Rajasthan High Court - Jodhpur
Smt. Savitri Devi & Anr vs District & Session Judge, Hanumangarh on 3 July, 2013
Author: P.K. Lohra
Bench: P.K. Lohra
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IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
ORDER
S.B. Civil Writ Petition No.7121/2010 Smt. Savitri Devi & Anr. V/s. District & Session Judge, Hanumangarh Date of Order ::: 03.07.2013 PRESENT HON'BLE Mr. JUSTICE P.K. LOHRA Mr. Himanshu Shrimali for the petitioners. Mr. Mahendra Choudahry for the respondent.
A sordid tale of the petitioners as depicted in the writ petition is that the sole bread winner of the family, Mr. Ramesh Singh, who is the husband of the first petitioner and father of the second petitioner, suddenly disappeared from this earth on fateful day of 17th November, 2000 leaving the entire family consisting of four persons including the petitioners in lurch. The petitioners, other family members, relatives, friends and the well-wishers made all sincere efforts to search Mr. Ramesh Singh but all these efforts proved abortive. In their attempt to search Mr. Ramesh Singh, the first petitioner lodged a report of his 2 missing with SHO, Police Station Mundawar, Alwar on 18th April, 2001. Yet, again the petitioners made sincere endeavour to search Mr. Ramesh Singh by publishing a news-item in daily local newspaper dated 25.04.2001, 27.04.2001 and 11.05.2001 respectively. However, all attempts made by the police authorities and the petitioners were in vain. After waiting for a long duration, the petitioners and other family members were totally disheartened and there remained no clue about survival of Mr. Ramesh Singh. In the interregnum period, certain developments took place and the District and Sessions Judge, Hanumangarh, where the petitioner was serving as class-IV employee issued a charge-sheet under Section 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for brevity hereinafter referred to as the 'Rules of 1958') for his wilful absence from duties. Although the said charge-sheet was never served upon Mr. Ramesh Singh, as he was not traceable, the respondent proceeded to dismiss him from services vide order dated 20th of March, 2001 (Annex.7) without holding a regular enquiry envisaged under Rule 16 of the Rules of 1958.
In the writ petition, the petitioners have also averred that after waiting for a considerable period, they approached the respondent to allow family pension and 3 other retiral benefits to the first petitioner and to offer appointment on compassionate grounds to second petitioner, however, their said requests were not acceded to by the respondent and the respondent asked them to produce certificate of civil death of Shri Ramesh Singh from a competent court. As per the averments made in the writ petition, the petitioners were left with no option but to wait for seven long years for initiating the proceedings for seeking declaration from the competent court about civil death of Shri Ramesh Singh and ultimately a civil suit at the behest of both the petitioners and two other legal heirs of Shri Ramesh Singh was laid before the learned Civil Judge (Junior Division) Mundawar, Alwar for seeking declaration about the civil death of Shri Ramesh Singh. The civil suit for declaration launched at the behest of the petitioners and other legal heirs of Shri Ramesh Singh was decreed by the civil court, vide its judgment and decree dated 23rd January, 2009, and the learned Civil Court finally declared the civil death of Shri Ramesh Singh. After passing of the decree by the civil court, as per the version of the petitioners, yet again the respondent was called upon to grant retiral benefits to the first petitioner and to offer appointment on compassionate grounds to the second petitioner, but this time the respondent came out with yet another objection that for claiming retiral benefits, succession certificate is 4 pre-requisite and they are required to obtain succession certificate from the competent court. Acceding to the oral direction of the respondent, according to the petitioners, an attempt was made at their behest for obtaining succession certificate and a petition under Section 372 of the Indian Succession Act, 1925 (for short, 'the Act of 1925') was laid before the Additional District Judge Kishangarhbas. During the pendency of the petition for issuance of succession certificate, as per the petitioners, the entire family of Shri Ramesh Singh faced great financial hardship and it became very difficult for the family to survive. It was in such compelling situations, according to the petitioners, the concerned Sarpanch of the Gram Panchayat was approached and on persuasion, a succession certificate was issued by him on 17.05.2008. To mitigate the financial hardship of the family, as per the second petitioner, he has again approached the respondent for offering him appointment on compassionate grounds, vide his application dated 9th April, 2010, and alongwith the said application, said succession certificate was also enclosed. The application dated 9th April, 2010 was rejected by the respondent on the ground that in the civil suit ex-parte decree was passed and the respondent-employer was not impleaded as party and an order to this effect was passed by the respondent on 15th April, 2010 (Annex.13). Besides 5 incorporating the aforementioned grounds for rejection, the respondent has also declined the prayer of the second petitioner for the reason that the application for seeking appointment on compassionate grounds was submitted belatedly i.e. after expiry of 90 days.
The petitioners, in the writ petition, have also stated that the second petitioner made endeavour to obtain certain informations from the respondent under Right to Information Act by his application dated 15.04.2010 and with his application, the requisite fee was also enclosed but the application was rejected by the respondent solely on the technical ground that it was not in the prescribed proforma. According to the petitioners, the second petitioner again approached the respondent for obtaining requisite information under Right to Information Act by sending his application through registered post with the requisite formalities on 9th June, 2010. With all these averments, the petitioners have prayed for annulment of order dated 15th April, 2010 and the order dated 22nd March, 2001 and has also sought a direction against the respondent to allow the first petitioner pension and other retiral benefits and consider the application of the second petitioner for appointment on compassionate grounds.
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In return, the respondent has alleged that Shri Ramesh Singh was a class-IV employee who proceeded on leave on 4th October, 2000 afternoon with permission to leave headquarter but thereafter he never returned back, and therefore, considering his wilful absence from duty, a charge-sheet under Rule 16 of the Rules of 1958 was issued and the same was sent at his residential address by a registered post but the said envelope returned back with refusal remark. In these circumstances, the charge-sheet was published in the newspaper (Rajasthan Patrika) on 2nd February, 2000. According to the version of the respondent in the reply, even after publishing of the charge-sheet in the newspaper, there was no response from Shri Ramesh Singh, and therefore, the respondent concluded the disciplinary inquiry and dismissed him from service vide order Annex.7. While persisting with its stand which was taken in Annex.13, the respondent has urged in the reply that decree about civil death of Shri Ramesh Singh was obtained by the petitioners ex-parte and in the said proceedings, respondent was not impleaded as party, therefore, the action of the respondent in declining the prayers of the petitioners cannot be faulted. Adverting to the insistence for succession certificate from a competent civil court, the respondent has averred in the reply that as the application for issuance of succession certificate is still pending, no 7 indulgence can be granted to the petitioners. The objection of delay in submission of the application form seeking appointment on compassionate grounds as mentioned in the order (Annex.13) was also substantiated as ground in the reply for denial of appointment on compassionate grounds to the second petitioner.
Mr. Himanshu Shrimali, the learned counsel for the petitioners, would urge that the order dated 22.03.2001 (Annex.7) has been passed without following the due procedure as envisaged under Rule 16 of the Rules of 1958, and therefore, the said order is non-est in the eye of law. According to the learned counsel for the petitioners for proving allegation of wilful absence from the duty of its employee, Shri Ramesh Singh, the respondent has not conducted regular enquiry. The submission of the learned counsel for the petitioners is that in view of factual scenario in the instant case the allegation of wilful absence of the delinquent employee is totally farce inasmuch as the employee has not remained absent from his duty wilfully but for the reasons which were beyond his/anyone's comprehension. Mr. Shrimali further contends that considering the subsequent events and passing of decree about civil death of Shri Ramesh Singh by a competent court, the order (Annex.7) has lost its scantily and 8 significance for all practical purposes. Thus, the substance of the contention of the learned counsel for the petitioners is that the said order cannot be cited as an impediment for granting reliefs to the petitioners as prayed for in the writ petition.
Learned counsel for the petitioners has strenuously argued that there is umpteen material available on the record to show that Shri Ramesh Singh has disappeared from this earth on 17th November, 2000 and since then his whereabouts are not known to anyone. According to the learned counsel, in these situations, keeping in view more than two decades' services of Shri Ramesh Singh, the first petitioner, who is wife of the employee, ought to have been allowed family pension and other retiral benefits. He further submits that on the strength of the decree passed by a competent civil court, the respondent was under an obligation to consider the application of the second petitioner for appointment on compassionate grounds. The submission of the learned counsel for the petitioners is that the reasons spelt out for declining the prayers of the petitioners in the order (Annex.13) are non-est in the eye of law inasmuch as no delay can be attributed to the second petitioner and further more in the facts and circumstances of the case denial of 9 retiral benefits to the first petitioner cannot be sustained. Learned counsel for the petitioner would urge that impugned order of dismissal is not sustainable against an individual, who is presumed to have died by virtue of Section 108 of the Indian Evidence Act, 1872 (for brevity hereinafter referred to as the 'Act of 1872'), and therefore, the said order is liable to be annulled and the writ petition deserves acceptance.
Joining the issue with the respondent, learned counsel for the petitioners has contended that demanding of succession certificate for family pension is highly unjust and improper. The submission of the learned counsel for the petitioners is that claim of family pension is a statutory right and the said benefit is available to widow/mother and legal heirs of the deceased as per Rajasthan Civil Services Pension Rules, 1996, (for brevity hereinafter referred to as 'the Rules of 1996'). Thus, according to the learned counsel for the petitioners, family pension does not fall within the ambit of debt and security of the deceased employee, and therefore, no succession certificate for family pension can be issued. With these submissions, learned counsel for the petitioners has urged that denial of family pension to the first petitioner in the peculiar facts and circumstances of the case is a very harsh decision of the respondent, which 10 cannot be sustained by this Court.
Per contra, learned counsel for the respondent, Mr. Mahendra Choudhary, has stoutly defended the impugned order (Annex.13) and has argued that the second petitioner is not entitled for appointment on compassionate grounds. Mr. Choudhary has also argued that Shri Ramesh Singh was dismissed from service for his serious omissions of wilful absence from the duty, and therefore, no family pension or retiral benefits can be granted to the first petitioner. The learned counsel for the respondent would urge that the order of dismissal (Annex.7) is just order and the same is not liable to be interfered with. As per the learned counsel for the respondent, when the delinquent employee has not submitted reply to the charge-sheet and has further not appeared in the enquiry proceedings, there remained no doubt about his delinquency and as such the order of dismissal does not suffer from the vice of any legal infirmity.
Heard learned counsel for the parties and perused the materials on record.
Facts of the instant case are glaring. There is no quarrel in the factual position that Shri Ramesh Singh last 11 attended his duties as Class-IV employee in the office of respondent on 4th October, 2000. On the same day, Mr. Ramesh Singh sought leave with permission to leave headquarter which was duly granted to him by the competent authority. After availing the leave for joining his duties on 17th November, 2000 Mr. Ramesh Singh left his home but thereafter neither he has reported on his duties, nor returned back to his home. Therefore, from 17th November, 2000 whereabouts of Shri Ramesh Singh are not known. The family members and the police officers have made all endeavour to trace him out but their every action has proved to be futile. The disappearance of Shri Ramesh Singh for seven long years is sufficient to conclude that he no more survives and the competent civil court has also passed a decree to this effect. The presumption about death of an individual who has not been heard of for seven years is clearly envisaged under Section 108 of the Act of 1872. The complete text of Section 108 is reproduced as infra :-
108. Burden of proving that person is alive who has not been heard of for seven years. - Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.12
The presumption of civil death or fictional death under Section 108 of the Act of 1872 tantamounts to physical death in the eye of law is clearly envisaged in the aforementioned section. Besides the presumption in the instant case a decree of civil court is also there on the strength of which there remained no room of doubt that Shri Ramesh Singh is still alive. Thus, in my considered opinion, disputing this fact situation by the respondent solely on the ground that decree about civil death of Shri Ramesh Singh was passed ex-parte cannot be sustained. I am afraid this sort of contention at the behest of respondent without disputing the chronological events cannot dispel the statutory presumption about fictional death of Shri Ramesh Singh within the four corners of Section 108 of the Act of 1872.
Coming to the order of dismissal passed against Shri Ramesh Singh, at the very outset, in my considered opinion, the said order cannot be sustained because the same has been issued against an individual, who is presumed to have died. In the backdrop of the facts of the instant case, it is very difficult to presume that the incumbent was wilfully absent from the duty. One more redeeming fact is that there is a patent error in the order of dismissal inasmuch as presumption about wilful absence of 13 the incumbent-employee is not based on cogent and convincing reasons. The respondent has simply assumed the wilful absence of the delinquent employee from the duty due to his so-called omission to counter the charges and to defend himself in the enquiry. A glance at the impugned order of dismissal makes it clear that no full-fledged enquiry as envisaged under Rule 16 of the Rules of 1958 was conducted against the delinquent employee to prove the charges of wilful absence from the duty. It is a trite law that enquiry under Rule 16 of the Rules of 1958 is not an empty formality and while conducting such an enquiry principles of natural justice are required to be followed strictly. The procedure provided under Rule 16 is mandatory and cannot be given go-bye. If the impugned order is examined on the touchstone of Rule 16(4) of the Rules of 1958 then it will, ipso facto, reveal that the mandatory procedure under the said Rule has not been followed and the finding of guilt about the delinquency has been recorded on the basis of mere ipse dixit of the disciplinary authority due to absence of delinquent employee. If the charge against the delinquent employee is wilful absence from the duty and he is sought to be visited with the extreme penalty of dismissal, principles of equity, justice and fairness demands that regular enquiry for imposition of major penalty is to be conducted in strict adherence of Rule 16 of the Rules of 14 1958. It is also necessary that the disciplinary authority should afford reasonable opportunity of being heard to the delinquent before imposition of penalty. In the background of facts and circumstances of the instant case such a punishment is per se bad in law. In want of proper enquiry, in my view, the order of dismissal (Annex.7) cannot be sustained as the same has been passed in gross violation of principles of "audi alterm partem". My this view is fully fortified from a Constitution Bench judgment of Apex court in the case of Jai Shanker V/s. State of Rajasthan [AIR 1996 (SC) 492]. The Apex Court while considering this aspect of the matter has made following observations in para 6 of the said verdict :-
6. It is admitted on behalf of the State Government that discharge from service of an incumbent by way of punishment amounts to removal from service. It is, however, contended that under the Regulation all that Government does, is not to allow the person to be reinstated.
Government does not order his removal because the incumbent himself gives up the employment. We do not think that the constitutional protection can be taken away in this manner by a side wind.
While, on the one hand, there is no compulsion on the part of the Government to retain a person in service if he is unfit and deserves dismissal or removal, on the other, a person is entitled to continue in service if he wants until his service is terminated in accordance with law. One circumstance deserving removal may be over-staying one's leave. This is a fault 15 which may entitle Government in a suitable case to consider a man as unfit to continue in service. But even if a regulation is made, it is necessary that Government should give the person an opportunity of showing cause why he should not be removed. During the hearing of this case we questioned the Advocate General what would happen if a person owing to reasons wholly beyond his control or for which he was in no way responsible or blameable, was unable to return to duty for over a month, and if later on he wished to join as soon as the said reasons disappeared? Would in such a case Government remove him without any hearing, relying on the regulation ?
The learned Advocate General said that the question would not be one of removal but of reinstatement and Government might reinstate him. We cannot accept this as a sufficient answer. The Regulation, no doubt, speaks of reinstatement but it really comes to this that a person would not be reinstated if he is ordered to be discharged or removed from service. The question of reinstatement can only be considered if it is first considered whether the person should be removed or discharged from service. Whichever way one looks at the matter, the order of the Government involves a termination of the service when the incumbent is willing to serve. The Regulation involves a punishment for overstaying, one's leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. It is true that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by over-staying his leave, but we do not think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing causes why he should not be removed. If this is done the incumbent will be entitled to move against 16 the punishment for, if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an appropriate authority, that the removal is automatic and outside the protection of Art. 311. A removal is removal and if it is punishment for over-
staying one's Leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it. To give no opportunity is to go against Art. 311 and this is what has happened here.
Now switching to the relief of family pension, the Court feels it imperative to examine the relevant Rules governing the said province.
Chapter V(c) of the Rules of 1996 deals with family pension. Rule 66 of the Rules of 1996 defines the word 'family'. Under Rule 67 of the Rules of 1996, conditions for grant of family pension are postulated which reads as under :-
67. Condition of grant The family pension shall be admissible to -
(a) a widow/widower, up to the date of death or remarriage, whichever is earlier;
(b) unmarried son till he attains the age of twenty five years or on earning a monthly income exceeding Rs.2550/-;17
(c) daughter including widowed/divorced daughter till she attains the age of 25 years or on earning a monthly income exceeding Rs.2550/- per month or upto the date of her marriage/remarriage, whichever is earlier;
(d) parents who were wholly dependent upon the Government servant when he/she was alive provided the deceased employee had left behind neither a widow nor a child and the income of parent is not more than Rs.2550/-.
Provided that if the son or daughter of a Government servant is suffering from any disorder or disability of mind or is physically crippled or disabled so as to render him or her unable to earn a living even after attaining the age of twenty five years, the family pension shall be payable to such son or daughter for life, subject to the following conditions, namely, -
(i) If there are more than one such children suffering from disorder or disability of mind or who are physically crippled or disabled, the family pension shall be paid in the order of their birth and the younger of them will get the family pension only after the elder next above him/her ceases to be eligible;
(ii) before allowing the family pension for life to any such son or daughter, the sanctioning authority shall satisfy that the handicap is of such a nature so as to prevent him or her from earning livelihood evidenced by a certificate obtained from a medical officer not below the rank of Chief Medical & Health Officer/Medical Jurist setting out, as far as possible, the exact mental or physical incapacity; and
(iii) the person receiving the family pension as natural/legal guardian of such son or daughter or such son or daughter not receiving the family pension through the guardian, shall produce every three 18 years a certificate from a medical officer not below the rank of Chief Medical & Health Officer/Medical Jurist to the effect that he or she continues to suffer from disorder or disability of mind or continues to be physically crippled or disabled.
From a bare perusal of Rules 66 and 67 of the Rules of 1996, it is amply clear that this benefit is available to the family members of the deceased employee by virtue of statutory provisions and the same, therefore, cannot be construed as property of the deceased-employee so as to bring it within the ambit of word 'security' within the four corners of sub-section (2) of Section 370 of the Indian Succession Act, 1925, (for brevity hereinafter referred to as the 'Act of 1925'). The complete text of sub-section (2) of Section 370 of the Act of 1925 is reproduced infra :-
370. Restriction on grant of certificates under this Part. - (1) A succession certificate (hereinafter in this Part referred to as a certificate) shall not be granted under this Part with respect to any debt or security to which a right is required by section 212 or section 213 to be established by letters of administration or probate:
Provided that nothing contained in this section shall be deemed to prevent the grant of a certificate to any person claiming to be entitled to the effects of a deceased Indian Christian, or to any part thereof, with respect to any debt or security, by reason that a right thereto can be established by letters of administration under this Act.19
(2) For the purposes of this Part, "security" means -
(a) any promissory note, debenture, stock or other security of the Central Government or of a State Government;
(b) any bond, debenture, or annuity charged by Act of Parliament [of the United Kingdom] on the revenues of India;
(c) any stock or debenture of, or share in, a company or other incorporated institution;
(d) any debenture or other security for money issued by, or on behalf of, a local authority;
(e) any other security which the [State Government] may, by notification in the Official Gazette, declare to be a security for the purposes of this Part.
Therefore, in this view of the matter, insistence of succession certificate for grant of family pension to the first petitioner by the respondent cannot be sustained.
Besetting the order of dismissal of Shri Ramesh Singh has cleared the decks for the second petitioner for consideration of his application for compassionate appointment but for the order dated 15th April, 2010 (Annex.13). In this view of the matter, the order (Annex.13) requires examination on the touchstone of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 (for brevity, 20 hereinafter referred to as 'the Compassionate Appointment Rules, 1996'). Sub-rule (3) of Rule 10 of the Compassionate Appointment Rules, 1996 clearly envisages that the application for seeking appointment on compassionate grounds is required to be made in the prescribed proforma within 90 days from the date of death of Govt. servant. Power of relaxation is provided in proviso to sub-rule (3) of Rule 10 of the said rules in exceptional cases. The complete text of sub-rule (3) of Rule 10 of the Compassionate Appointment Rules, 1996 is reproduced as infra :-
(3) Such application shall be made to the Head of the Office/Department in the Performa attached as Annexure-A to these rules, within a period of 90 days from the date of death of the Government servant.
The applicant shall submit an affidavit in support of monthly income (from all sources) of all the family members mentioned in Column No.7 of part-I of the application :
Provided that in an exceptional case where the state Government in the Department of Personnel is satisfied that the operation of provisions of this sub-rule causes financial hardship to the family of the deceased Government servant and considers it necessary or expedient to relax the provisions of this sub-rule in a particular case, it may relax the provision of this sub-rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner.21
The core question that requires judicial scrutiny is the crucial date to reckon 90 days from the death of the Govt. servant in the instant case. Admittedly, in the instant matter, it is not a case of normal death of the Govt. servant but civil death of a Govt. servant for tha reason that he has not been heard of for seven years. After expiry of seven years, when the fictional death of Shri Ramesh Singh was not taken note of by the respondent, the petitioners have launched the civil litigation seeking declaration about his civil death and judgment and decree to this effect was passed by the competent civil court on 23rd January, 2009 (Annex.8). In compliance of the same, the concerned Gram Panchayat while issuing death certificate (Annex.10) on 8th June, 2009 has mentioned the date of death of Shri Ramesh Singh as 23rd January, 2009. Therefore, in the considered opinion of this Court, limitation of 90 days prescribed under sub-rule (3) of Rule 10 of the Compassionate Appointment Rules, 1996 has recokened from 8th June, 2009.
From the averments contained in para 9 of the writ petition, it is crystal clear that after obtaining the decree from Civil Court, the petitioners immediately approached the respondent for claiming the required reliefs , but the respondent has not accepted their application and asked them orally to produce succession 22 certificate. These averments of para 9 have not been controverted by the respondent in its reply. In fact, while replying to the said averments, the respondent has pleaded that the averments contained in para 9 of the writ petition need no reply from the answering respondent. Thus, there appears to be no reason to presume that the application of the second petitioner for seeking appointment on compassionate grounds was delayed. Subsequently, the second petitioner has filed an application in prescribed proforma on 9th April, 2010 (Annex.12) which is apparently in continuation of his endeavour, which he has made earlier for seeking appointment on compassionate grounds immediately after passing of the decree by the civil court. Considering the peculiar facts and circumstances of the case, the reasons assigned in Annex.13 by the respondent that the competent civil court has passed ex-parte decree about fictional death of Shri Ramesh Singh and delay in filing of the application on compassionate grounds are wholly untenable. Moreover, the order Annex.13 has been passed in an absolutely casual and cavalier manner because the respondent has simply concurred with the report of the senior clerk. Viewed from any angle, in these circumstances, the order (Annex.13) is laconic and the same cannot be sustained and is liable to be quashed and set aside.23
Quashing of order (Annex.13) has its obvious effect and the application of the second petitioner for appointment on compassionate grounds, therefore, obviously requires consideration afresh.
A Division Bench of this Court in the case of State of Rajasthan & Ors. V/s. Phooli Devi & Ors [2003 (1) WLC (Raj.) 479] while considering the afflictions of a widow and a son of an employee while presuming his civil death under Section 108 of the Act of 1872 upheld the verdict of the learned Single Judge whereby reliefs were granted to the widow and son of the employee with following observations in the operative portion of the judgment :-
Once the decks are clear that admittedly Nanagram Meena was not heard of at all for more than seven years from the date of his disappearance or missing (3.4.1986), in support of which there is an uncontroverted pleadings of the writ petitions duly supported by an affidavit to the effect that she has not heard of her husband (Nanagram Meena) since 3.4.86 and for last more than seven years, a presumption would must arise in her favour by virtue of Section 108 of the Evidence Act that her husband has been dead. Thus viewed, the appellant State therefore have to grant relief to the writ petitioners on the presumption that her husband is dead and she is a widow of deceased government servant entitling to grant of relief as sought for in their writ 24 petition. Having scanned the impugned judgment of the learned Single Judge assailed before us, we find no infirmity whatsoever in the said judgment and the learned Single Judge was justified in allowing the writ petition and in granting relief in favour of the writ petitioners as detailed above, which does not warrant any interference by this Court. In the said view of the matter, this appeal is dismissed. No costs.
The aforementioned verdict of the Division Bench clearly clinches the issues in favour of the petitioners and the writ petition, therefore, deserves acceptance.
The upshot of the above discussion is that the writ petition of the petitioners is allowed and the impugned orders dated 22.03.2001 (Annex.7) and order dated 15.04.2010 (Annex.13) are quashed and set aside and the respondent is directed to forward the family pension case of the first petitioner to the competent authority by treating fictional death of Shri Ramesh Singh w.e.f. 17th November, 2007 and the competent authority i.e., Pension Department is expected to process the papers for grant of family pension with utmost expediency for release of family pension to the first petitioner. The respondent must ensure that the arrears of family pension w.e.f. 17th November, 2007 be paid to the first petitioner. This entire exercise is to be completed within three months from the date of 25 production of certified copy of this order. The respondent is also directed to release other retiral benefits to the first petitioner within the said stipulated period. A further direction is also issued to the respondent to consider afresh the application of the second petitioner for grant of appointment on compassionate grounds strictly in accordance with Rules of 1996 within three months from the date of production of this order, and if he is found suitable, necessary orders in this behalf be issued forthwith.
While considering the application of the second petitioner, the respondent shall take into account the exceptional circumstances of the instant case sympathetically with objectivity for extending the benefit of proviso to sub-rule (3) of Rule 10 of the Compassionate Appointment Rules, 1996, if occasion so arises.
In the facts and circumstances of the case, the parties are left to bear their own costs.
(P.K. LOHRA), J.
a.asopa/-