IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.5873/05 Shrimati Sharda vs. State & Ors. Date of order : 11/11/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri R.C. Joshi for the petitioner. Shri Hemant Gupta, Addl. Govt. Counsel for the respondents. ****** This writ petition has been filed by widow of late Shri Hari Singh, who was originally removed from service by order of the disciplinary authority dated 17.7.2001. He filed the appeal before the appellate authority. The appellate authority by his order dated 8.11.2002 held that penalty was disproportionate to the gravity of the charges proved and therefore while setting aside the penalty of dismissal, instead directed that the petitioner shall be compulsorily retired on proportionate pension. During the pendency of the appeal, Shri Hari Singh expired on 9.7.2002. However, the petitioner submitted the pension papers for grant of pension / family pension and other retiral / terminal dues and his case was sent to Directorate of Pension. An objection was raised by the Pension Directorate by letter dated 21.10.2003 that since the services rendered by the late husband of the petitioner were less than 10 years and therefore he was not qualified for even the proportionate pension. Shri R.C. Joshi, learned counsel for the petitioner has argued that the penalty of dismissal was set aside by the appellate authority upon his satisfaction that this penalty was disproportionate to the gravity of charges proved against the husband of the petitioner. It was therefore directed that he shall be compulsorily retired on proportionate pension by way of penalty. Learned counsel argued that this was one of the penalties as enumerated in clause (v) of Rule 14 of the CCA Rules, 1958. He argued referring to Rule 42 of the Rajasthan Civil Services (Pension) Rules 1996 that the said Rules provides that a government servant compulsorily retired from service may be granted pension or gratuity or both at the rate not less than two thirds and not more than full compensation pension or gratuity or both admissible to him on the date of compulsory retirement. In any case, sub- rule (3) of Rule 42, a pension granted or awarded under sub-rule (1) cannot be less than Rs.1,275/- per month. Learned counsel argued that according to the said Rule, the deceased husband of the petitioner was at least entitled to receive that much of pension and accordingly his other retiral dues should also be paid. Learned counsel also referred to Rule 166 of the Pension Rules and argued that the aforesaid Rule confers upon the Government, power to relax any of the provisions of these Rules if it is satisfied that the same caused undue hardship in a particular case and in the present case the late husband of the petitioner was initially appointed on 4.1.1992 and wold be at least deemed to have been continued in service till he unfortunately expired on 9.7.2002 and in this manner he would have completed nine years and six months and few days. Learned counsel in support of this argument also relied on the judgement of this Court in Ex. L/Nk Man Singh vs. UOI & Ors.-2005 WLC (Raj.) UC 460 and Harphool Singh through L.Rs. vs. UOI & Anr.-2004 (4) WLC (Raj.) 261. Shri Hemant Gupta, learned Additional Government Counsel for the State opposed the writ petition and argued that the minimum qualifying service for grant of pension according to the Rules, specifically Rule 54 of the Rules of 1996, has to be 10 years. Even if the appellate authority has reduced the penalty of removal to that of compulsory retirement and proportionate pension, such an order cannot be given effect to, being contrary to the provisions of law. Learned counsel argued that since the late husband of the petitioner did not complete requisite qualifying period of 10 years, he would not be entitled to even the proportionate pension. The writ petition be therefore dismissed. Consideration of the aforesaid arguments and perusal of the orders passed by the disciplinary authority as also the appellate authority makes it clear that the situation that has arisen as a result of the order of the appellate authority is creation of the respondents themselves. Neither was it choice of the late husband of the petitioner of course that matter of the writ petitioner as to what penalty was substituted for the originally imposed penalty of removal when the appellate authority held the view that the penalty of removal was disproportionate to the gravity of the charges proved, nor was it within the control of either the late husband of the petitioner or that of the petitioner as to upto what time, he would have remained alive when late husband of the petitioner unfortunately expired on 9.7.2002 and had he lived to himself see the order passed by the appellate authority, he would have certainly completed 9 years and 11 months by that date and in that event, the sub-rule (3) of Rule 54 could be worked. The said sub-rule (3) of Rule 53 provides that in calculating the length of qualifying service fraction of a year equal to three months and above shall be treated as a completed half year and reckoned as qualifying service. In the present case, the respondents themselves having substituted the penalty of removal by that of compulsorily retirement on proportionate pension cannot be allowed to question correctness of the same, even if the late husband of the petitioner did not complete the period of 10 years. The penalty of compulsory retirement on proportionate pension is referable to Rule 14 of the CCA Rules and therefore even if one were not to go by the argument that such order of penalty has to be independently examined and implemented, the fact remains that the order of penalty which has been imposed by the respondents holds good even till now. The impediment in grant of pension to the late husband of the petitioner, if at all there was any, should in the peculiarities attached to this case to be taken to have been relaxed with reference to Rule 166 of the Pension Rules. This Court in somewhat similar circumstances in Man Singh, supra where the petitioner completed 9 years, 10 months and 5 days as against the qualifying service of 10 years, allowed the writ petition directing the respondents to treat the aforesaid period as the completed period of 10 years. In the result, this writ petition is allowed. The respondents are directed to give effect to the order of penalty has modified by the appellate authority dated 8.11.2002 and accordingly grant all consequential benefits to the petitioner with interest @ 9% per annum within a period of three months from the date copy of this judgment is produced before them. (MOHAMMAD RAFIQ), J. RS/