1
SBCWP No.11423/2009
Smt. Paras Kanwar Vs. State of Rajasthan & Ors.
S.B. Civil Writ Petition No.11423/2009
Smt. Paras Kanwar
vs
State of Rajasthan & Ors.
DATE OF ORDER: 3rd November 2011
HON’BLE MR. JUSTICE DINESH MAHESHWARI
Mr. Sajjan Singh Rathore for Dr. P.S. Bhati, for the petitioner.
Mr. I.S. Pareek, Government Counsel for the respondents.
Heard the learned counsel for the parties and perused the
material placed on record.
The petitioner’s husband, Late Shri Durjan Singh, who was
working with the respondents as a Constable and who is said to
have expired due to the injuries sustained in an accident upon the
Jeep, in which he was traveling for the purpose of reaching a
destination for investigation, met with an accident.
The grievance of the petitioner in this writ petition is that after
the demise of her husband, she has been receiving only the normal
family pension but has not been allowed special pension as per the
provisions contained in Chapter XXIII-B of the Rajasthan Service
Rules, 1951 (‘RSR’) dealing with “Special Pensionary Awards”; and
the respondents have not paid attention to her grievance despite
several representations.
The respondents Nos. 1 and 2 have filed a reply contending
that the case of the petitioner is not covered under the provisions of
2
SBCWP No.11423/2009
Smt. Paras Kanwar Vs. State of Rajasthan & Ors.
“Special Pensionary Awards”. Rule 268-I of RSR has been referred
with the submissions that the case of the petitioner does not fall in
any of the categories mentioned therein and hence, she is not
entitled for special pension. It is submitted that the husband of the
petitioner died due to the injuries sustained in the road accident and,
therefore, her case is not covered under Rule 268-I.
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 Vs.
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 Vs. Smt. Urmila Devi & Ors : 1996 (3) WLC (Raj.)
703 and in Smt. Pappu Devi Vs. 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 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.
3
SBCWP No.11423/2009
Smt. Paras Kanwar Vs. State of Rajasthan & Ors.
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.
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)
4
SBCWP No.11423/2009
Smt. Paras Kanwar Vs. State of Rajasthan & Ors.
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 RSR
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 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 RSR 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 RSR 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
5
SBCWP No.11423/2009
Smt. Paras Kanwar Vs. State of Rajasthan & Ors.
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.
[DINESH MAHESHWARI], J.
cpgoyal/-
