THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.617 OF 2009 DATED _____OCTOBER, 2010 BETWEEN Pramila … Petitioner And The South Central Railway Rep. by its General Manager, Rail Nilayam, Secunderabad, And others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.617 OF 2009 O R D E R By proceedings dated 31.12.2004, 31.05.2007 and 06.06.2007, the Railway Protection Force, South Central Railway, time and again rejected the petitioner’s claim for family pension. Assailing the same, the petitioner is before this Court. She seeks a consequential direction to the respondents to grant family pension to her along with arrears from 20.07.1986. The petitioner’s husband entered the service of the Railway Protection Force (RPF), South Central Railway (SCR) as a Head Constable in the year 1965. He was promoted as a Sub-Inspector in February, 1983. He was removed from service under proceedings dated 19.09.1983 passed by the Divisional Security Commissioner, RPF, SCR, Guntakal, Anantapur District, on the ground of unauthorized absence from 09.01.1982 to 19.09.1983. He died on 20.07.1986. The petitioner, being his widow, claimed that she was disowned by her two sons and a daughter and that she had been representing to the authorities for grant of pension. Under the three impugned proceedings, her request was turned down. Sri P.S.Rajasekhar, learned counsel appearing for the petitioner, argued that the rejection of the petitioner’s request was in violation of Rule-65 of the Railway Service (Pension) Rules, 1983 (for brevity, ‘the Rules of 1983’). He pointed out that by Circular No.145/1995 dated 01.12.1995, the South Central Railway had itself clarified as to how Rule-65 of the Rules of 1983 was to be interpreted and implemented and contended that the authorities erred in rejecting the petitioner’s case on the ground that her claim was prior to the issuance of the said Circular. He contended that it was for the authorities to consider at the relevant time as to whether the petitioner’s husband was entitled to compassionate allowance under Rule 65 of the Rules of 1983 and that their approach in denying the petitioner’s claim on the ground that her husband did not apply for such allowance during his lifetime was erroneous and unlawful. Learned counsel also banked on the disparity in the treatment extended by the authorities to another similarly situated employee, B.D.Mulla, who was granted compassionate allowance long after his removal from service. He therefore submitted that his client was entitled to family pension along with arrears. In the counter filed on behalf of the respondents, the Divisional Security Commissioner, Railway Protection Force, South Central Railway, Guntakal Division, being the third respondent, while admitting the factual position denied the petitioner’s claim for family pension. He stated that as the petitioner’s husband had been removed from service in the year 1983 and as the Circular instructions dated 01.12.1995 came to be issued long thereafter, she could not claim any benefit thereunder. He pointed out that the petitioner’s husband had not filed any representation seeking grant of compassionate allowance after his removal from service and therefore, the petitioner was not eligible for family pension. He specifically contended that as there was no provision similar to the Circular instructions of 1995 for granting compassionate allowance in the year 1983, the petitioner’s claim could not be accommodated. Sri J.Ashok Kumar, learned counsel representing the respondents, reiterated the contents of their counter and contended that the procedure which came to be introduced under Circular dated 01.12.1995 did not have retrospective effect and therefore the petitioner could not lay a claim for family pension at this belated stage. He accordingly prayed for dismissal of the writ petition. The case of the petitioner was rejected on as many as three occasions. The orders make for an interesting reading. The first order dated 31.12.2004 stated as under: “ Guntakal, Dated 31.12.2004 To Smt.Pramila, W/o.Late Namdeo Pawar, Ex-Rakshak/RPF (Fire), Sub: Your requisition for sanction of Family pension. *** It is to inform you that your husband Sri Namdeo Pawar, Ex-Rakshak/RPF (Fire) has been removed from service for his lapse of unauthorized absence from duties from 08.04.1982 to 19.09.1983 vide SOR/Guntakal D.O.No.119/83 dated 19.09.1983. Hence, you are not eligible for any pensionary benefits as per Rules in Force. Please note. Sd/- I/C Divisional Security Commissioner/RPF, Guntakal.” Thereafter, the second rejection embodied in letter dated 31.05.2007 came to be issued and read as under: “SOUTH CENTRAL RAILWAY Office of the Divisional Security Commissioner/RPF Guntakal, Dated 31.05.2007 No.G/XP.227/Misc/2007 Smt.Pramila, W/o Late Namdeo Pawar, Ex.Head Rakshak/RPF (Fire)/GTL At Shivaji Nagar, Station Road, Akkalkot, Solapur Dist. Sub:- Your representation requesting for grant of compassionate allowance u/r 65 of Railway Service (Pension) Rule, 1993. *** You have already been intimated under this office Lr.No.G/XP.500/Sett/Misc, dated 30.12.2004 that you are not eligible for any pensionary benefits as per Rules in force since your husband was removed from service vide SCR/Guntakal DO.No.119/83 dated 19.09.1983 for unauthorized absence from duties from 08.04.1982 to 19.09.1983. As per Railway Service (Pension) Rules, 1993 u/r 65 the competent authority who can remove/dismiss the employee can sanction the compassionate allowance in deserving the case. Since, your husband has not submitted any application earlier for grant of compassionate allowance and granting of allowance to you at the stage does not arise. Please note and acknowledge the receipt. Sd/- Divisional Security Commissioner/RPF Guntakal” The final rejection was reflected in the proceedings of the Chief Security Commissioner, South Central Railway, passed on 06.06.2007, which reads as follows: “SOUTH CENTRAL RAILWAY Headquarters Office, Security Branch, Secunderabad. Dt.06.06.2007 No.X/P.227/Misc/Vol.V Smt.Pramila, W/o.Late Namdeo Pawar, Ex.HC/Fire/GTL C/o.Sri Anil Namdeo Pawar, Shivaji Nagar, Station Road, Akkalkot, Solapur (Dist) Maharastra State. Sub: Your request for grant of compassionate allowance – Para 309 of manual of pension rules replaced by rule 65 of Railway Service (Pension) Rules, 1993. -:o0o:- With reference to your representation dated 03.10.2005 addressed to DG/RPF followed by the reminders dated 06.12.2005, 24.12.2005 and 06.01.2006 addressed to CSC/SC on the subject matter. Your representation has been examined and it is seen that your husband Sri N.T.Pawar, while working as Head Constable/Fitter/Fire at GTL division was dealt under major penalty charge sheet u/r 44 of RPF Rules, 1959 on 03.11.1982 by the then ASOR/GTL on the charge of remaining absent unauthorisedly from 08.04.1982. As the charges leveled against him were held proved in the departmental enquiry, he was removed from service on 19.09.1983 by the then SOR/GTL. But he did not prefer any appeal or submit any representation for grant of compassionate allowance. Since the above named was removed from service, he is not eligible any other pensionary benefits. You were already informed the same by DSC/GTL under his Lr.No.G/XP.500/Sett/Misc dtd. 31.12.2004, …. and 31.05.2007. Further your request to modify the removal order to compulsory retirement by treating your representation as appeal can not be considered as per the rules. The appeal should be preferred by the employee himself under his own signature within the stipulated period of 30 days. Further you are not eligible for family pension since your husband was not receiving any pension/compassionate allowance at the time of his death. It is also informed that as per the Board’s Lr.No.F(EOIII/2003/PNI/5 dtd.09.05.2005, the past cases can not be reopened for review on the basis of representations received from the members of their families at a later date. Sd/- (AJOY SADANY) DY.CSC For CHIEF SECURITY COMMISSIONER/SC.” The sum and substance of the aforestated rejection orders is that the petitioner’s husband failed to apply for grant of compassionate allowance and therefore the petitioner is not eligible to receive family pension. It would be relevant at this stage to refer to the legal position. Rule 65 of the Rules of 1983 reads as under: “65 Compassionate Allowance – (1) A Railway servant who is dismissed or removed from service shall forfeit his pension and gratuity; Provided that the authority competent to dismiss or remove him from service may, if the case is deserving of special consideration, sanction a compassionate allowance not exceeding two thirds of pension or gratuity or both which would have been admissible to him if he had retired on compensation pension. (2) A compassionate allowance sanctioned under the provision to Sub Rule (1) shall not be less than three hundred seventy five rupees per mensum.” As much stress is laid upon the instructions contained in Circular No.145/1995 dated 01.12.1995, it would be proper to extract the relevant portions thereof. “2. Pension Rules also provide that when a dismissed/removed railway servant who has been receiving “Compassionate grant/allowance” dies, his widow or children within the specified age limits, are entitled for sanction of “Family Pension”. 3. However, it has been brought to the notice of Headquarters that a good number of removed/dismissed employees who deserve sanction of compassionate allowance could not avail themselves of this benefit due to ignorance of existence of those provisions. It has also been reported that especially families have been put to much hardship, when such railway servants expire leaving the families in dire distress. 4. The issue has been examined carefully. It is considered, with account on the welfare of the ex- railway servants deserving special consideration and their family members, that a system should be evolved which shall take care of the operation of Rule 65 of the current Pension Rules automatically. 5. It is, therefore, decided from the date of issue of this circular the following procedure shall be adopted in the case of removal/dismissal of railway servants from service. 5.1 Disciplinary Authority (including Appellate & Revising Authority) while communicating his orders of removal or dismissal to the railway servant, shall also send a letter as given in Annexure to the railway servant separately but along with the removal or dismissal orders. 5.2 APO/Bills (HQ) or Sr.DPO or the pay drawing authority, as the case may be, on receipt of the representation along with Form No.8 from the removed/dismissed railway servant, shall have the quantum of compassionate allowance admissible worked out. A proposal shall thereafter be sent to the Authority which passed orders removing or dismissing the railway servant for consideration of representation and sanction of the compassionate allowance as he may deem fit adequate and admissible under Rule 65 of Pension Rules 1993. If the authority accords sanction, papers may be processed on similar lines of processing pension and sent to associate Accounts for authorization of payment of pension under advise to the railway servant concerned. 6. This issues with the approval of competent authority.” It is on the basis of the aforestated circular instructions that the respondents contend that the petitioner’s claim cannot be entertained. It is their case that this procedure was introduced only in the year 1995 and the claim of the petitioner arising long prior thereto, could not be dealt with thereunder. However, as rightly pointed out by Sri P.S.Rajasekhar, learned counsel, the Circular dated 01.12.1995 did not introduce or create any new rights over and above those sanctioned by Rule 65 of the Rules of 1983. It only clarified the position obtaining thereunder. Rule 65 demonstrates that in a case where an employee, who is dismissed or removed from service, is made to forfeit his pension and gratuity, the authority doing so has the discretion to sanction a compassionate allowance if such case is deserving of special consideration. This Rule therefore placed a duty upon such authority at the time of dismissing/removing the employee from service to ascertain whether the case was deserving of special consideration for sanction of compassionate allowance. It would therefore be incumbent upon such authority, while enforcing the forfeiture of the pension and gratuity upon the dismissal/removal of the employee, to enquire into this aspect. As the authorities were, as a matter of course, failing to perform and implement this duty, it became necessary to clarify as to what was required of them by the Circular dated 01.12.1995. This Circular therefore only spelt out what was already in-built in Rule 65. This is manifest from Clauses (3), (4) and (5) of the Circular extracted supra. The contention of the respondents that the Circular created a new procedure which was only prospective and the petitioner could not claim benefit thereunder, is therefore misconceived. Having failed to discharge the statutory duty cast upon them by the proviso to Rule 65 at the time the petitioner’s husband was removed from service, the authorities cannot take advantage of their own mistake and now state that the clarification to correct this mistake issued in the year 1995 was only prospective and thereby seek to deny the petitioner’s rightful claim. It is not in dispute that had the petitioner’s husband been granted compassionate allowance, his widow, the petitioner herein, would be entitled to family pension. Further, it is relevant to note that by proceedings dated 25.04.2001, the Divisional Security Commissioner, RPF, SCR, Hubli, while dealing with the case of one B.D.Mulla, Ex-Rakshak, who was removed from service on 01.10.1977 for unauthorized absence, sanctioned him compassionate allowance on humanitarian grounds. Pertinent to note, in this case also, the claim for the allowance arose in 1977, long prior to the issuance of the Circular instructions dated 01.12.1995, but in spite of the same, the authorities thought it fit to exercise the discretion vested in them by the proviso to Rule 65 of the Rules of 1983 and sanctioned compassionate allowance to him on humanitarian grounds. The case on hand is no different. The other reason cited by the respondent authorities for denying the petitioner’s claim for family pension, being the failure of the petitioner’s husband in seeking grant of compassionate allowance during his lifetime, is also without legal basis as is clear from the language of the proviso to Rule 65. This is further clarified by the Circular dated 01.12.1995 which requires the disciplinary authority itself to send a separate letter with regard to compassionate allowance to the employee along with the removal/dismissal order. That being so, the failure on the part of the petitioner’s husband to seek compassionate allowance during his lifetime cannot be held against his widow. The material on record therefore reflects that the authorities themselves were at fault for not implementing the proviso to Rule 65 of the Rules of 1983 in true and proper letter and spirit and they cannot seek to take advantage of their own lapses by stating that the same were sought to be corrected prospectively from the year 1995, thereby validating the past errors. Further, the disparate treatment of the petitioner’s case when compared to that of B.D.Mulla who was similarly situated, leaves no room for doubt that the rejection of the petitioner’s claim is vitiated by discrimination, illegality and arbitrariness. However, no material is placed on record to demonstrate as to when the petitioner first sought release of family pension. The first rejection was embodied in the order passed in the year 2004. This Court is therefore of the opinion that she would not be entitled to arrears from the date of the death of her husband. Her apparent lack of diligence in this regard would disentitle her to claim arrears. The writ petition is accordingly allowed in part setting aside the rejection of the petitioner’s claim under the three impugned proceedings. The respondents shall consider the case of the petitioner under the proviso to Rule 65 of the Rules of 1983 on par with the case of B.D.Mulla, Ex-Rakshak. Basing on the same, the petitioner shall be sanctioned family pension as deemed appropriate as per Rules. She will be entitled to payment of family pension from the date of institution of this writ petition and her claim for past arrears stands dismissed. The respondent authorities shall complete this exercise including payment of arrears from the date of filing of this writ petition within three months from the date of receipt of a copy of this order. The respondents shall continue to pay monthly family pension to the petitioner thereafter as per her entitlement under the Rules. No order as to costs. -------------------------- SANJAY KUMAR,J ______OCTOBER, 2010 PGS (P.D) THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.617 OF 2009 DATED _____OCTOBER, 2010