IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 3213 of 2008 (OA(D) No.964 of 1996 Judgment reserved on: 10.12.2009 Decided of decision: 22.2.2010 Ram Singh . ….. Petitioner. Vs. State of H.P.& Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mrs. Ranjana Parmar, Advocate. For the Respondents : Mr. Anshul Bansal, Addl. A.G. with Mr. R.P. Singh, Assistant A.G for respondents No.1 & 2. Mr. Anup Rattan, Advocate for respondent No.3. Kuldip Singh, Judge. The grievance of the petitioner in the petition is against order dated 16.12.1995 Annexure A-7 of respondent No.1-A, refusing to grant compassionate allowance to the petitioner with further prayer to direct the respondents to pay compassionate allowance to petitioner pursuant to order dated 31.7.1995 of respondent No.2. 2. The case of the petitioner is that he was recruited in Police Department in May 1953 and was placed under suspension on 25.7.1970 in view of his involvement in FIR No.42/70 registered at Police Station, Rohru on 17.7.1970. The petitioner was convicted Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… and sentenced to death by learned Sessions Judge, Nahan on 27.9.1971. The death sentence was converted into life imprisonment by the High Court in appeal on 14.7.1972. Thereupon the petitioner was dismissed from service vide office order dated 28.5.1973. 3. The petitioner had made several representations to department for grant of compassionate allowance keeping in view of his past service record and taking into consideration the liabilities of dependants upon him, but representations of petitioner were not decided. The petitioner was prematurely released vide order dated 31.7.1991 passed in Criminal Writ Petition No.36 of 1985. The petitioner again represented to Department for grant of compassionate allowance on the same analogy as was granted to Rattan Singh and TGR Nayar, who were similarly situated. The petitioner was not given compassionate allowance nor his case was considered for compulsory retirement. The petitioner thereupon filed Original Application No.89 of 1995 in the erstwhile Tribunal and on 2.3.1995 the erstwhile Tribunal directed that the Original Application so filed by the petitioner be treated as a representation to Director General of Police and to decide the same in accordance with law within three months. The liberty was granted to the petitioner to approach the erstwhile Tribunal again. 4. The Director General of Police referred the matter to Superintendent of Police, Solan with the directions to decide the same in accordance with Rule 41 of CCS (Pension) Rules, 1972, who accordingly, sanctioned 2/3rd pension and death-cum-retiral gratuity as compassionate allowance to the petitioner vide order dated …3… 31.7.1995. In pursuance of order dated 31.7.1995 a letter was sent by Superintendent of Police, Solan-respondent No.2 to the office of Senior Deputy Accountant General, Shimla on 26.8.1995 informing that compassionate allowance (2/3rd of Pension and Gratuity) has been sanctioned in favour of petitioner. 5. The petitioner was expecting to get the amount and arrears of the compassionate allowance, but to his surprise Director General of Police on his own reviewed the matter vide order dated 16.12.1995 and rejected the representation of the petitioner. The petitioner was 71 years of age having ailing wife and one minor daughter to support. He has no male issue to look after him at the fag end of his life. The petitioner has challenged the order dated 16.12.1995 on the grounds that it is unjust, arbitrary and in violation of Articles 14 and 16 of the Constitution. The Superintendent of Police under the police rules is the appointing and dismissing authority of the constable and therefore, Superintendent of Police was competent to decide the representation of the petitioner. Director General of Police had no jurisdiction to review the decision of the Superintendent of Police dated 31.7.1995. Head Constable Daya Nand, constable Rattan Singh and TGR Nayar were granted compassionate allowance under similar circumstances. The petitioner has been discriminated. The petitioner had put in 17 years of service at the time of his arrest; he had qualified himself for grant of pension. 6. The petition has been opposed by respondents No.1, 1-A, and 2 by filing joint reply. In preliminary objections, it has been pleaded that compassionate allowance under Rule 41 of CCS …4… (Pension) Rules cannot be claimed as a matter of right and therefore, petition is not maintainable. On merits, it has been submitted that erstwhile Tribunal on 2.3.1995 had directed Director General of Police to decide the matter whereas the matter was erroneously sent by the office of Director General of Police to Superintendent of Police, Solan without bringing the facts and order of Tribunal to the notice of Director General of Police. The matter was to be decided by the Director General of Police as per order of the Tribunal, therefore, Superintendent of Police, Solan had no jurisdiction. The order passed by Superintendent of Police was wrong and was also not legal order as the same was not a speaking order. The order passed by Superintendent of Police, Solan was without jurisdiction. 7. The order of the Superintendent of Police was reviewed by Director General of Police in view of order of Tribunal wherein it was directed that Director General of Police will consider the representation. The petitioner was sentenced to life imprisonment under Section 302 IPC. Rule 8 of CCS( Pension) Rules provides that the pension is subject to future good conduct and the appointing authority may order in writing withhold or withdraw pension or a part thereof whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. There can be no serious offence than a murder. The petitioner is not entitled to the compassionate allowance. The Superintendent of Police had sanctioned the compassionate allowance w.e.f. 28.9.1971 when the petitioner was in jail. The order passed by Superintendent …5… of Police was wrong. The order dated 16.12.1995 of Director General of Police is legal. 8. The cases of Daya Nand and Rattan Singh are not similar. They were not convicted under Section 302 IPC but under Section 330 IPC. TGR Nayar was convicted under Section 409 IPC and was not an employee of the police department. The Rule 41 of CCS (Pension) Rules provides that a Govt. servant who is dismissed or removed from service shall forfeit his pension and gratuity but competent authority has powers to sanction compassionate allowance not exceeding 2/3rd of pension or gratuity or both. The Rule 41 provides compassionate allowance under certain circumstances but Rule 8 provides withdrawal of pension, if convicted in a serious crime or for grave misconduct even if the incumbent retires honourably. The petitioner was convicted in a heinous offence. 9. The respondent No.3 has also filed reply and has taken the stand that on scrutiny of the case it was observed that Superintendent of Police, Solan was not competent to sanction compassionate allowance under Rule 41 of CCS (Pension) Rules, 1972 and sanction of Director General of Police for grant of pension was required to be obtained to indicate the date of commencement. Therefore, pension case of the petitioner was returned to Superintendent of Police by respondent No.3. The Superintendent of Police, Solan vide letter No.709 dated 5.1.1996 informed respondent No.3 that the orders issued by him earlier sanctioning compassionate allowance to the petitioner in terms of Rule 41 of CCS( Pension) …6… Rules, 1972 had been cancelled by Director General of Police on 16.12.1995. 10. I have heard learned counsel for the parties. The petitioner had filed OA No.89/95 for grant of compassionate allowance to him. On 2.3.1995 the erstwhile Tribunal had passed the following order in OA No.89/95:- “ In the peculiar circumstances of the case the present application itself is directed to be treated as representation to the Director General of Police who will consider the case of the applicant on merits in accordance with law and decide the same within a period of three months with liberty reserved to the applicant to approach the Tribunal again on the same cause of action, if he still feels aggrieved. The application is finally disposed of in above referred to terms. Dasti copy”. In view of order dated 2.3.1995, the petitioner was well aware that his representation was to be decided by Director General of Police, Himachal Pradesh and by no other officer. In the reply of respondents No.1,1-A and 2 it has been stated that office of Director General of Police did not bring to the notice of Director General of Police order dated 2.3.1995 of the Tribunal vide which representation of the petitioner was to be decided by Director General of Police and in these circumstances, papers were erroneously sent by the Director General of Police to Superintendent of Police, Solan. Thereupon, vide order dated 31.7.1995, the Superintendent of Police; Solan had sanctioned compassionate allowance to the petitioner. The jurisdiction to decide the representation was conferred on the Director General of Police by erstwhile Tribunal vide order dated 2.3.1995. In these circumstances, Superintendent of Police, Solan had no …7… jurisdiction to decide the representation of petitioner for grant of compassionate allowance, even, if it is assumed that papers for decision were not erroneously sent by Director General of Police to Superintendent of Police, Solan to decide the representation of the petitioner. In addition, the representation of the petitioner was to be decided on merits as per order dated 2.3.1995. The perusal of order dated 31.7.1995 indicates that Superintendent of Police, Solan has not considered the case of the petitioner on merits. The order dated 31.7.1995 is cryptic and not a speaking order. It does not have trappings of decision on merits. There is nothing in the order dated 31.7.1995 how and under what circumstances the petitioner is entitled to compassionate allowance under Rule 41 of the CCS ( Pension) Rules, 1972. Thus taken from any angle the order dated 31.7.1995 of Superintendent of Police is not sustainable. 11. The contention of learned counsel for petitioner that Director General of Police could not review order dated 2.3.1995 of Superintendent of Police, has also no force. The Superintendent of Police, Solan had no jurisdiction to decide the representation as per order of the Tribunal. Therefore, order dated 2.3.1995 of Superintendent of Police, Solan is without jurisdiction. Once the order is without jurisdiction such order is nullity. The Director General of Police has in fact not reviewed the order, he has independently passed legal order. The Director General of Police was directed by the erstwhile Tribunal to decide the representation. 12. The petitioner has put forward the case that Daya Nand, Rattan Singh and TGR Nayar were also given compassionate …8… allowance, even though they were also convicted by the Courts. The respondents No.1,1-A and 2 have taken the stand that petitioner cannot take any help from the cases of Daya Nand, Rattan Singh and TGR Nayar inasmuch as Daya Nand and Rattan Singh were onvicted under Section 330 IPC whereas TGR Nayar was convicted under Section 409 IPC. TGR Nayar was not an employee of the police department. There is no denial of the fact that offence under Section 302 IPC is graver and heinous in comparison to offence under Section 330 IPC. Daya Nand, Rattan Singh and TGR Nayar constituted different class as far as their conviction and sentence are concerned, therefore, it can not be said that respondents have acted arbitrarily in violation of Articles 14 and 16 of the Constitution when they refused compassionate allowance to petitioner who was convicted and sentenced under Section 302 IPC. 13. No other point was urged. 14. The result of the above discussion there is no merit in the petition and the same is dismissed. February 22, 2010 (Kuldip Singh), (sks) Judge.