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2017 DIGILAW 260 (RAJ)

BHANWARI DEVI v. STATE OF RAJ

2017-01-20

SANJEEV PRAKASH SHARMA

body2017
JUDGMENT : SANJEEV PRAKASH SHARMA, J. 1. The petitioner filed an application before this court which was registered as a letter petition, wherein she prayed that her husband Constable Bhanwar Lal, belt No. 261, was compulsorily retired by the Department on 30.06.1981 as he had become mentally upset and was declared mad while in service. It is submitted that he was appointed on 2nd February, 1970. It has also been submitted that in the order dated 30.06.1981, it was mentioned that the petitioner's husband would be paid pension and gratuity as per rules but no pension or gratuity was paid to her husband. It has further been submitted that she has five daughters and one son and there is no other means of livelihood. Notice of the letter petition was sent to the Department who submitted their reply and pointed out that the Constable Bhanwar Lal S/o Ramdeen was appointed on 22nd March, 1971 and as he remained absent from duty for different periods. Proceedings were initiated against him under Rule 16 of the C.C.A. Rules and was compulsorily retired vide order dated 30.06.1981 on the basis of power conferred under Rule 19 of CCA Rules of 1958. 2. It has been further stated that the petitioner's husband has remained in service for a total period of 10 years, 3 months and 9 days and out of the same 446 days have been treated as extraordinary leave and therefore the total service was treated as 9 years, 17 days only. As the service was less than ten years, pension could not be paid to him. A gratuity amount of only Rs. 1,242/- as well as service gratuity of amount of Rs. 2,484/- was paid on 28.8.2004. 3. Amicus Curiae, Sh. Hanuman Choudhary was appointed who has submitted that the petitioner's husband was wrongfully denied his pension and retirement benefits. It has been stated that the petitioner's husband who went under disability of mental instableness during the course of service could not have been served with order of compulsorily retirement. The action was clearly illegal as it was very well-known to the respondents that the petitioner's husband is not of stable mind and therefore, there was no occasion for him to attend duties. The action was clearly illegal as it was very well-known to the respondents that the petitioner's husband is not of stable mind and therefore, there was no occasion for him to attend duties. Consequently, the absence cannot be said to be a misconduct and the entire proceedings undertaken were bad in law as he could not contest the Departmental proceedings and no notice was given to his wife before taking action under Rule 19 of the CCA Rules, which is clearly illegal and unjustified. He has also taken this court to the provisions contained under persons with disabilities (Equal Opportunities, Protection of Rights and Full Partition, Act, 1995) which provides that a person who has suffered disability cannot be removed or dismissed from service. 4. Apart from above the amicus curiae has also taken in this court to the provisions of the Rajasthan Service Rule, 1951 as they existed at the time when the petitioner's husband was compulsorily retired. As per Chapter XX regarding conditions of grant of pension, Section III regarding invalid pension, the petitioner was entitled for grant of invalid pension under Rule 228, which is quoted as under:- "Rule 228: Condition of grant:- An invalid pension is awarded, on his retirement from the public service, to a Government servant who by bodily or mental infirmity is permanently incapacitated for the public service, or for the particular branch of it to which he belongs." 5. The State Government has also placed on record letter dated 04.02.2015 whereby recommendation has been made for granting invalid pension to the petitioner's husband. 6. So far as the learned counsel for the State is concerned, he has frankly stated that the order passed in 1981 regarding compulsorily retirement has to be treated as regular retirement on account of invalidity and apparently an error has crept in the order. The period of service has to be actually counted from the date of appointment till the date of passing of retirement order which comes to more than 10 years and the petitioner's husband would be entitled for pension. 7. This court appreciates the stand taken by Dr. The period of service has to be actually counted from the date of appointment till the date of passing of retirement order which comes to more than 10 years and the petitioner's husband would be entitled for pension. 7. This court appreciates the stand taken by Dr. A.S. Khangarot and finds that although under the Act of 1995 provisions have come into force relating to disability which may arise during service, it may not be applicable for the situation which was prevalent in the year 1981 and the action of retiring the petitioner's husband cannot be faulted. However, the said retirement has to be treated under 244(1) of RSR, 1951 and not under the provisions of 19 CCA Rules of 1958 and to that extent the order dated 30.06.1981 is modified. The petitioner shall be treated as having retired on account of having suffered disability of mental illness during service and would be entitled to receive invalid pension as well as pension for the period of ten years of service which he has rendered. Accordingly this petition is allowed. It is directed that now the department shall release the pension as well as invalid pension in terms of Rule 228 and arrears be paid to the petitioner within the period of 3 months from the date of passing of this order. The gratuity and retirement benefits would be recalculated and interest @ 9 % shall be payable on the amount which shall be revised. 8. In goes without saying that if the compliance of this order is not made within a period of three months, the petitioner may inform this court for initiating suo motu proceedings without further notice. 9. Write petition allowed - Amount if not released within three months - Same shall be subject to further proceedings in court.