S.B.CIVIL WRIT PETITION NO.1870/96-Smt.Chain Kanwar vs. DIG of Police, Range Ajmer & anr. DATE OF ORDER : 10/12/2008 1/6 S.B.CIVIL WRIT PETITION NO.1870/96 (Smt.Chain Kanwar vs. DIG of Police, Range Ajmer & anr.) DATE OF ORDER : 10/12/2008 HON'BLE DR.JUSTICE VINEET KOTHARI REPORTABLE Mr.R.G.Dave, for the petitioner. Mr.B.L.Tiwari, Government Counsel. 1. By this writ petition, the petitioner – Smt. Chain Kanwar widow of one Haraklal, a police constable, has approached this Court for grant of family pension on the ground that her husband Late Haraklal was working as Constable in the Police Department and who died on 4/7/1962 was wrongly dismissed from service on 17/3/1960 on the basis of an enquiry held against him and two other similarly situated police personnels on the ground that they had formed an association which was not permissible as per Rule 23 and 23 A of the RSR. 2. The other colleague to whom similar charge sheet was given was one Mr.Madan Lal Thanvi, who challenged the dismissal order by way of writ petition before this Court namely D.B.Civil Writ S.B.CIVIL WRIT PETITION NO.1870/96-Smt.Chain Kanwar vs. DIG of Police, Range Ajmer & anr. DATE OF ORDER : 10/12/2008 2/6 Petition No.252/1961 which came to be allowed on 5/10/1962 and the Court struck down the said Rule 23 and 23 A as ultra vires the Constitution and the impugned penalty orders passed by the Deputy Inspector General of Police, Jodhpur Range, Jodhpur dated 17/3/1960 upheld by Inspector General of Police were quashed by this Court. The operative part of the said judgment produced as Annex.3 of the present writ petition is reproduced hereunder for ready reference:- “In the light of the above discussions, rules 23 and 23-A of the Rules must be held to infringe the fundamental rights of the Government servants as a class and cannot be sustained with reference to the interest of the public order or morality and have to be declared ultravires of the Constitution. The petitioner having been dismissed from service only on the basis of the infringement of these rules, his dismissal from service cannot also be sustained. We have, therefore, no alternative but to accept this writ application. The writ petition is allowed, rules 23 and 23- A of the Rules are declared ultravires of the Constitution and the order of the Deputy Inspector General of Police, Jodhpur Range, Jodhpur dated the 17th March, 1960, as upheld by the Inspector S.B.CIVIL WRIT PETITION NO.1870/96-Smt.Chain Kanwar vs. DIG of Police, Range Ajmer & anr. DATE OF ORDER : 10/12/2008 3/6 General of Police, Rajasthan dismissing the petitioner, is set aside. There will be, however, no order as to costs. Sd/- D.S.Dave Sd/- L.N.Chhangani” 3. The husband of petitioner expired on 4/7/62 before the said judgment of Division Bench was rendered on 5/10/1962 and, therefore, no question arose of his approaching the respondents or this court for consequential benefits or setting aside his punishment order by approaching the Court of law. The present petitioner – widow of late Shri Haraklal came to know of the said judgment as well as grant of family pension to the widow of said Madan Lal Thanvi only six months prior to filing of this writ petition, as stated in para no.9(c ) of the writ petition. The petitioner, therefore, approached this Court in 1996, of course with a delay of more than 30 years for seeking directions to the respondents for grant of family pension to her. She was 80 years old at that time and now when this matter is taken up for final hearing she is more than 90 years of age. 4. The writ petition has been opposed by the respondents mainly S.B.CIVIL WRIT PETITION NO.1870/96-Smt.Chain Kanwar vs. DIG of Police, Range Ajmer & anr. DATE OF ORDER : 10/12/2008 4/6 on the ground of delay and also on the technical ground that dismissal order passed against the husband of petitioner was never challenged and, therefore, there was no question of granting family pension to the petitioner. 5. I have heard learned counsels and given my thoughtful consideration to the facts obtaining in the present case. 6. When admittedly the very basis of initiating disciplinary action against the husband of petitioner was set at naught by the Division Bench judgment of this Court declaring Rules 23 and 23-A as ultravires, therefore, the very foundation of the punishment order passed against the petitioner stood removed. It was so declared by this Court in its judgment dated 5/10/1962 in case of Madan lal Thanvi, colleague of petitioner's husband, who was proceeded against simultaneously. The facts stated on oath by the petitioner that after the death of her husband on 4/7/62 and even after the decision of this Court dt:5/10/62 she did not come to know of the said judgment and grant of family pension to other similarly situated persons like widow of said Madan Lal Thanvi appears to be believable and even they S.B.CIVIL WRIT PETITION NO.1870/96-Smt.Chain Kanwar vs. DIG of Police, Range Ajmer & anr. DATE OF ORDER : 10/12/2008 5/6 have not been specifically controverted by the respondents. The grant of family pension is a continuous cause of action and in view of that, delay in approaching the Court even after 30 years after the death of her husband can be condoned by the Court. It is true that grant of other benefits to the present petitioner from back date at this stage in the face of punishment order having not been quashed or set aside at any point of time up till now may cause unnecessary loss to the respondent State, therefore, this Court is of the opinion that since the very foundation of dismissal of petitioner's husband was taken away by the Division Bench judgment cited above, the petitioner may be held to be entitled for grant of family pension at least by now. 7. Accordingly, this writ petition is allowed to the extent declaring the petitioner entitled to receive family pension from the respondents from now onwards. The said family pension as may be computed by the respondents may be paid to the petitioner on month to month basis and the necessary formalities in this regard should be completed by the respondents within a period of two months from today. No arrears of family pension will, however, be paid to the petitioner and the family pension will be payable to her from the S.B.CIVIL WRIT PETITION NO.1870/96-Smt.Chain Kanwar vs. DIG of Police, Range Ajmer & anr. DATE OF ORDER : 10/12/2008 6/6 month of January, 2009. 8. With these directions the writ petition is allowed. No order as to costs. A copy of this order be sent to the respondents for reporting back the compliance to this court forthwith. (DR.VINEET KOTHARI), J. item no. 5 baweja/-