CW1629/2007 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.1629/2007 Smt. Rukmani and Pradeep Kumar Kumawat Vs. The Union of India through its Secretary, Ministry of Home Affairs, New Delhi and Others Date of Order ::: 25.11.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Deepak Soni for Shri Praveen Balwada, Counsel for petitioners Shri M.S. Raghav, Counsel for respondents #### //Reportable// By the Court:- Petitioner no.1 Smt. Rukmani is mother of late Sanjay Kumar and petitioner no.2 Pradeep Kumar Kumawat is his brother. Late Sanjay Kumar was in service of Border Security Force as Constable having registration no.032214215. He died on 17.07.2004 in mysterious circumstances when he was serving at 13th B.N., B.S.F Camp at Sopore in State of Jammu & Kashmir. At the time of his death, he was unmarried. Shri Deepak Soni, learned counsel for petitioner, argued that respondent no.3 – Inspector General, Head Quarter, Punjab Frontier, Border Security Force, Jalendar Cantt., Punjab, sent a condolence message to petitioners that Sanjay Kumar committed suicide on 17.07.2004 by his own gun. The family was shocked to learn about this fact because CW1629/2007 // 2 // they had received a call from him just a day before 17.07.2004. He talked to petitioners and other family members. That day he was very happy. He was not a person of this nature; he was very optimistic about his life and therefore he chose to serve the nation and joined Border Security Force. Only two or three weeks ago before date of incident, he had applied for leave and when he left for duties, he was very happy. Learned counsel further submitted that petitioners filed an application for grant of pension to petitioner no.1 and compassionate appointment to petitioner no.2. Petitioner no.1, who is mother of late Sanjay Kumar, was nominated by deceased to receive all his terminal benefits. On being inquired, both father and mother of late Sanjay Kumar submitted affidavits declaring that deceased was unmarried at the time of his death. Petitioners submitted affidavit with regard to income of family and that petitioner no.1, who is mother of deceased, had no income and was dependent on deceased. Only income of family as per certificate duly attested by Tehsildar concerned on 04.09.2004 including pension @ Rs.2550/- per month of father, was Rs.55,616/- per annum. This was very insignificant income as family consists of two sons, one unmarried daughter and mother with father of deceased. Petitioners submitted a representation to Inspector General and Commandant of 13th B.N., B.S.F., to supply copy of investigation report CW1629/2007 // 3 // conducted under Section 174 Cr.P.C. to find out as to under what circumstances their son Sanjay Kumar died. Despite lapse of two-and-a-half-year, no such report was sent. Learned counsel for petitioners argued that while in communication sent to petitioners, Inspector General conveyed that late Sanjay Kumar had committed suicide by his own gun, now in reply to writ petition, respondents have come out with the plea that a court of enquiry was held which revealed that Sanjay Kumar committed suicide by using gun of another constable. Sanjay Kumar was supporting his family and without his support, it was difficult for family members to maintain themselves, who are five in number. Prayer of petitioner No.1 for grant of family pension and that of petitioner no.2 for considering him for compassionate appointment, was not considered by respondents for quite some time, hence they have been compelled to file present writ petition. It is therefore prayed that writ petition be allowed and petitioners be granted relief, as prayed for. Shri M.S. Raghav, learned counsel for respondents, has opposed writ petition and submitted that no representation was made by petitioners after 2004 and that compassionate appointment could not be given to petitioner no.2 because brother of deceased is not included in definition of dependents for purpose of compassionate appointment. CW1629/2007 // 4 // Learned counsel submitted that father of deceased is receiving a meager sum of Rs.2550/- as pension from Indian Railways being its former employee, and therefore mother of deceased Sanjay Kumar is dependent on her husband. She could not be said to be dependent on deceased Sanjay Kumar. Family pension was thus rightly declined to her. It is contended that matter was examined even for grant of ex-gratia payment but case of deceased Sanjay Kumar could not be covered even under those Rules because he committed suicide and dependents of those who commit suicide are not entitled to ex- gratia payment. Learned counsel further submitted that thorough enquiry was conducted regarding death of Sanjay Kumar in which it was revealed that no one can be blamed for his death. Since he was suffering from some disease and was not keeping good health; and recently he got engaged with girl whom he was to be got married within view months later as it was conveyed by his father, and that might have caused him extreme tension as he might be wanting to avoid getting married, and that may be a reason which led him to suicide. It is therefore prayed that writ petition be dismissed. Having heard learned counsel for parties and perused material on record, I find that so far as action of respondents denying compassionate appointment to petitioner no.2, brother of deceased government servant is concerned, the same cannot be CW1629/2007 // 5 // faulted because one brother cannot be considered dependent on another brother for purpose of compassionate appointment. Considerations for compassionate appointment also include factors like employment of another family members but in this family father of deceased was a retired government servant and family was also dependent on deceased and there is no other income and land and property and means of the family. Even then, those considerations cannot be applied while considering case for family pension, which is regulated by provisions contained in Family Pension Scheme, 1964 under Rule 54 of the Central Civil Services (Pension) Rules, 1972. The Government of India, Department of Personnel and Public Welfare vide office-memorandum F.No.38/37/08-P&PW(A), dated the 2nd September, 2008 has laid down that for purpose of grant of family pension the family can be put under two categories; while category no.1 is of widow or widower, who may be entitled to receive family pension up to the date of death or remarriage, whichever is earlier and son/daughter including widowed daughter, up to the date of his/her marriage/remarriage or till the date he/she starts earning or till age of 25 years, whichever is earliest. But, category no.2 consists of unmarried/widowed/divorced daughter, not covered by category no.1, entitled to receive family pension up to the date of marriage/remarriage or till date she starts earning or up to date of death, CW1629/2007 // 6 // whichever is earliest; parents, who were wholly dependent on government servant when he/she was alive, provided deceased employee had left behind neither a widow nor a child. It has been further clarified that family pension to dependent parents, unmarried/divorced/ widowed daughter will continue till their death. Dependency criteria for purpose of family pension shall be minimum family pension along with dearness allowance thereon. In present case, it is not in dispute that deceased government servant was unmarried and that he was eldest son of family and petitioner no.1 is his mother whom she had nominated to receive of his terminal dues, gratuity, amount of insurance etc. It is also undisputed that total annual income of family is very meager, as evident from record and certificate duly attested by Tehsildar concerned, showing annual income of Rs.55,616/-, which if translated in monthly income, would hardly come to Rs.4634.67p. Moreover, his father was not in regular government service but a retired personnel receiving a meager sum of Rs.2550/- as pension. There is no absolute bar in the Rules that two members of a family cannot receive pension/family pension simultaneously, if each of them independently qualifying for such entitlement. While father is receiving regular pension, in his own right, mother has approached this court claiming family pension because her son was serving Border Security Force and died at Sopore in Jammu & CW1629/2007 // 7 // Kashmir under mysterious circumstances while on active duty. Even sub-rule (11) of Rule 54 of the Central Civil Services (Pension Rules, 1972 provides that in case both wife and husband are government servants and are governed by provisions of this rule and one of them dies while in service or after retirement, the family pension in respect of the deceased shall become payable to the surviving husband or wife and in the event of the death of the husband or wife, the surviving child or children shall be granted two family pensions at at time. But that is not the issue to be decided in this case. What is to be seen is whether respondents were justified in refusing to pay family pension to mother of deceased just because his father happened to be a pensioner of Indian Railways. Amount of Rs.2550/- in present time can hardly be said to be sufficient to maintain a large family consisting of five members. Action of respondents in refusing to pay family pension to petitioner no.1, who is mother of deceased employee, in my considered view, is wholly illegal, which is also held arbitrary and unreasonable. Circumstances in which government servant Sanjay Kumar died also justified that family pension ought not to have been mechanically denied by respondent authorities to his mother. In result, this writ petition is partly CW1629/2007 // 8 // allowed. Respondents are directed to pay to petitioner no.1 family pension till her death in accordance with the Rules. She would be entitled to all consequential arrears together with interest thereon at rate of 9% per annum. Compliance of this order be made within three months from the date its copy is produced before respondents. (Mohammad Rafiq) J. //Jaiman//