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2018 DIGILAW 1615 (RAJ)

State of Rajasthan v. Sudha Devi Yadav

2018-08-01

DINESH CHANDRA SOMANI, MUNISHWAR NATH BHANDARI

body2018
JUDGMENT : MUNISHWAR NATH BHANDARI, J. Heard on the application under Section 5 of the Limitation Act so as the appeal. 2. There is a delay of 50 days in filing of the appeal. However, the application would be decided after considering merit of the appeal in view of the judgments of the Apex Court in the case of State of Haryana v. Chandramani, (1996) 3 SCC 132 and N. Balakrishnan v. M. Krishnamurthy, AIR 1998 SC 3222 . The judgments aforesaid rule the issue for consideration of application for condonation of delay. It is held that appeal should not be dismissed if the case has merit and otherwise delay is not such, which may defeat merit of the case thus consideration on the application would be made after considering merit of this case. 3. By this special appeal, a challenge has been made to the order dated 19th September, 2017, passed by learned Single Judge, allowing the writ petition preferred by the petitioner-non-appellant to seek benefit of ex-gratia grant and Special Pensionary Award. 4. Learned Additional Advocate General Mr. GS Gill submits that, in an accident took place on 11th February, 2008, petitioner-non-appellant's husband died. The petitioner-non-appellant made a claim for “ex-gratia grant” and “Special Pensionary Award”. It was denied as per the Rules. Learned Single Judge, however, allowed the benefit of ex-gratia grant ignoring provision of Rule 75 (2) (b) of the Rajasthan Civil Services (Pension) Rules, 1996 (for short “the Rules of 1996”) and further allowed “Special Pensionary Award” ignoring Rule 109 of the Rules of 1996. It was a simple case of accident while the non-appellant's husband was not even on duty thus the non-appellant was not entitled for any benefit out of it. Accordingly, the impugned order may be set aside. 5. Learned counsel for the non-appellant has contested the appeal. It is submitted that learned Single Judge rightly allowed the benefit of ex-gratia grant under Rule 75 (2) (b) of the Rules of 1996 apart from “Special Pensionary Award” under Rule 109 of the Rules of 1996. The husband of the petitioner-non-appellant was on duty while a trola came and intentionally hit him, causing death. In view of the above, case is covered by Rule 75 (2) (b) of the Rules of 1996. 6. The husband of the petitioner-non-appellant was on duty while a trola came and intentionally hit him, causing death. In view of the above, case is covered by Rule 75 (2) (b) of the Rules of 1996. 6. To support the arguments, learned counsel for the non-appellant has made reference of several judgments of this Court starting from the case of Savita Yadav v. State of Rajasthan, D.B. Civil Writ Petition No. 1668/1987 decided on 11.1.1990, wherein, considering Rule 268 (1) of the Rajasthan Service Rules, 1951 (for short “the Rules of 1951”), similar benefits were allowed. The judgment therein was upheld by the Supreme Court. 7. After the aforesaid judgment, this Court further dealt with the same issue in the case of State of Rajasthan v. Smt.Paras Kanwar, 2012 (3) RLW 2165. The judgment therein has also been affirmed by the Apex Court. In view of the above, the present case is covered by the judgment in the cases of Savita Yadav (supra) and Smt. Paras Kanwar (supra). 8. A further reference of judgment in the case of State of Rajasthan v. Mst. Madhu Bala, DB Special Appeal (Writ) No. 591/2015, decided vide order dated 01.08.2016, has been given apart from the judgment in the case of State of Rajasthan v. Smt. Urmila Devi, 1996 (2) RLW 732. 9. It is submitted that as per the Rule, then existing, the Special Pensionary Award was admissible only when an employee is killed while on duty as a result of enemy action. The words “as a result of enemy action” were deleted in the case of Savita Yadav (supra) after holding it to be ultra vires. Once, the words existing in the Rule 268 (1) of the Rules of 1951 were deleted, the subsequent provision of Rule 109 of the of Rules of 1996 needs to be read accordingly. It is for the reason that the said Rule was earlier Rule 268 (1) under the old Rules of 1951. The Chapters pertaining to pensionary benefits were then separated and Rules of 1996 were made. In view of the above, Rule 109 of the Rules of 1996 has to be given interpretation in reference to the judgment in the case of Savita Yadav (supra), though, there is a change in the Rule to some extent. The prayer is accordingly to dismiss the appeal preferred by the State Government. 10. In view of the above, Rule 109 of the Rules of 1996 has to be given interpretation in reference to the judgment in the case of Savita Yadav (supra), though, there is a change in the Rule to some extent. The prayer is accordingly to dismiss the appeal preferred by the State Government. 10. We have considered rival submissions made by learned counsel for the parties and scanned the matter carefully. 11. The petitioner-non-appellant has been given benefit of ex-gratia grant as well as Special Pensionary Award under Rule 75 (2) (b) and Rule 109 of the Rules of 1996 respectively. It is in a case where non-appellant's husband died out of an accident on 11th February, 2008. 12. The dispute exists as to whether it was while on duty or otherwise. It is, however, not in dispute that death took place out of an accident. 13. Rule 75 of the Rules of 1996 allows ex-gratia grant if death is out of an accident. It cannot be disputed that death in the instant case caused out of an accident thus in our opinion, the petitioner-non-appellant has rightly been awarded benefit of ex-gratia grant. However, the direction to pay a sum of Rs. 20 lac is not proper. 14. The accident in the instant case took place on 11.02.2008 and, if the provision of Rule 75 of the Rules of 1996, prevalent at that time, is looked into, ex-gratia grant under Rule 75 (2) (b) of the Rules of 1996 was less than awarded by learned Single Judge. In fact, amendment in the Rule was made from time to time. The amendment made vide Notification dated 25th February, 2009 shows enhancement of ex-gratia grant at a sum of Rs. One Lac but then the aforesaid Notification cannot be applied as it is subsequent to the accident. 15. Accordingly, we cause interference in the direction given by learned Single Judge awarding Rs. 20 lac towards ex-gratia grant, rather, a direction is given to the State Government to allow benefit of ex-gratia grant as per Rule 75 (2) (b) of the Rules of 1996, existing on the date of accident i.e. 11.02.2008. The first issue in regard to ex-gratia grant is decided accordingly. 16. Now, the issue comes in regard to Special Pensionary Award. 17. The first issue in regard to ex-gratia grant is decided accordingly. 16. Now, the issue comes in regard to Special Pensionary Award. 17. We have to consider the present case in reference to Rule 109 of the Rules of 1996, as was existing at the time of accident. Rule 109 of the Rules of 1996 was substantially amended vide Notification dated 03rd September, 2015 but has no application herein. Rule 109 of the Rules of 1996, existing at the time of accident of petitioner-non-appellant's husband is quoted hereunder for ready reference: “109. Applicability: The rules in this Chapter shall apply to the following categories of Government servants on pensionable establishment whether temporary or permanent :— (1) Police personnel whether in regular or irregular units including R.A.C. upto the rank of Commandant & Superintendent of Police (other than IPS officers) who :— (i) die as a result of encounter with dacoits, (ii) killed while on duty, including Class IV servants followers & other non-combatant staff attached to Police Force, (iii) die as a result of encounter with criminals or in the course of confrontation with mobs or crowds during agitation, riot or disturbances etc. (2) Personnel of Preventive Branch of the Excise Department upto the rank of Excise Officer (Preventive) who are killed or die as a result of injury sustained while undertaking raids.” 18. Learned Additional Advocate General Mr. GS Gill has seriously contested the issue. The perusal of Rule 109 of the Rules of 1996 does not cover the case of accident. The petitioner-non-appellant's husband did not die as a result of encounter with dacoits. It is not even a case of killing while on duty even as per the pleading of the writ petition. 19. If the facts of this case are taken into consideration, it cannot be said to be a case of killing, rather, husband of the petitioner-non-appellant died while on duty. It is by taking facts narrated by the petitioner-non-appellant herself ignoring the facts given by the State Government. The non-appellant cannot be held entitled to special pension benefits even if her husband died while on duty. It can be given only when he would have been killed while on duty. We are, however, required to consider the judgments rendered by the Division Bench of this Court. 20. The non-appellant cannot be held entitled to special pension benefits even if her husband died while on duty. It can be given only when he would have been killed while on duty. We are, however, required to consider the judgments rendered by the Division Bench of this Court. 20. The first judgment given by the Division Bench of this Court was in the case of Savita Yadav (supra). Therein, Rule 268 (1) of the Rules of 1951 was given interpretation. The Rule therein was applicable in the case of killing while on duty as a result of enemy action. The words “as a result of enemy action” were deleted, thereby, what remains is “killed while on duty”. The facts herein do not show death of petitioner-non-appellant's husband out of killing while on duty but he died while on duty. The word “killed” cannot be substituted by the word “die”. It is moreso when challenge to the Rule has not been made. In view of the above, the judgment in the case of Savita Yadav (supra) is of no help to the petitioner-non-appellant. The Rules have been amended from time to time and thereafter, Rule 109 of the Rules of 1996 was brought, which is not as it was Rule 268 (1) of the Rules of 1951. For ready reference, Rule 268 (1) of the Rules of 1951 is also quoted hereunder to show difference between the two provisions: “268. I. Applicability.- This chapter shall apply to the following categories of Government servants on pensionable establishment whether temporary or permanent who are in service on the 5th day of August, 1965 or who enter service on or after that date- (i) Police personnel, whether in Regular or Irregular Units including R.A.C. up to the rank of Commandant and Superintendent of Police (other than IPS Officers) who die as a result of encounter with dacoits. (ii) Police personnel, whether in Regular or Irregular Units including R.A.C. up to the rank of Superintendent of Police (other than I.P.S. Officers) and Class IV servants followers and other non-combatant staff attached to the Police Force, who are killed while on duty as a result of enemy action (including action by paratroopers and infiltrators from Pakistan). (ii) Police personnel, whether in Regular or Irregular Units including R.A.C. up to the rank of Superintendent of Police (other than I.P.S. Officers) and Class IV servants followers and other non-combatant staff attached to the Police Force, who are killed while on duty as a result of enemy action (including action by paratroopers and infiltrators from Pakistan). (iii) Police personnel, whether in regular or irregular units including R.A.C. upto the rank of Commandant and Superintendent of Police (other than I.P.S. Officers) who die as a result of encounter with criminals or in the course of confrontation with mobs of crowds during agitation-riot or civil commotion or communal disturbances etc. 21. In the case of Smt. Paras Kanwar (supra), this Court relied on the judgmer in the case of Savita Yadav (supra). In all the cases, Rule 268 (1) of the Rules of 1951 was considered. We have already clarified that even if the words “as a result of enemy action” are deleted, one would require to show killing while on duty to fall under Rule 268 (1) of the Rules of 1951. 22. The judgment in the case of Smt. Paras Kanwar (supra) in not in reference to Rule 109 of the Rules of 1996 so as to apply herein thus neither judgment in the case of Savita Yadav (supra) nor Smt. Paras Kanwar (supra) can be applied when there is substantial change in the Rule. Rule 109 of the Rules of 1996 has been quoted earlier. 23. The judgment in the case of Smt. Urmila Devi (supra) is again in reference to Rule 268 (1) of the Rules of 1951 thus would not apply to the facts of this case. 24. The last judgment of the Division - Bench is in the case of Mst. Madhu Bala (supra). Therein, reference of Rule 109 (1) (ii) of the Rules of 1996 has been given but it is again after relying on the judgments in the cases of Savita Yadav (supra) and Smt. Paras Kanwar (supra). Learned counsel appearing for the State Government in that case did not refer difference between Rule 109 of the Rules of 1996 and Rule 268 (1) of the Rules of 1951 and, accordingly, finding on it has not been recorded. However, the judgment in the case of Mst. Learned counsel appearing for the State Government in that case did not refer difference between Rule 109 of the Rules of 1996 and Rule 268 (1) of the Rules of 1951 and, accordingly, finding on it has not been recorded. However, the judgment in the case of Mst. Madhu Bala (supra) has been stayed by the Apex Court in Special Leave Petition No. 18575/2017 vide order dated 09th January, 2018. In view of the above, the judgment in the case of Mst. Madhu Bala (supra) cannot be applied at present. Otherwise, we have discussed the issue extensively in reference to Rule 109 of the Rules of 1996. It is a simple case of accident where the non-appellant's husband died thus cannot be said to be a case of killing while on duty so as to bring it under Rule 109 of the Rules of 1996. 25. In view of the above, we find reasons to cause interference in the order passed by learned Single Judge for award of Special Pensionary Award and, to that extent, it is set aside. 26. Learned Additional Advocate General Mr. GS Gill has further informed about a claim case maintained by the petitioner-non-appellant before the Motor Accident Claims Tribunal. We are not going on the aforesaid issue as the petitioner-non-appellant can separately seek compensation out of accident. 27. In view of the discussion made above, interference in the order passed by learned Single Judge is made to the extent indicated above. 28. In the light of the consideration of merit of the case, we have considered the application under Section 5 of the Limitation Act by applying criteria given by the Apex Court in the cases of Chandramani (supra) and N. Balakrishnan (supra). 29. Finding merit in the appeal, we find reasons to accept the application for condonation of delay moreso when there exits explanation and otherwise delay is only of 50 days. Accordingly, the application under Section 5 of the Limitation Act is allowed. The delay in filing appeal is condoned. 30. The appeal is allowed in part. The ex-gratia grant, as directed by this Court, would be given to the petitioner-non-appellant within a period of two months from the date of receipt of copy of this order.