Philip P.J. v. Union of India and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anu Sivaraman
Judgment Date: 2019-06-18
Court Decision / Holding: Ext.P6 order set aside. The respondents are directed to reconsider the petitioner’s request for compassionate allowance, taking into account the circumstances pleaded and whether the case falls under Rule 41 and the special considerations outlined in Mahindra’s case, and to pass appropriate orders within three months from receipt of a copy of this judgment.
Final Disposition: Writ petition allowed; Ext.P6 set aside; directive to reconsider compassionate allowance with due application of mind, in light of Rule 41 CCS (Pension) Rules, 1972 and Mahindra’s case, within three months.

Parties to the Case

Appellants / Petitioners

Philip P.J.

Respondents

The Union of India
The Director General, Border Security Force
The Commandant, 181 BN BSF

Legal Representation & Advocates

Counsels for Petitioners

• Sri. R. Rajasekharan Pillai
• Smt. Sabina Jayan

Counsels for Respondents

• Smt. O.M. Shalina, CGC

Case Synopsis & Summary

This writ petition, filed by Philip P.J., a Hawildar in the Border Security Force (BSF), challenges Ext.P6, a cryptic order rejecting his claim for Compassionate Allowance. The petitioner, who joined as Naik in 1995 and was promoted to Hawildar in 1997, suffered malaria in 1998. After the illness and the death of his father, he could not promptly rejoin duty, despite correspondence with the respondent authorities. He was terminated on 8 January 2008 for not resuming duty, though later he submitted Exhibit P5 (a representation) seeking compassionate allowance, asserting financial crisis and no avocation for the last decade. The respondents contended that the petitioner's request had been considered and rejected as devoid of merits, and that CCS (Pension) Rules, 1972 Rule 41 does not bestow a right to compassionate allowance. The petitioner relied on apex court jurisprudence (e.g., Mahinder Dutt Sharma v. Union of India) and other authorities, urging that the decision should be made on merits and via a speaking order. The High Court held that the compassionate allowance claim must be reconsidered with a speaking order, taking into account the circumstances alleged and the guidance in Mahindra’s case, directing the respondents to decide within three months with proper application of mind. The petition is allowed accordingly.

Provisions of Law Cited

Rule 41 of the CCS (Pension) Rules, 1972Central Civil Service (Pension) Rules, 1972

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that compassionate allowance must be decided on merits per Supreme Court guidance (notably in Mahinder Dutt Sharma v. Union of India) and that Ext.P6 is cryptic, showing no application of mind. He argues that Rule 41 of CCS (Pension) Rules, 1972 requires a speaking order, and the grounds raised in Exhibit P5 (financial hardship, no other income for a decade) deserve due consideration.

Contentions of Respondents

The respondents contend that the petitioner was repeatedly asked to resume duty and refused; therefore termination (8.1.2008) was lawful. The request for compassionate allowance had been considered and rejected for lack of merits, as per CCS (Pension) Rules, 1972; no right to compassionate allowance accrues under Rule 41.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Mahinder Dutt Sharma v. Union of India	(2014) 11 SCC 684	Positive	Cited to support merit-based consideration and the need for a speaking, reasoned decision in compassionate allowance cases.
Union of India and others v. Tarsem Singh	(2008) 8 SCC 648	Mentioned Only	Referenced by petitioner but not relied upon for the decisive reasoning in this judgment.
Thankappan Nair v. State of Kerala	2001(3) KLT 855	Mentioned Only	Cited by petitioner; the judgment does not base its decision on this ruling.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941** ## **WP(C).No.36300 of 2018** ## **PETITIONER:** **PHILIP P.J., AGED 43 YEARS EX.95154488, HEAD CONSTABLE, PADINJARE PARAMBIL HOUSE, KOLKKAD P.O., KELAKAM, KANNUR DISTRICT-670673. BY ADVS. SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN** ## **RESPONDENTS:** |**1**|**THE UNION OF INDIA,**| |---|---| ||**REPRESENTED BY THE SECRETARY,**| ||**MINISTRY OF HOME AFFAIRS, BLOCK NO.10,**| ||**5TH FLOOR CGO COMPLEX,**| ||**LODHI ROAD, NEW DELHI-110003.**| |**2**|**THE DIRECTOR GENERAL,**| ||**BORDER SECURITY FORCE, BLOCK NO.10, 5TH FLOOR**| ||**CGO, COMPLEX, LODHI ROAD, NEW DELHI- 110003.**| |**4**|**THE COMMANDANT,**| ||**181BN, BSF, PANISAGAR, TRIPURA (NORTH)- 799260**| ||**BY ADV. SMT.O.M.SHALINA, CGC**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).No.36300/18 2 ## **JUDGMENT** 1. This writ petition is filed by a Hawildar, who is dismissed from the BSF, challenging Exhibit P6 order by which his claim for Compassionate Allowance has been rejected by a cryptic order. - 2.Heard the learned counsel for the petitioner and the learned CGC appearing for the respondents. 3. It is submitted by the learned counsel for the petitioner that the petitioner was selected as 'Naik' in the BSF and was appointed w.e.f. 11.8.1995. It is stated that the petitioner was promoted as Hawildar in 1997. In 1998, the petitioner suffered from malaria. Thereafter, his father passed away and the petitioner had to come back to his home State. It is stated that the petitioner suffered a fall while he was on leave and therefore could not rejoin duty. Though there were communications between the petitioner and the respondents, Exhibit P4 order of termination was issued on 8.1.2008, since W.P.(C).No.36300/18 3 the petitioner did not rejoin duty in spite of repeated directions to do so. It is submitted that, long thereafter, the petitioner had submitted Exhibit P5 request for compassionate allowance. It is stated in Exhibit P5 that the petitioner had no avocation or occupation for the last decade and that he is in financial crisis. It is further contended that in view of the decision of the Apex Court in **Mahinder Dutt Sharma v. Union of India** [(2014)11 SCC 684], the petitioner's request for compassionate allowance is liable to be considered on its merits. The petitioner has also placed reliance on a decision in **Union of India and others v. Tarsem Singh** [(2008) 8 SC 648] A decision of the Division Bench of this Court in **Thankappan Nair v. State of Kerala** [2001(3) KLT 855] was also relied on. However, petitioner's representation was rejected by issuing Exhibit P6 stating that the request had been rejected being devoid of merits. No reasons, whatsoever, are stated in Exhibit P6 for rejecting the request of the petitioner. The order also does not reveal any consideration of the grounds raised by the petitioner in Exhibit P5. The learned W.P.(C).No.36300/18 4 counsel for the petitioner would submit that the relevant considerations as enumerated by the Apex Court in **Mahindra's** case (supra) ought to have been taken note of by the respondents and a speaking order has to be passed. 4.A counter affidavit has been placed on record on behalf of respondents 1 to 3. It is stated that the petitioner had been repeatedly requested to resume duty after expiry of the sanctioned leave, but he had refused to do so. It was in the above circumstances that Exhibit P4, order of termination dated 8.1.2008 had been rendered. It is stated that in response to the petitioner's request, he had been informed that the request for grant of compassionate allowance had been considered by the competent authority and had been rejected, being devoid of merits. It is stated that the petitioner's case does not deserve any special consideration, as provided under Rule 41 of the Central Civil Service (Pension) Rules, 1972 and therefore the petitioner cannot, as of right, claim any compassionate allowance. W.P.(C).No.36300/18 5 5. Having heard the learned counsel appearing on either side, I am of the opinion that the claim raised for compassionate allowance is to be considered by the respondents and a speaking order is liable to be issued. The question as to whether the case of the petitioner is one which falls under the requirement of Rule 41 and the question whether the petitioner's request is one deserving a special consideration is to be specifically considered and answered by the respondents. In view of the fact that the petitioner's claim had been rejected by a cryptic order stating that his claim is devoid of merits, I am of the opinion that Exhibit P6 does not reveal a proper application of mind and requires reconsideration. 6. Ext.P6 order is, therefore, set aside. There will be a direction to the respondents to reconsider the request made by the petitioner for compassionate allowance, taking note of the circumstances pleaded by the petitioner and considering W.P.(C).No.36300/18 6 whether the request of the petitioner is one deserving a special consideration as provided in Rule 41 of the CCS (Pension) Rules, 1972. The considerations, as directed by the Apex Court in **Mahindra's** case (supra) shall also be taken note of by the respondents. Appropriate orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.36300/18 7 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE MALARIA CARD ISSUED TO THE PETITIONER BY THE MEDICAL OFFICER OF THE COMMAND.** **EXHIBIT P2 TRUE COPY OF THE LETTER DATED 13.02.2007 2008 FROM THE 4TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 29.10.2007 ISSUED BY THE PETITIONER.** **EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 08.01.2008 FROM THE 4TH RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS.** **EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 13.08.2018 FROM THE OF THE COMMANDANT 181 BN BSF.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R4(A)** TRUE COPY OF THE UNIT LETTER NO.ESTT/OSL/181/07/11109 DATED 13 AUGUST 2007. **EXHIBIT R4(B)** TRUE COPY OF THE UNIT L/NO.ESTT/DISC/OSL/181/07/19718 DATED 12 OCT. 2007. **EXHIBIT R4(C)** TRUE COPY OF THE LETTER NO. ESTT/DISC/OSL/RJB/181/07/14704 DATED 22 NOV. 2007. **EXHIBIT R4(D)** TRUE COPY OF THE FORCE HQ BSF NEW DELHI LETTER NO.26001/ADM-DTE (P.G. CELL)/2018/196062 DATED 27 MARCH 2018. W.P.(C).No.36300/18 8 ## **EXHIBIT R4(E)** TRUE COPY OF THE FRONTIER HQ BSF TRIPURA LETTER NO.IGA/ESTT-IV/PENSION/18/4252-56 DATED 11 APRIL 2018. /True copy/ PS to Judge