Smt. Bhanwar Kanwar Vs. State and ors - Court Judgment

S.B.Civil Writ Petition No.2591/2014 Smt.

Bhanwar Kanwar versus State of Rajasthan & ORS.Order dt: 18/07/2014 1/6 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER

S.B.Civil Writ Petition No.2591/2014 Smt.

Bhanwar Kanwar versus State of Rajasthan & ORS.Date of Order ::: 18th July, 2014 PRESENT HON'BLE Dr.

JUSTICE VINEET KOTHARI Appearance: Mr.Mahaveer Singh, for the petitioner.

Ms.Sheweta Bora on behalf of Mr.Anil Bissa, Addl.

Govt.

Counsel.

BY THE COURT: 1.

Learned counsel for the petitioner submits that the controveRs.involved in the present writ petition is squarely covered by a judgment of this Court in the case of Smt.

Pappu Devi versus State of Rajasthan & ORS.reported in 2009 (2) WLC (Raj.) 158 and in the case of Smt.

Paras Kanwar versus State of Rajasthan & ORS.(SBCWP No.11423/2009 decided on 03.11.2009) decided by a coordinate bench of this court, a copy whereof has been placed on record as Annex.3.

The matter is regarding payment of special pension payable to the widow of the employees of the Police Department in terms of Rule 268-I of the Rajasthan Service Rules, 1951 under Chapter 23B.

2.

Learned counsel for the respondents is not in a position to seriously dispute this position.

S.B.Civil Writ Petition No.2591/2014 Smt.

Bhanwar Kanwar versus State of Rajasthan & ORS.Order dt: 18/07/2014 2/6 3.

The relevant extract of the judgment of the coordinate bench of this Court in the case of Smt.

Paras Kanwar (supra) referring to earlier judgment rendered in the case of Smt.

Pappu Devi (supra) delivered by this Court, is quoted herein below for ready reference: - “The learned counsel for the petitioner contended that with the consistent decisions of this Court, the issue is no more res-integra that the relevant provisions as contained in Chapter XXIII-B, ought to be read as including the case of the police personnel who died while discharging the duty as per the dictum in Smt.

Savita Yadav versus State of Rajasthan (DBCWP No.1668/1987).decided on 11.01.1990 that has been followed in other cases including that in State of Rajasthan & Ors versus Smt.

Urmila Devi & Ors : 1996 (3) WLC (Raj.) 703 and in Smt.

Pappu Devi versus State of Rajasthan & Ors : 2009(2) WLC (Raj.) 158.

The learned counsel for the respondents on the other hand submitted that some of the matters are pending in appeal before the Division Bench of this Court.

As at present, the position of law stands as laid down in Smt.

Savita Yadav (supra) and followed in different decisions as noted above.

In Savita Yadav's case (supra).the Division Bench of this Court said: “By this writ petition the petitioner seeks to strike down the words “as a result of enemy action including action by paratroopers and infiltrators from Pakistan”.

occurring in Rule 268 I of the Rajasthan Service Rules.

The petitioner's case is that her husband Shri Nirmal Singh was a post graduate and was appointed as Sub Inspector of Police.

He was S.B.Civil Writ Petition No.2591/2014 Smt.

Bhanwar Kanwar versus State of Rajasthan & ORS.Order dt: 18/07/2014 3/6 thirty years of age at the time of his death.

He was posted in Udai Mandir Police Station, Jodhpur.

He proceeded to the premises of one Shri Surat Singh Yadav to investigate a case alongwith Assistant Superintendent of Police Shri A.K.Arora, I.P.S.The police party of which Nirmal Singh was a member went underground of the premises of Shri Surat Singh.

There some explosion took place resulting into the death of the petitioner's husband Shri Nirmal Singh.

The petitioner's case is that the benefit of pension be made available to the petitioner as well as her husband died while he was on duty.

Under Rule 268 I sub-rule (ii) the benefit is available to police personnel whether in regular or irregular units including R.A.C.Upto the rank of Superintendent of Police (other than I.P.S.OfficeRs.and Class IV servants, followers and other noncombatant 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.

The petitioner's case as contended by the counsel for the petitioner is that this classification excluding police personnel who die on duty but not as a result of enemy action is bad and there can be no justification for such exclusion.

The classification is an arbitrary classification so this part of the Rule that it applies only to those who die while on duty as a result of enemy action including action by paratroopers and infiltrators from Pakistan deserves to be struck down.

Learned counsel for the petitioner also submitted that the provision contained in Rule 268 J is also confined to death as a result of injury sustained in encounter with dacoits or as a result of enemy action.

It does not contemplate death of a police personnel while discharging his duty other than the duty in encounter with dacoits or duty in enemy action.

This provision should also be made applicable to those police personnel as well who are killed or die while discharging their duty, so this provision should be read down to include the police personnel who while in service on or after the 5th August, 1965 are killed or die while discharging their duty.

S.B.Civil Writ Petition No.2591/2014 Smt.

Bhanwar Kanwar versus State of Rajasthan & ORS.Order dt: 18/07/2014 4/6 We find force in the submissions with respect to Rule 268 I and Rule 268 J.

As regards Rule 268 I no distinction can be made when a police personnel is killed while on duty and when a police personnel is killed while on duty as a result of enemy action.

Both die on duty so the benefit should be given to both whether they die on duty as a result of enemy action or they simply die while discharging duty without any enemy action.

The said part of sub-rule (ii) of Rule 268 I appears to be violative of Article 14 of the Constitution and therefore that deserves to be struck down.

So far as Rule 268 J is concerned that has to be read down so as to include police personnel who are killed or die while discharging their duty, so after the words 'killed or die' 'while discharging their duty' should be read.

Accordingly, this writ petition is allowed.

This part of sub-rule (ii) of Rule 268 I “as a result of enemy action including action by paratroopers and infiltrators from Pakistan”.

is struck down and the consequence thereof is the petitioner would be entitled to benefits as provided in Rule 268 I of the Raj.

Service Rules and the Rule 268 J is read down by introducing the words “while discharging their duty”.

after the words “killed or die”.The State Government is, therefore, directed to give to the petitioner benefits as a result of striking down and reading down the Rule 268 I and the Rule 268 J.”

.

Following the said decision, in Smt.

Urmila Devi's case (supra) another Division Bench of this Court, in a case of more or less akin nature where a police personnel traveling in a police jeep died for the injuries sustained when the jeep met with the accident, directed that the benefit of special provisions enshrined in Chapter XXIII-B of Rs.shall be applicable; and the respondents were directed to revise the family pension of the family members of those police personnels, who may or may not have approached the appellants or the S.B.Civil Writ Petition No.2591/2014 Smt.

Bhanwar Kanwar versus State of Rajasthan & ORS.Order dt: 18/07/2014 5/6 Court but died while discharging their official duties, on or after 05.08.1965.

Striking the same note in Papu Devi's case (supra).a co-ordinate Bench again accepted the claim of the wife of the police personnel who died in accident that occurred while he was on duty and also issued directions for similar treatment in relation to the similarly situated persons.

For the view taken and applied by this Court in the decisions aforesaid, this Court finds no reason that the benefit of “Special Pensionary Awards”.

under Chapter XXIII-B of Rs.would not be available to the petitioner whose husband was working as a police constable and died while on duty.

In the aforesaid view of the matter, this writ petition is allowed.

The respondents are directed to accord the benefits per Chapter XXIII-B of Rs.to the petitioner and to make payment of the amount payable therefor without delay.

It shall be required of the respondents to make actual payment of the arrears within 30 days from today and to settle the pensionary benefits of the petitioner for the future accordingly.

Having regard to the circumstances of the case, it is also observed that in case the respondents fail to make the requisite payment within 30 days from today to the petitioner, the entire payment shall carry interest @ 9% per annum from the date of this order.

Having regard to the circumstances, there shall be no order as to costs.

Sd/- (DINESH MAHESHWARI),J.”

.

S.B.Civil Writ Petition No.2591/2014 Smt.

Bhanwar Kanwar versus State of Rajasthan & ORS.Order dt: 18/07/2014 6/6 4.

The undisputed fact is that on 16.03.1989, the Constable Nathu Singh, who was posted at Police Station- Sadari, District: Pali, was asked to go for some investigation along-with six police personnel and two accused persons.

However, when they were going in the police jeep, the said jeep met with an accident and on account of injuries sustained by the petitioner, he unfortunately expired on 30.04.1989 while discharging the officials duties.

On account of the said death while discharging the duties, the special pension is payable to the family of the deceased Government servant according to Rule 268-I of the Rajasthan Service Rules, 1951 under Chapter 23B, besides the family pension.

The controveRs.involved in the present case is covered by the judgments of this Court, therefore, the present writ petition also deserves to be disposed of in the same terMs.6.

The writ petition is, accordingly, allowed in the same terMs.No costs.

A copy of this order be sent to the concerned parties forthwith.

(Dr.

VINEET KOTHARI).J.

DJ/- 23