on account of his disablement, whereas Sub-Rule (3) of Rule 9 of the Rules of 1939 is when a Government servant is retained in service in spite of such disablement. The quantum of the disability pension in the case of a Government servant boarded out of Government service is to be worked out taking into account the percentage of disability as specified in Schedule II and to be applied in accordance with the provisions contained in Rule 8. 23. Now coming back to the facts involved, it is seen that the Page No.# 14/21 Medical Board has certified that the petitioner was suffering from Epilepsy and it was considered to be a disqualification for employment in the Office of the Commandant 2nd NAP. The Medical Board Certificate is dated 22.06.1993. Further to that, it is also seen that in the discharge order, the petitioner was released w.e.f. 19.04.1991 on medical grounds. 24. This Court at this stage finds it relevant to take note of the judgment of the Supreme Court in the case of Dharamvir Singh (supra) and, more particularly, to Paragraph Nos. 29 to 31. The said paragraphs are quoted herein below: “29. A conjoint reading of various provisions, reproduced above, makes it clear that: 29.1. Disability pension to be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable to or aggravated by military service to be determined under the Entitlement Rules for Casualty Pensionary Awards, 1982 of Appendix II (Regulation 173). 29.2. A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be presumed due to service [Rule 5 read with Rule 14(b)]. 29.3. The onus of proof is not on the claimant (employee), the corollary is that Page No.# 15/21 onus of proof that the condition for non-entitlement is with the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally (Rule 9). 29.4. If a disease is accepted to have been as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service [Rule 14(c)]. 29.5. If no note of any disability or disease was made at the time of individual’s acceptance for military service, a disease which has led to an individual’s discharge or death will be deemed to have arisen in service [Rule 14(b)]. 29.6. If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and that disease will not be deemed to have arisen during service, the Medical Board is required to state the reasons [Rule 14(b)]; and 29.7. It is mandatory for the Medical Board to follow the guidelines laid down in Chapter II of the Guide to Medical Officers (Military Pensions), 2002 — “Entitlement: General Principles”, including Paras 7, 8 and 9 as referred to above (para 27). 30. We, accordingly, answer both the questions in affirmative in favour of the appellant and against the respondents. 31. In the present case it is undisputed that no note of any disease has been recorded at the time of the appellant’s acceptance for military service. The respondents have failed to bring on record any document to suggest that the appellant was under treatment for such a disease or by hereditary he is suffering from such disease. In the absence of any note in the service record at the time of acceptance of joining of the appellant it was incumbent on the part of the Medical Board to call for records and look into the same before coming to Page No.# 16/21 an opinion that the disease could not have been detected on medical examination prior to the acceptance for military service, but nothing is on the record to suggest that any such record was called for by the Medical Board or looked into it and no reasons have been recorded in writing to come to the conclusion that the disability is not due to military service. In fact, non- application of mind of Medical Board is apparent from clause (d) of Para 2 of the opinion of the Medical Board, which is as follows: “(d) In the case of a disability under (c) the Board should state what exactly in their opinion is the cause thereof. Disability is not related to military service” 25. In the instant case, this Court vide an order dated 29.08.2025 gave an opportunity to the respondents, as to whether, there were contemporaneous records maintained at the time when the petitioner entered into service. Nothing has been placed on record and even in the additional affidavit which was filed on 23.09.2025, nothing has been placed that there were contemporaneous records at the time of entering into service that the petitioner was suffering from a pre-existing disease. Additionally, it was the very case of the petitioner that on account of stress and strain of his services, the petitioner's disease of Epilepsy aggravated. 26. Considering the above, it is therefore the opinion of this Court that the petitioner is entitled to disability pension. Page No.# 17/21 27. The next question which arises is, as to whether, the petitioner is entitled to any arrears of the disability pension since the petitioner was discharged in the year 1991 and thereupon the petitioner approached this Court in the year 2024. 28. This Court finds it relevant to take note of the judgment of the Supreme Court in the case of Union of India & Others Vs. Tarsem Singh reported in (2008) 8 SCC 648 which gives an answer to the said question. In the said case before the Supreme Court, the respondent therein while working in Indian Army was invalidated out of army service in medical category on 13.11.1983. He approached the High Court in the year 1999 seeking a direction to the appellants therein to pay him disability pension. In the year 2000, the learned Single Judge allowed the said writ petition and directed the appellants to grant the respondent therein the disability pension at the rate permissible, but insofar as the arrears the relief was restricted to 38 months prior to the filing of the writ petition. The respondent therein filed an Appeal before the learned Division Bench and the learned Division Bench not only held that the respondent was entitled to disability pension from the date it fell due, but also granted interest on the arrears at the rate of 6% per annum. This led to the filing of an Appeal before the Supreme Court. The Supreme Court dealt with the issue, as to whether, it was a Page No.# 18/21 continuing wrong, for which, the cause of action would be alive and in spite of there being a delay of 16 (sixteen) years in approaching the Court what is the permissible arrears that can be permitted. Paragraph Nos. 4 to 6 being relevant are reproduced herein under: “4. The principles underlying continuing wrongs and recurring/successive wrongs have been applied to service law disputes. A “continuing wrong” refers to a single wrongful act which causes a continuing injury. “Recurring/successive wrongs” are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. This Court in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan explained the concept of continuing wrong (in the context of Section 23 of the Limitation Act, 1908 corresponding to Section 22 of the Limitation Act, 1963): (AIR p. 807, para 31) “31. … It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury.” 5. In M.R. Gupta v. Union of India the appellant approached the High Court in 1989 with a grievance in regard to his initial pay fixation with effect from 1-8- 1978. The claim was rejected as it was raised after 11 years. This Court applied the principles of continuing wrong and recurring wrongs and reversed the Page No.# 19/21 decision. This Court held: (SCC pp. 629-30, para 5) “5. … The appellant’s grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant’s claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant’s claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time-barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion, etc., would also be subject to the defence of laches, etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1-8-1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation, the application cannot be treated as time-barred….” 6. In Shiv Dass v. Union of India this Court held: (SCC p. 277, paras 8 & 10) “8. … The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It Page No.# 20/21 was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. 10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. … If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years.” 29. It is the opinion of this Court that herein also applying the law laid down by the Supreme Court, the writ petitioner herein cannot be granted arrears of disability pension for a period prior to 3 (three) years from the date of filing of the instant writ petition. 30. Accordingly, the instant writ petition stands disposed of with the following observations and directions: (i) The petitioner herein is entitled to disability pension and the respondents herein are directed to compute the entitlement of the disability pension to which the petitioner is entitled to as per the provisions of the Rules of 1939. (ii) The petitioner herein would not be entitled to arrears from the date the petitioner has been discharged from Page No.# 21/21 service i.e. 19.04.1991. However, the petitioner would be entitled to arrears w.e.f. 25.07.2021 i.e. 3 (three) years prior to the date of filing of the instant writ petition. (iii) The respondents herein are jointly and severely directed to take effective steps to release the dues of the petitioner within a period of 4 (four) months from the date a certified copy of the instant judgment is served upon the respondent No. 4. (iv) The petitioner shall also appear before the Medical Board of the respondents as and when called for. JUDGE Comparing Assistant