IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Kumari Indira Vs. State of Rajasthan & Others (S. B. Civil Writ Petition No.4643/2004) S.B. Civil Writ Petition under Article 226 of the Constitution of India. Date of Judgment: January 21, 2009 PRESENT Hon'ble Mr. Justice R. S. Chauhan Mr. Anoop Dhand, for the petitioner. Mr. S.N. Kumawat, Addl. Advocate General, for the State. BY THE COURT: The petitioner has challenged the order dated 15-6-2004, passed by District Collector, Sikar, whereby the compensation awarded to petitioner for an alleged rape, was reduced from Rs.50,000/- to merely Rs.5,000/-. The petitioner has also prayed that the order dated 23-1-2004, whereby the compensation Rs.25,000/- was directed to be paid to the petitioner for the alleged rape, as well as the order dated 10-3-2004, whereby District Level Committee granted relief of Rs.25,000/- to victim of atrocities, should be upheld and the respondents be directed to make payment of Rs.25,000/-, by way of compensation, to the petitioner. 2. The brief facts of the case are that the petitioner, a resident of Chhara police station Khandela, belongs to Scheduled Tribe. Allegedly, she was raped by accused Shish Ram and Vinod. Therefore, an FIR No.78/2000, was lodged at Police Station Khandela for the offences under sections 376 IPC and Sec.3 SC/ST (PA) Act. Since the petitioner belongs to Scheduled Tribes her case for relief according to Rule 12(4) of the Scheduled Caste/ Scheduled Tribes (Prevention of Atrocities) Rules,1995 (`the Rules' for short) was put before the District Level Committee in the meeting on 6-1- 2004. A decision was taken to grant Rs.25,000/- as financial help to the petitioner and the order dated 23-1-2004 was passed. In another meeting held on 10-3-2004 by the District Level committee the decision of granting relief of Rs.25,000/- was sanctioned. Thereafter the order dated 24-2-2004 was passed to disburse the amount from the relief fund of Public Security. When amount was not disbursed, the Additional District Magistrate Sikar, vide order dated 28-4-2004, directed Asstt. Director Social Welfare Department Sikar to make payment of the amount. When no action was taken, the petitioner made representation to District Collector Sikar on 18-5-2004. However, vide order dated 15-6-2004, the District Collector observed that the Assistant Director, Social Welfare has pointed out that the petitioner's case for compensation relates to a period prior to the compensation amount being revised by the Government. Hence, she is entitled to only Rs.5,000/- by way of compensation. Thus, the Collector reduced the compensation from Rs.50,000/- to Rs.5,000/-. Hence, this petition before this Court. 3. Mr. Anoop Dhand, learned counsel for the petitioner, has argued that prior to promulgation of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules,1995 (`the Rules' for short), the State Government had issued circular dated 8-5-1985, wherein State Government had held that it would grant a compensation of Rs.5,000/- to the victim of rape provided that the victim belongs to Scheduled Castes community. However, after promulgation of the Rules, the said circular has elapsed. Under Rule 15 of the Rules, a legal duty has been imposed upon the State Government to prepare a model Contingency plan for implementing the provisions of the Act and to notify the same in the Official Gazette. Thus, under Rule 15, the State Government was legally bound to prepare a compensation scheme. Rule 12(4), moreover, requires that a District Magistrate or Sub Divisional Magistrate should pay interim relief in cash or in kind or both to the victims of atrocity, their family members and dependents according to the schedule annexed to these Rules. According to the schedule, a victim of sexual exploitation was entitled to get a compensation of Rs.50,000/-. Out of this compensation, 50% of the amount should be paid after medical examination and remaining 50% should be paid at the conclusion of trial. According to learned counsel the State Government should have prepared the model contingency plan. But it failed to do so. Later on, vide circular dated 29-9-2000, a rape victim was entitled to get one lakh rupees. According to the learned counsel, since the alleged rape, in the present case, took place on 25-5-2000, the petitioner would be entitled to get a compensation of Rs.50,000/-, as the petitioner cannot be made to suffer for the omission on the part of State Government in not preparing the model contingency plan. Learned counsel further contended that Rule 15 is mandatory provision, and is not directory in nature. In order to support his contentions, learned counsel has placed reliance on Dr.Manuja Agarwal Vs. State of Rajasthan [2002(3) RLR 131]. The learned counsel has, further, contended that the order dated 23-1- 2004 was passed on the basis of the Rules. Lastly, that the compensation amount could not possibly be reduced from Rs.50,000/- to Rs.5,000/- without giving an opportunity of hearing to the petitioner. Since the impugned order has been passed behind the back of petitioner, obviously the principles of natural justice have been violated. 4. On the other hand, Mr. S.N. Kumawat, the learned Additional Advocate General, has contended that Rule 15 of the Rules is not mandatory, but is directory in nature. The words used in the Rule, does not indicate that it is mandatory in nature. Since the grant of compensation carries financial implications, certain discretion has to be given to the State to prepare a model contingency plan as and when the State deems necessary. Since, a contingency plan, as reflected in circular dated 8-5-1985, already existed, it was not necessary to prepare a new contingency plan immediately after promulgation of the Rules. It was only in the year 2000, that the State felt that the compensation needs to be increased, which was duly increased to Rs.1 lakh. Secondly, on the date of alleged commission of offence, the Circular dated 8-5-1985 was in operation. Therefore, the petitioner is entitled to merely Rs.5,000/- in accordance with the said circular. Thirdly, the Circular dated 29-9-2000 cannot be given retrospective effect. Fourthly, there is not an iota of evidence to show that the order dated 23-1-2004 was passed keeping in view the schedule attached to the Rules. In fact, once it was noticed that the said order was passed ignoring the fact that the Circular dated 8-5- 1985 was in operation on the date of incident, necessary corrections were made and compensation was duly reduced from Rs.50,000/- to Rs.5,000/-. Lastly, according to circular dated 3-7-2003, it was clarified by the Government that the increased compensation would be applicable only from the date of Circular and not prior to it. Therefore, the Circulars dated 29-9-2000 or 11-6-2003 cannot be given retrospective effect. 5. Heard learned counsel for the parties and perused the material available on record. 6. Rule 15 of the Rules, reads as under:- “15. Contingency plan by the State Government. (1) The State Government shall prepare a model contingency plan for implementing the provisions of the Act and notify the same in the Official Gazette of the State Government. It should specify the role and responsibility of various departments and their officers at different levels, the role and responsibility of Rural/ Urban Local Bodies and Non Government Organisations, Inter alia this plan shall contain a package of relief measures including the following:- (a) scheme to provide immediate relief in cash or in kind or both; (b) allotment of agricultural land and house sites; (c) the rehabilitation packages; (d) scheme for employment in Government or Government undertaking to the dependant or one of the family members of the victim; (e) pension scheme for widows, dependant children of the deceased, handicapped or old age victims of atrocity; (f) mandatory compensation for the victims; (g) scheme for strengthening the socio-economic condition of the victim; (h) provisions for providing brick/ stone masonry house to the victims; (i) such other elements as health care, supply of essential commodities, electrification, adequate drinking water facility, burial/ cremation ground and link road to the Scheduled Castes and the Scheduled Tribes, habitats. (2) The State Government shall forward a copy of the contingency plan or a summary thereof and a copy of the scheme, as soon as may be, to the Central Government in the Ministry of Welfare and to all the District Magistrate, Sub- Divisional Magistrates, Inspectors General of Police and Superintendent of Police. 7. Although, the said Rule uses the word “shall”, but considering the fact that preparation of model contingency plan would entail financial implications, the word “shall” cannot be read as a mandatory word. After all, considering the financial implications, the State will have to decide the extent and the date on which contingency plan should be drawn and should be made effective. After all, financial implications would have to be left to the discretion of the State. As, such implications would be subject to the finances of the State itself. Therefore, the contention of learned counsel that Rule 15 is mandatory is inapplicable. Rule 15 is merely a directory provision, directing the State to prepare model contingency plan. Thus, the State was not required to prepare model contingency plan immediately after promulgation of the Rules. 8. Admittedly, circular dated 8-5-1985 was in operation on the date when the alleged incident took place on 23-5-2000. Thus, the petitioner is entitled to receive the compensation as laid down in the circular dated 8-5-1985. Since the circular dated 29-9-2000 was issued after the date of incident, the same cannot be given retrospective effect. There is nothing in the Rules, which warrant that model contingency plan once prepared by the State, would have to be given retrospective effect. Therefore, the arguments of learned counsel for the petitioner that according to Circular dated 29-9-2000, the petitioner would be entitled to receive the compensation more than Rs.5,000/- is without merit. 9. A bare perusal of the order dated 23-1-2004, does not reveal that it was passed keeping in mind the provisions of Rule 15 of the Rules. Such an interpretation by the learned counsel, is merely a figment of imagination not supported by any evidence. In fact, vide order dated 3-7-2003 the State Government had already clarified that a circular laying down financial implication, would not be given retrospective effect. Therefore, the order dated 23-1-2004 was corrected and the order dated 15-6-2004 was passed. Hence, the respondent was justified in reducing the compensation from Rs.50,000/- to Rs.5,000/-. 10. The judgment in the case of Dr.Manuja Agarwal (supra) dealt with the question of reservation for disabled persons in Medical services. The said case dealt the provisions of Persons with Disabilities (Equal Opportunities) Protection of Rights and Full Participation Act,1995. The provisions of the Rules,1995 and of the Act are not para materia to each toher. Thus, the case of Dr.Manuja Agarwal (supra) is not applicable in the present case. It does not come to the rescue of the petitioner. 11. In these circumstances, there is no merit in the writ petition. It is, hereby, dismissed. There shall be no order as to costs. ( R.S. CHAUHAN ) J. arn