Page No.# 1/10 GAHC020004132021 2026:GAU-NL:436 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : WP(C)/192/2021 SHRI. TIAZUNGBA AO CONSTABLE(RETIRED), REGD NO.111298, 11 NAP(IR), S/O YARENTEMJEN AO OF MONGSENYIMTI VILLAGE , MOKOKCHUNG, NAGALAND VERSUS THE STATE OF NAGALAND AND 5 ORS THROUGH THE CHIEF SECRETARY TO THE GOVT.OF NAGALAND, KOHIMA 2:THE COMMISSIONER AND SECRETARY PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT NAGALAND 3:THE FINANCIAL COMMISSIONER NAGALAND KOHIMA 4:THE DIRECTOR GENERAL OF POLICE NAGALAND KOHIMA 5:THE ACCOUNTANT GENERAL(A AND E) NAGALAND KOHIMA Page No.# 2/10 6:THE COMMANDANT 11 NAP (IR) BATALLION CHUMUKEDIMA NAGALAN Advocate for the Petitioner : MOA JAMIR, KIROBA,K T SANGTAM,M SOLO Advocate for the Respondent : GOVT ADV NL, BEFORE HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 20-08-2026 Heard learned counsel, Mr. Moa Jamir, for the petitioner. Also heard learned Government Advocate, Mr. Veto V. Zhimomi, for the respondent Nos. 1 to 4 and 6 and learned Standing Counsel, Mr. Joshua Sheqi, for Accountant General, respondent No. 5. 2. It is submitted by the learned counsel for the petitioner that the petitioner was enlisted as Constable (GD) with Regt. No. 111298 ’ADM’ Coy, by Office order No. XI NAP(IR)/RO-2/2007-08/3081 dated 07.02.2008. After serving the Department for 7 years 7 months and 10 days, the petitioner submitted his resignation letter on account of disability, to which effect Certificate No. 514, dated 08.09.2015 was issued by the Medical Board consisting of Senior Specialist and 2 (two) Medical Officers. The petitioner submitted representation dated 22.04.2021 to the Director General of Police (respondent No. 4) praying for payment of invalid disability pension and other service benefits. It is submitted that till date the representation has not been disposed of. 3. As per Rule 38 of the Central Civil Service Pension Rules (CCS Rules, Page No.# 3/10 for short), 1972 the petitioner is entitled to ‘Invalid Pension’. The certificate issued by the F Coy Commander marked as Annexure 3 of the petition clearly reflects that the petitioner had informed the Coy Commander about his poor visibility. The petitioner has properly complied with the mandate of Rule 38 and he is entitled to Invalid Pension. It is contended that for nearly 5 years, the authorities did not consider the petitioner’s pension, which impelled the petitioner to file the representation to the Director General of Police, Nagaland. This representation is marked as Annexure 7 of the writ petition. 4. Per contra, the learned Government Advocate for the respondent Nos. 1 to 4 and 6 laid stress in his argument that the petitioner is not entitled to invalid pension as per Rule 38. The learned Government Advocate has drawn the attention of this Court to the office memorandum (OM for short) No. PAR/INV PEN-8/2015 dated, Kohima, the 22nd of December 2015, marked as Annexure B of the affidavit-in-opposition dated 19.08.2026. Emphasis has been laid on the OM stating that any employee is entitled to invalid pension after 10 years of service and as the petitioner has served the Government for more than 7 1/2 years, he is not entitled to invalid pension. It is submitted that Note 1 of Rule 38 reflects that : “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 Page No.# 4/10 therein should be reported.” 5. So stating, it is submitted that the petitioner tried to produce a letter to show that the Head of his office or the Company Commander was aware of the intention of the petitioner to appear before the medical authority and the medical authority was properly informed about the intention of the petitioner to apply for resignation. It is also emphasised that there has to be a recommendation from the formally constituted medical board for the purpose. It is further submitted that the medical certificate is not a specific certificate for the purpose of invalid pension but the medical certificate marked as Annexure 2 of the petition is a general medical certificate which is inconsistent with the Rules as well as the OM dated 22.12.2015. 6. It is also contended that no clearance from the P&AR Department was obtained by the petitioner before he was released from service on invalid pension. It is further submitted that the proposed date of retirement was also not informed to the authority. It is contended that the Service Book of the petitioner and the Medical Board’s recommendation was also not furnished by the petitioner to the Authority. The learned Government Advocate for the State Respondents laid stress in his argument that the sanction order dated 03.12.2015 marked as Annexure 5 of the writ petition reveals that the petitioner was discharged from service on his request. This tantamounts to resignation as per Rule 26 of the CCS Rules. It is further submitted that the dues, leave encashment, gratuity and final GPF have already been paid to the petitioner. 7. Learned Standing Counsel for the Accountant General has fairly submitted that Rule 26 relates to resignation and this case falls under Rule Page No.# 5/10 38 of the CCS Rules of 1972. The learned Standing counsel has further submitted that the discharge certificate issued on 15.09.2015 was issued in an apathetic manner and the petitioner’s medical condition ought to have been included while issuing the discharge certificate. 8. I have considered the submissions at the Bar with circumspection. 9. The learned Government Advocate has relied on the decision of the Hon’ble Supreme Court in Surjeet Singh Sahni Vs State of Uttar Pradesh and Ors reported in (2022) 15 SCC 536, wherein it has been held that:- “8. As observed by this Court in a catena of decisions, mere representation does not extend the period of limitation and the aggrieved person has to approach the Court expeditiously and within a reasonable time. If it is found that the writ petitioner is guilty of delay and laches, the High Court should dismiss it at the threshold and ought not to dispose of the writ petition by relegating the writ petitioner to file a representation and/or directing the authority to decide b the representation, once it is found that the original writ petitioner is guilty of delay and laches. Such order shall not give an opportunity to the petitioner to thereafter contend that rejection of the representation subsequently has given a fresh cause of action.” 10. It is submitted that the petitioner approached this Court after a period of more than 6 years and the petitioner is guilty of delay and laches. 11. The learned counsel for the petitioner has drawn the attention of this Court to the decision of this Court in Lakheswar Das Vs. Union of India and Anr reported in 2014 (2) GLT 868, wherein it has been held that: “6. On going through Rule 38 of the Rules, I find force in the contention of the learned counsel for the petitioner. Rule 38 of the Rules simply says that Page No.# 6/10 invalid pension may be granted if a Government servant retires from service on account of any bodily or mental infirmity which permanently incapacitates him for the service. It is a cardinal principle of interpretation of statute that when the words of a statute are clear, plain and unambiguous, i.e. they susceptible to only one meaning, the courts are bound to given effect to that meaning irrespective of consequences. The rule is also stated in another form: "When a language is plain and unambiguous and admits of only one meaning, no question of construction of a statute arises, for the Act speaks for itself"? G.P. Singh's Principles of Interpretation of Statutes, 9th Edn., pp. 45-46. Therefore, to accept the contention of the learned CGC, to my mind, will amount to rendering the provision of Rule 38 of the Rules odious. Thus, the extent and reach of Rule 38 cannot be controlled by Rule 49(2) by reading words into it which are not there in the statute. Under the circumstances, the claim for invalid pension by the petitioner is admissible in law. 7. However, the next question to be considered is what sort of relief can be granted to the petitioner considering the fact that he approached this Court after 28 years from the date of his retirement. The entitlement to invalid pension is one thing, but the entitlement to pension arrears is another thing. I have carefully considered the explanation of delay offered by the petitioner, but the explanation is far from satisfactory. Even if the invalid pension is found to be admissible to the petitioner at this belated stage as denial thereof amounts to a continuing wrong, unrestricted relief in respect of pension/salary arrears can no longer be granted in view of the law laid down by the Apex Court in Union of India Vs. Tarsem Singh, 2008 (8) SCC 648. The Apex Court in explanation of difference of "continuing wrong" and "successive wrong" held as follows: "7. To summarise, normally, a belated service related claim, will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to continuing wrong. Where a service related claim is based Page No.# 7/10 on a continuing wrong, relief can be granted if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, of such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim, involves issue relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/ limitation will be applied. In so far as consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing the writ petition." 8. As there is inordinate delay in approaching this Court, the admissibility of the invalid pension on the ground that the denial thereof amounts to a continuing wrong, does not necessarily lead to admissibility of the pension arrears. Consequently, in the light of law laid down by the Apex Court in Tarsem Singh case (supra), the pension arrears of the petitioner shall be restricted only to 3 years prior to the filing of this writ petition.”. 12. Relying on the decision of this Court in Lakheswar Das (supra), it is submitted that Das approached the Court after 28 years and this Court after relying on the decision of the Supreme Court in the Union of India Vs. Tarsem Singh, reported in 2008 (8) SCC 648, explained the difference of ‘continuing wrong’ and ‘successive wrong’. It is further contended that the issue of pension is a continuous wrong. 13. The learned counsel for the petitioner has also relied on the decision Page No.# 8/10 of the Supreme Court in the Union of India and Another Vs. Ashok Kumar Aggarwal reported in (2013) 16 SCC 147 wherein it has been held that:- “58. A Constitution Bench of this Court while dealing with a similar issue in respect of executive instructions in Sant Ram Sharma v. State of Rajasthan & Ors., AIR 1967 SC 1910, held: “7. It is true that the Government cannot amend or supersede statutory Rules by administrative instruction, but if the Rules are silent on any particular point, the Government can fill-up the gap and supplement the rule and issue instructions not inconsistent with the Rules already framed.” 59. The law laid down above has consistently been followed and it is a settled proposition of law that an authority cannot issue orders/office memorandum/ executive instructions in contravention of the statutory Rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide:Union of India & Ors. v. Majji Jangammayya & Ors., AIR 1977 SC 757; P.D. Aggarwal & Ors. v. State of U.P. & Ors., AIR 1987 SC 1676; Paluru Ramkrishnaiah & Ors. v. Union of India & Anr., AIR 1990 SC 166; C. Rangaswamaiah & Ors. v. Karnataka Lokayukta & Ors., AIR 1998 SC 2496; and JAC of Airlines Pilots Association of India & Ors. v. The Director General of Civil Aviation ). 60. Similarly, a Constitution Bench of this Court, in Naga People’s Movement of Human Rights v. Union of India., held that the executive instructions have binding force provided the same have been issued to fill up the gap between the statutory provisions and are not inconsistent with the said provisions.” 14. Reverting back to this case, it is held that the ratio of the decision in Tarsem Singh (supra) is applicable to this case. 15. I have also considered the submission that the petitioner’s representation was not considered by the Department for 6 (six) years which also led to the delay as alleged by the respondents. 16. In the light of the decision of the Hon’ble Supreme Court in Ashok Kumar Aggarwal (supra) it is also held that the executive instructions vide OM dated 22.09.2015, is inconsistent with the statutory rules as per Page No.# 9/10 Rule 38, which is silent relating to the length of service qualifying invalid pension. I have also relied on the decision of Lakheswar Das (supra) wherein it is held that the extent and reach of Rule 38 cannot be controlled by Rule 49 (2) by reading words into it which are not there in the statute. 17. In this case, the medical board had issued a certificate which affirms that the petitioner was suffering from 40% of visual disability. This entitles the petitioner to invalid pension as per Rule 38. Relating to laches, it has been held in Tarsem Singh (supra) that where a service related claim is based on a continuing wrong, relief can be granted if there is a long delay in seeking remedy. Reopening of issue which would not affect the settled rights of third parties may be considered on the ground of delay. Issue relating to payment or refixation of pay or pension does not affect the rights of third parties. It was also argued by the learned counsel for the petitioner that the OM dated 22.12.2015, was in contravention to the statutory rules and their instructions tried to supplant the statutory rules. 18. I have considered the submissions of the learned counsel for the petitioner that Rule 26 is for general resignation from service and cannot be read conjointly with Rule 38 of CCS Rules, but has to be read in isolation. It is also pertinent to mention at this juncture that the petitioner was discharged from service on 15.09.2015 whereas the OM was notified on 22.12.2015. 19. In view of the foreging discussions and under the facts and circumstances of this case, the claim of ‘invalid pension’ by the petitioner is held to be admissible in law. 20. In terms of the above observation, the respondent No. 4 is directed Page No.# 10/10 to consider the representation of the petitioner within 4 (four) months from the date of this order. 21. In view of the above observation, this application stands disposed of. JUDGE Comparing Assistant