1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2149 OF 1998 Shri Vasant K. Athavale ...Petitioner v/s Union of India, through the General Manager, Western Railway, Churchgate, Mumbai ...Respondents Mr E.R. Naik for Petitioner. None for Respondents. CORAM : D.K. DESHMUKH AND R.G. KETKAR JJ. DATE : 20TH AUGUST 2009. 2 P.C. :- 1] By this petition, the petitioner challenges the order passed by the Central Administrative Tribunal, Mumbai Bench in original application No. 623 of 197 dated 13th August 1998. By that order, the CAT has dismissed the original application filed by the petitioner. The facts that are relevant are that the petitioner was working as Assistant Coaching Clerk with the Central Railway. A charge- sheet was served on him for misconduct. As a result of disciplinary enquiry, punishment of dismissal was imposed on him by oder dated 29th April 1983. The appeal preferred against that also failed. The petitioner then filed a mercy appeal. In the mercy appeal, there was an order made on 18th August 1983 whereby the order of dismissal was maintained, however, it was directed that if the petitioner wants reappointment on humanitarian ground, he may apply for the same separately. The petitioner made a representation on 24th August 1983 requesting for reappointment. As per the order dated 5th October 3 1983, the petitioner was appointed as a Train Clerk as a fresh appointee for all purposes. Pursuant to that order, the petitioner joined services on 6th October 1983 and retired from service on 30th June 1992. Now, taking the service of the petitioner into consideration after his reappointment on 6th October 1983, the petitioner was not entitled to pension. He therefore approached the CAT. It appears that his case before the CAT was that he was entitled to compassionate grant under rules 309 and 310 of Manual of Railway Service Pension Rules. The CAT however found that he had not applied for compassionate grant and therefore the original application which was registered as 1081 of 1995 was disposed off with liberty to the petitioner to make a representation for compassionate grant in terms of rules 309 and 310 of the said Rules. The petitioner accordingly made a representation which was rejected by order dated 23rd April 1997. The authority held that the petitioner is not entitled to compassionate grant under the aforesaid Rules. That order was subjected to challenge in original application No. 4 623 of 1997 which has been decided by order dated 13th August 1998. It is this order which is challenged in this petition. 2] The learned counsel appearing for petitioner submitted that as in the original order of dismissal, the disciplinary authority has not stated that the petitioner is not entitled to any pension, the petitioner cannot be denied pension. He relied on the observations of the Supreme Court in its judgment in the case of Major G.S. Sodhi v/s Union of India, reported in (1991) 2 SCC 371. 3] None appears for the respondents. We have perused the record. Perusal of the record shows that the petitioner had gone before the CAT not for claiming pension as a matter of right, thereby the petitioner conceded that because of his dismissal from service, the service rendered by him before dismissal cannot be taken into consideration for holding that he is entitled to pension under the Pension Rules and if the service rendered by the 5 petitioner after his reappointment is taken into consideration, he definitely does not become entitled to pension as a matter of right and therefore, the petitioner was not claiming pension as a matter of right, but he was only claiming compassionate grant under rules 309 and 310 of Manual of Railway Pension Rules. Rules 309 and 310 of the said Rules which are relevant for our purpose read as under :- 309. Removal or dismissal from service  No pensionary benefit may be granted to a Railway servant on whom the penalty of removal or dismissal from service is imposed; but to a Railway servant so removed or dismissed, the authority who removed or dismissed him from service may award compassionate grant(s) corresponding to ordinary gratuity and/or death-cum- retirement gratuity, and/or allowances  corresponding to ordinary pension, when he is deserving on special consideration; 6 provided that the compassionate grant(s) and/or allowances awarded to such a Railway servant shall not exceed two-thirds of the pensionary benefits which would have been admissible to him, if he had retired on medical certificate. 310.Para 309 vests the officer removing or dismissing the Railway servant from service with an absolute discretion to grant or not to award any compassionate grant(s) and/or allowances, the only restrictions being that, if awarded, it shall be exceed the maximum of two-thirds of the pensionary benefits that would be admissible to the Railway servant concerned on retirement on invalid gratuity/pension. Each case has to be considered on its merits and a conclusion has to be reached on the question whether there were any such extenuating features in the case as would make the punishment imposed, though it may 7 have been necessary in the interest of the Government unduly hard on the individual. In considering this question, it has been practice to take into accounts not only the grounds, on which the Railway servant was removed or dismissed, but also the kind of service he has rendered. Where it can be legitimately inferred that the Railway servant s service has been dishonest there can seldom be any good case for award of compassionate grant(s) and/or allowances. Poverty is not an essential condition precedent to the award of compassionate grant(s) and/or allowances, but special regard is also occasionally paid to the fact that Railway servant has a wife and children dependent upon him through this factor by itself is not, except, perhaps, in the most exceptional circumstances, sufficient for the grant of compassionate grant(s) and/or allowances. 8 Perusal of the above quoted rules shows that the grant of compassionate grant is not a matter of right, but it is in the discretion of the Competent Authority and if the Competent Authority finds that the case of the employee concerned deserves special consideration, then an order can be made. It is clear from the above quoted rules that the concerned employee is not entitled to pension as a matter of right. Therefore, the moment the petitioner claims compassionate grant, he has to concede that he is not entitled to pension as a matter of right and therefore, whatever is said by the Supreme Court in its judgment in the case of Major G.S. Sodhi (supra) will not be relevant in the present case. While considering the application of the petitioner for compassionate grant, the Competent Authority observed that the order permitting the petitioner to apply for fresh service and granting him fresh service was itself made on humanitarian consideration and by showing compassion. As a result, the petitioner was able to serve right from 9 1983 to 1992 and therefore, there is no room to show further compassion and direct payment of any grant. The CAT has held that compassionate grant under rules 309 and 310 is not a matter of right. We have not been shown anything which can suggest that this observation made by the CAT is wrong. The CAT has held that the reason which has been given by the Competent Authority holding that the petitioner is not entitled to any further compassion appears to be right. It has been accepted by the CAT and we find no reason to disagree with that. The punishment of dismissal was imposed on the petitioner for his proved misconduct. He accepted that punishment, therefore that chapter was closed. He was shown compassion as a result of which he was able to serve again and earn salary for nine years. In our opinion, again forcing the Government to make compassionate grant would not be justified. The petition therefore fails, rule is discharged with no order as to costs. Notice of motion Nos.634 of 2003 and 550 of 2007 are disposed off. 10 Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE R.G. KETKAR )