High Court dismissed a writ petition challenging the denial of compassionate allowance to the wife of a deceased government servant, holding that Rule 40 requires forfeiture of pension which mandates a minimum qualifying service of 10 years under Rule 45.
Writ petition and connected miscellaneous petition dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY WRIT PETITION No.11669 OF 2012
ORDER: (per Hon’ble Sri Justice G.Krishna Mohan Reddy)
This writ petition is filed assailing the order passed in O.A.No.5276 of 2010 dated 14.12.2011 on the file of A.P. Administrative Tribunal, Hyderabad (‘Tribunal’ for brevity) as illegal, arbitrary and in violation of relevant rules and to set aside the order and also to direct the respondents 1 to 3 to reconsider the petitioner’s plea to sanction compassionate allowance to the petitioner in terms of Rule 40 of A.P. Revised Pension Rules, 1980 (for short, ‘the Rules’) with effect from 25.2.1985.
According to the petitioner, her husband K.Samuel(deceased) worked as Junior Assistant in the office of Commercial Tax Officer, Ranigunj Circle under the control of third respondent having been appointed on compassionate grounds on 15.9.1980. He died on 18.3.2007 while he was in service leaving behind him herself and four children. She applied for compassionate appointment vide application dated 19.12.2008 on the ground that following the death of the deceased on whom she and her children were depending for their livelihood they fell into distress, but the same was rejected summarily. According to her, as on 23.12.2008 the respondents informed her that her husband was removed from the service for unauthorized absence of his duties with effect from 25.2.1985, by which only she came to know about it. Thereby she filed O.A.No.1904 of 1997 before the Tribunal against the order of rejection made by the third respondent, which was dismissed on 4.3.1998. However, later she filed another application before the respondents 1 and 2 on 21.8.2009 requesting them to grant atleast
compassionate allowance under Rule 40 of the Rules together with interest and other monetary benefits with effect from 25.2.1985, which was also dismissed, against which, she filed O.A.No.532 of 2006 before the Tribunal with reference to the circumstances narrated.
The third respondent filed counter affidavit resisting the claim of the petitioner. According to him, the petition was filed beyond the period of limitation prescribed in that behalf. The impugned order was rightly passed taking into consideration the conduct of the deceased which led to his dismissal from his service. On the consideration of the relevant factors, the Tribunal dismissed the application on the ground that the deceased was in service only for 4 ½ (four and half) years and in the departmental enquiry, a finding was given that he had no interest in Government service.
The learned counsel for the petitioner would contend that the Tribunal failed to consider the purport of Rule 40 of the Rules which is relevant here. The Tribunal could have used its discretion in giving necessary relief under that provision. In fact by virtue of Article 309 of the Constitution of India, the petitioner being the wife of the deceased is eligible for sanction of compassionate allowance from the date of removal of her husband from service, in the circumstances of the case. He mainly stresses that unless the relief prayed is granted, she and her children who are in distress condition will suffer further eventually.
Therefore, it has to be seen as to whether there are grounds to grant compassionate allowance to the petitioner and whether the order passed by the Tribunal is proper or liable to be set aside.
In order to grant compassionate allowance as prayed for, the same should be forfeited by relevant provision. Significantly, the deceased was in the said service only for 4 ½ years. In fact, Rule 40 of the Rules, enjoins that a Government Servant who is dismissed
from service shall forfeit his pension or gratuity, provided that the authority competent to do so in deserving cases can sanction compassionate allowance not exceeding two thirds of pension or gratuity or both which would have been admissible to him, if he had retired on invalid pension. A discretion is given to the concerned authority under this rule to make necessary provision which cannot be interfered with ordinarily. In fact, this provision is subject to Rule 45 of the Rules which was not considered by the Tribunal. It appears, Rule 45 was not brought to the notice of the Tribunal for necessary consideration.
Rule 45 of the Rules deals with the question of payment of gratuity and pension to a retired Government Servant. Sub-rule (1) therein deals with the question of payment of gratuity on completing qualifying service of 10 years. Similarly, sub-section (2) enjoins that in order to claim pension, a retired Government Servant should have completed qualifying Service of not less than 10 years. Therefore, there is a statutory embargo in order to make any claim for pension following the death of the deceased. Unless this qualification is satisfied, the question of applying Rule 40 does not arise at all. The contentions of the petitioner are therefore not tenable. Virtually, we do not find any reason to interfere with the findings of the Tribunal. The writ petition is devoid of merits. It is liable to be dismissed.
Accordingly, the writ petition as also W.P.M.P are dismissed. No order as to costs.
_______________ (V.V.S.RAO, J)
(G.KRISHNA MOHAN REDDY, J)
25.4.2012. DA
THE HON’BLE SRI JUSTICE V.V.S.RAO AND
THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY
Writ Petition No.11669 of 2012 Date: 25.04.2012
Smt.K.Vijaya Kumari
…Petitioner
and State of A.P, rep. by its Principal Secretary, Revenue Department (Commercial Tax), Hyderabad & others.
…Respondents
THE HON’BLE SRI JUSTICE V.V.S.RAO AND
THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY
WRIT PETITION No.11669 OF 2012
25th April, 2012
DA
2 issues framed by the court
Whether compassionate allowance can be sanctioned under Rule 40 when the deceased fulfilled less than 10 years of qualifying service.
Whether the Tribunal erred in dismissing the application for compassionate allowance given the short tenure of the deceased servant.
3 provisions across 2 enactments
Smt. K. Vijaya Kumari
State of A.P
V.V.S. Rao
G. Krishna Mohan Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
