Gujarat High Court
Ansuyaba @ Aasaba Wd/O Dilipsinh Jadeja ... vs The Chief Secretary on 15 March, 2018
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/21152/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 21152 of 2016
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ANSUYABA @ AASABA WD/O DILIPSINH JADEJA D/O
GANUBHA MANGALSINH GOHIL
Versus
THE CHIEF SECRETARY
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Appearance:
MR NIRAL R MEHTA(3001) for the PETITIONER(s) No. 1
MR. JAYNEEL S PARIKH(7062) for the PETITIONER(s) No. 1
DR VENUGOPAL PATEL, AGP for the RESPONDENT(s) No. 1
DS AFF.NOT FILED (N)(11) for the RESPONDENT(s) No. 2,3
GOVERNMENT PLEADER(1) for the RESPONDENT(s) No. 1,2,3
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2,3
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 15/03/2018
ORAL ORDER
1. Heard Mr. Jaineel Parikh, learned advocate for the petitioner and Dr. Venugopal Patel, learned AGP for the respondents.
2. By way of this petition under Article 226 of the Constitution, the petitioner has prayed for the following reliefs "(A) That this Hon'ble Court, be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the order dated 27.07.2016, annexed at Annexure H, and be pleased to direct the Respondent to grant compassionate Pension to the petitioner from 03.01.2014 and further be pleased to direct the respondent to pay the arrears from 03.01.2014 with an interest at the Page 1 of 12 C/SCA/21152/2016 ORDER rate of 9%.
(B) Pending admission to final disposal of the petition, Hon'ble Court be pleased to grant ad interim relief in tmers directing the respondent to grant provisional compassionate pension to the Petitioner..
(C) That this Hon'ble Court be pleased to pass such other and further orders as may be deemed fit in the facts and circumstances of the case."
3. The following facts can be culled out from the record of the petition 3.1 It is claimed by the petitioner that her husband late Shri Dilipsinh Navalsinh Jadeja was working as Armed Police Constable in SRP, Gujarat State. As averred in the petition, he was appointed on 23.01.1987 and was made to compulsorily retire on 05.02.2008. The record indicates that the petitioner separated with her husband since 15 years as averred in para 4 of the petition and the petitioner had in fact, filed an application for maintenance as provided under section 125 of the CPC before the competent Court at Bhavnagar and 5th Judicial Magistrate, Bhavnagar by an order dated 27.02.2004 was pleased to grant maintenance of Rs.900/ for the petitioner and Rs. 600/ for her son. It is the say of the petition that she has no other source of income and as her husband has expired on 03.01.2014, she prayed for compassionate pension.
Page 2 of 12 C/SCA/21152/2016 ORDER3.2 The record further indicates that the petitioner filed a detailed representation dated 22.01.2015 and as the same was not considered, the petitioner approached this Court by way of filing SCA No.10352/15, which came to be disposed of by this Court (Coram : J.B. Pardiwala, J.) vide order 01.07.2015 on a statement being made by learned AGP to the effect that the representation will be considered expeditiously in accordance with law and that the outcome of the representation will be informed to the petitioner in writing and accordingly, this Court directed the authority to decide the representation within a period of four weeks from the date of the said order.
3.3 The record indicates that the said representation was considered by the authorities which culminated into order of rejection dated 04.09.2015, which is forming part of the record of this petition.
3.4 The record further indicates that thereafter the petitioner again filed an application dated 25.09.2015 for reconsideration and clarifying certain facts before the authorities. Thereafter, the petitioner again approached this Court by way of filing Special Civil Application No. 3958/16, which was disposed of by this Court (Coram : J.B. Pardiwala, J.) vide order dated 14.03.2016 Page 3 of 12 C/SCA/21152/2016 ORDER directing the authorities to consider the application dated 10.12.2015 filed by the petitioner. It deserves to be noted that in para 8, the petitioner has mentioned that by order dated 14.03.2016, this Court was pleased to quash the respondents order dated 04.09.2015 and was further pleased to direct the respondent to reconsider the application of the petitioner dated 10.12.2015. However, it is a matter of record that no such order is passed, except the order referred to above wherein this Court has observed thus "3. It appears that pursuant to the directions issued by this Court referred to above, the Government took the decision, and by an order dated 4th September, 2015 rejected the claim of the petitioner for compassionate pension. In all, five grounds have been assigned. (i) the husband of the petitioner was removed from the service by way of compulsory retirement as he was found to have been involved in a prohibition offence. The husband died in 2014; (ii) after the demise of the husband in 2014, the petitioner prayed for compassionate pension; (iii) the petitioner holds movable and immovable properties;
(iv) After the marriage, the petitioner separated from her husband and started residing independently. She was receiving maintenance from her late husband; (v) no case is made out for grant of compassionate pension in terms of Rules 77, 78 and 79 of the Gujarat Civil Services (Pension) Rules, 2002.
4. It appears that after the receipt of the order, the petitioner, once again, preferred an application addressed to the Page 4 of 12 C/SCA/21152/2016 ORDER State Government clarifying certain things. The said application is pending for consideration as on today.
5. This application is disposed of with a direction to consider the application filed by the petitioner dated 10th December, 2015 and take an appropriate decision in that regard in accordance with law."
3.5 The record indicates that after the aforesaid order dated 14.03.2016, the respondent authorities considered the application so filed by the petitioner and by a communication dated 27.07.2016, the petitioner was informed that the said application is rejected. On the aforesaid factual matrix, it is contended by the petitioner that the respondents have wrongly interpreted Rule 77, 78 and 79 of the Gujarat Civil Service (Pensions) Rules and have rejected the application for compassionate pension.
4. The petitioner has raised six grounds in the petition 4.1 In ground (A), it is asserted by the petitioner that the action of the respondent in not giving pension and other benefit to the petitioner is illegal and against the law.
4.2 It is further contended in ground (B) that the impugned action of the respondent is ex facie illegal and not tenable in law and should be quashed and set aside.
Page 5 of 12 C/SCA/21152/2016 ORDER4.3 Further, it is contended by the petitioner in ground (C) that the authorities ought to have considered relevant provisions of GCSR and ought to have considered the case of the petitioner for compassionate pension.
4.4 It is also contended by the petitioner that the authorities have erred in coming to the conclusion that as the petitioner and the son are living separately and hence, they are not entitled to pension.
4.5 It is also asserted that the authorities ought to have considered the fact that the learned trial court had awarded monthly maintenance of Rs.1500/.
4.6 In ground (F), the petitioner has contended as under "The respondents' action is wrong as they had published the advertisement for regular appointment however they have given contractual appointment to the petitioner."
5. In response to the notice issued by this Court, the State Government, through respondent no.3, has filed an affidavitinreply. The respondent authorities have contended that the petitioner's husband was appointed as Armed Police Constable on 23.01.1987 and he was made to compulsorily retire on account of criminal complaint registered against him on 05.02.2008. It is contended by the respondent that husband of the Page 6 of 12 C/SCA/21152/2016 ORDER petitioner never challenged such a major punishment imposed upon him for being involved in offence and that the husband of the petitioner expired almost after six years of passing of the order of compulsory retirement, on 03.01.2014. It is also contended by the respondent that both the petitioner and her husband were staying separately and the representation dated 22.01.2015 for grant of compassionate pension was filed by the petitioner after one year of his death. It is contended that both the applications were considered as per two orders passed by this Court.
6. The respondents have specifically contended that as per Rule 25 of the GCSR Pension Rules, if the services prior to the rejection, removal or dismissal would not qualify for the purpose of pension. Referring to Rule 32 and Rule 44(4) of the said Rules, the respondents have contended that compassionate pension is a class of pension available to Government servants who are removed from service for misconduct, insolvency or inefficiency and in the case on hand, the husband of the petitioner was made to compulsorily retire from service on account of misconduct in service. It is contended that the State Government has considered the applications filed by the petitioner and has come to the conclusion that the case of the petitioner does Page 7 of 12 C/SCA/21152/2016 ORDER not deserve any special treatment for sanction or grant of compassionate pension as per Rule 78 of the GCSR Pension Rules. It is further contended by the respondent that decision taken by the authorities is in accordance with law and such executive decision as long as they are in consonance with the law and are reasonable and are not a result of malafides or erroneous procedure cannot be subjected to judicial review by this Court. It is contented that the State Government while exercising its discretionary powers and for the reasons which are stated in the impugned order dated 04.09.2015, has rightly rejected the application filed by the petitioner for compassionate pension.
7. It may be noted that the petitioner has filed rejoinder and has contended that indirectly, the respondents have admitted that the petitioner is entitled to compassionate pension, however, as she has got sufficient means to maintain herself, she is not entitled to pension and on such wrongful assumption, the respondents have rejected her application dated 25.09.2015. It is contended by the petitioner that the authorities have not considered the fact that the petitioner got maintenance of Rs.20000/ only once and in fact has declared in her rejoinder that the husband of the petitioner had to go to jail once on account of failure to pay the maintenance amount. It is contended by the petitioner that the respondents have failed to Page 8 of 12 C/SCA/21152/2016 ORDER reconsider her review and have also not considered the detailed explanation given by the petitioner.
8. The learned counsel for the parties have reiterated the contentions raised in the petition and in the affidavit.
9. No other or further submissions have been made by the learned counsel appearing for the parties.
10. It is a matter of fact that as per the earlier two orders, the application of the petitioner has been considered by the authorities. Considering the contentions raised in the petition, which are reiterated in form of argument as well and on perusal of the order impugned in this petition, it deserves to be noted that the case of the petitioner has been considered twice by the respondent authorities. It is an admitted position that husband of the petitioner was made to compulsorily retire on 05.02.2008 and that he expired on 03.01.2014, i.e., admitted after a lapse of six year and during his lifetime, he has neither challenged it nor has he applied for any compassionate pension. The order impugned dated 20.07.2016, which is as such impugned in this petition, clearly spells out that the respondent authorities have considered the application as Page 9 of 12 C/SCA/21152/2016 ORDER per the earlier orders passed by this Court in its true letter and spirit. The order shows that the application was also sent to the Finance Department for its opinion wherein it is evident that the petitioner's husband was made to compulsorily retire on grounds such as rounds fired from his service rifle, was having habit of drinking and considering such grounds, the State Government having considered the application of the petitioner in Home Department as well as Finance Department, has come to the conclusion that the application of the petitioner for compassionate pension is not fit to be granted. Considering the provisions and more particularly Rule 78 of the GCSR Pension Rules, 2002, the same gives discretion to the State to consider compassionate pension for those employees who have been dismissed. However, in case on hand, it also transpires that an offence under Prohibition Act was registered with Danilimda Police Station as CR. No. 5020/06 and after due inquiry, it was held that the husband of the petitioner was guilty. The order dated 05.02.2008 of compulsorily retiring petitioner's husband which has become final has not been challenged by the husband of the petitioner during his lifetime apart from the fact that the petitioner and the husband of the petitioner were staying separately, though may not be a very relevant factor, but the fact remains that while passing the order dated Page 10 of 12 C/SCA/21152/2016 ORDER 20.07.2016 as well as earlier order dated 04.09.2015, the authorities have considered the relevant provisions of Rule 77, 78 and 79 of the GCSR Pension Rules, 2002 and have come to the conscious decision that it is not a fit case for grant of compassionate pension. The respondent is right in asserting that no malafide are alleged nor there is any breach or any lapse in the procedure and therefore, this Court has got very little power for judicial review of the impugned order. At this stage, it would be appropriate to note that ground F raised in the petition is either wrongly raised or that it does not relate to the issue involved in this petition and therefore, such ground deserves to be negatived outright. It is further pertinent to note that in the petition, in para 8, the petitioner has wrongly interpreted the order passed by this Court in Special Civil Application No. 3958/16 dated 04.09.2015. On bare perusal of the said order, which is at AnnexureF to the petition, this Court has quoted the earlier order dated 01.07.2015 passed in Special Civil Application No. 10352/15 and as observed hereinabove, has not quashed and set aside the earlier order dated 04.09.2015 and therefore, the petitioner has made a false statement in para 8 of the petition by misreading the order dated 14.03.2016 passed in Special Civil Application No. 3958/16.
Page 11 of 12 C/SCA/21152/2016 ORDER11. Consequently, the petition fails on all the grounds which are raised. The decision taken by the respondent authority is in accordance with law after due deliberation and by implementing the directions issued by this Court in the two orders which were passed in earlier petitions filed by the petitioner. No interference is called for in exercise of extraordinary jurisdiction under Article 226 of the Constitution. The impugned order being legal and proper, does not require any substitution by this Court.
12.Resultantly, the petition fails on all counts and the same is therefore hereby rejected in limine. However, there shall be no order as to costs.
(R.M.CHHAYA, J) bjoy Page 12 of 12