Bombay High Court
Smt. Mangla Devraj Wadji vs Union Of India And Anr on 20 July, 2017
Bench: V.K. Tahilramani
jdk 1 5.cwp.12604.16.j.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12604 OF 2016
Smt. Mangla Devraj Wadji ]
Age 58 years, ]
B/304, Riddhi Vinayak Apartment, ]
Hanuman Nagar, Umelmaan ]
Vasai Road (West) 401202, ]
Dist. Palghar (Mah.) ].. Petitioner
Vs.
1) Union of India, through ]
The Deputy Secretary (Admn.) ]
Office of the Registrar General ]
of India, 2/A, Mansingh Road, ]
New Delhi - 110 011 ]
]
2) Director of Census Operations, ]
Govt. of India, Ministry of Home ]
Affairs, Directorate of Census ]
Operations, Mah. Exchange Bldg. ]
2nd Floor, Sir Shivsagar Ramgulam ]
Marg, Ballard Estate, Mumbai ]
400 001 ].. Respondents
....
Mr. Rajendra Prakash Saxena Advocate for Petitioner
None for Respondents
....
CORAM : SMT.V.K.TAHILRAMANI AND
SANDEEP K. SHINDE, JJ.
DATED : JULY 20, 2017
ORAL JUDGMENT [PER SMT. V.K.TAHILRAMANI, J.]:
1 Heard the learned counsel for the petitioner. Rule.
1 of 6
jdk 2 5.cwp.12604.16.j.doc
Rule made returnable forthwith.
2 The petitioner's husband was appointed as a
temporary Chowkidar on 2.3.1981 in the office of Respondent
no.2 i.e. Director of Census Operations, Government of India,
Ministry of Home Affairs. He came to be terminated on
6.9.2000. He expired on 30.7.2003. Thereafter on 27.4.2009
the petitioner preferred an application for sanction of
compassionate allowance on the ground of penury and
indignant condition. The said application was rejected by reply
dated 29.6.2009. Thereafter, she preferred a fresh application
seeking sanction of compassionate allowance on 11.8.2009.
This was rejected by reply dated 8.10.2009. Being aggrieved
thereby, the petitioner approached the Tribunal with a prayer
that her representation for compassionate allowance be
reconsidered. The said Original Application was disposed of
with direction that her representation be considered by the
authority. Thereafter again she received reply rejecting her
representation by order dated 16.8.2011, hence, she preferred
Original Application. The said Original Application came to be
dismissed, hence, this petition.
2 of 6
jdk 3 5.cwp.12604.16.j.doc
3 To substantiate the claim that the petitioner is entitled
to compassionate allowance, the learned counsel for the
petitioner is relying on Rule 41 of the Central Civil Services
(Pension) Rules, 1972, which reads as under:
"41. Compassionate allowance:
(1) A Government servant who is dismissed or
removed from service shall forfeit his pension and
gratuity:
Provided that the authority competent to
dismiss or remove him from service may, if the case is
deserving of special consideration, sanction a
compassionate allowance not exceeding two - thirds
of pension or gratuity or both which would have been
admissible to him if he had retired on
[compensation pension].
(2) A compassionate allowance sanctioned
under the proviso to sub-rule (1) shall not be less than
the amount of ²[Rupees three hundred and seventy
five] per mensem".
[EMPHASIS SUPPLIED]
4 In the present case there is nothing to show that the
3 of 6
jdk 4 5.cwp.12604.16.j.doc
husband of the petitioner was deserving of any special
consideration, in fact during his period of service, he was
absent for 7 years. Thus no benefit can be given in view of Rule
41.
5 The learned counsel for the petitioner also placed
reliance on a decision of the Supreme Court in the case of
Mahinder Dutta Sharma Vs. Union of India and others
reported in (2014) 11 S.C.C. 684. He placed reliance on
paragraph 14 thereof. In this decision, the parameters to
consider entitlement to grant the benefit of compassionate
allowance were laid down. The Rule itself states that if the case
is deserving of special consideration, then in such case
compassionate allowance can be allowed. In the present case,
it is seen that husband of petitioner was absent for 7 years from
duty. The record shows that the appointment of the husband of
the petitioner was not as a permanent Government servant.
Hence, Rule 41 of the C.C.S. (Pension) Rules is not applicable in
this case. His services were terminated under Rule 5 of C.C.S.
(Temporary Service) Rules. Rule 5 enables Government to
dispense with the services of the temporary employees. In such
4 of 6
jdk 5 5.cwp.12604.16.j.doc
cases, the Government is not liable for payment of any
allowance or family pension. Even in cases of permanent
Government employee to whom the C.C.S. (Pension) Rules,
1972 are applicable, grant of compassionate allowance in the
case of dismissal or removal from service is not mandatory.
The provision made under Rule 41 of C.C.S. (Pension) Rules is
for cases deserving special consideration. The petitioner's
husband was neither covered under the said Rule nor did he
deserve any special consideration given his unauthorized
absence for 7 years leading to his termination from service
under Rule 5 of C.C.S. (Temporary Service) Rules.
6 Moreover, the husband of the petitioner died on
30.7.2003 i.e. after about 3 years of his termination under
C.C.S. (Temporary Service) Rules. After about nine years of his
termination and six years of his demise, the petitioner who is
his widow, vide representation dated 27.4.2009 claimed
compassionate allowance to the deceased employee under Rule
41 of C.C.S. (Pension) Rules and also family pension to herself.
It is pertinent to note that the husband of the petitioner expired
on 30.7.2003 i.e. about 3 years after his termination, however,
5 of 6
jdk 6 5.cwp.12604.16.j.doc
during his lifetime, he did not prefer any application /
representation seeking compassionate allowance. The
petitioner after inordinate delay of nine years after termination
of her husband preferred the application seeking
compassionate allowance. Even otherwise, it is clear that
petitioner's husband is not entitled for any compassionate
allowance or any pension or any such relief. The Tribunal has
taken all these facts into consideration and thereafter dismissed
the Original Application.
7 Looking to the facts on record, we do not find any
error in the order of the Tribunal, hence, writ petition is
dismissed. Rule is discharged.
[ SANDEEP K.SHINDE J.] [ SMT.V.K.TAHILRAMANI, J. ]
kandarkar
6 of 6
