The court clarified that compassionate allowance does not apply in desertion cases per CCS Pension Rules.

JUDGMENT

The petitioner, who was serving with the Border Security Force (BSF) as a Constable, has filed the captioned writ petition seeking to challenge the proceedings at Ext.P8 issued by the 3^rd respondent refusing to extend the bene compassionate allowance with reference to the provisions of Rule 41 of the Central Civil Services (Pension) Rules , 1972 (hereinafter referred to as the ‘CCS Pension Rules’).

2. Heard Sri. R. Rajasekharan Pillai, the learned counsel for the petitioner, as well as Smt. Mini Gopinath, Senior Panel Counsel for the respondents.

3. It is noticed that the petitioner was serving with the BSF. He had availed two months’ leave from 20.04.1999 for the purpose of attending to his mother, who was stated to have been suffering from cancer and admitted to the hospital. However, the petitioner did not rejoin duty. Later, he was dismissed from service on 30.10.1999. Upon being dismissed from service, the petitioner sought the benefit of compassionate allowance with reference to the provisions of Rule 41 of the CCS Pension Rules. Ultimately, by the proceedings at Ext.P8, the 3^rd respondent herein issued an order refusing to extend the benefit of compassionate allowance. It is seeking to challenge the aforesaid that the petitioner is before this Court.

4. The learned counsel for the petitioner contends that in Ext.P7 judgment, the claim for compassionate allowance was directed to be considered with reference to the principles laid down by the Apex Court in Mahinder Dutt Sharma v. Union of India Others [(2014) 11 SCC 684] and by this Court in Thankappan Nair v. State of Kerala [(2001) 3 KLT 855] , and even thereafter, while issuing the order at Ext.P8, the claim for compassionate allowance was denied without any justification.

5. This Court had directed consideration of the claim with reference to the principles laid down in the aforesaid two decisions. At the same time, this Court notices that in the Ext.P8 order, the 3^rd respondent has observed that the case of the petitioner is one of ‘desertion from service’ and not a case of absenteeism. This Court also notices that repeated efforts were taken by the BSF unit to bring the petitioner back to service. Furthermore, in the counter affidavit filed, serious allegations have been raised against the petitioner with reference to his ‘overstay’, contending that he was conducting a business in Kerala. It is alleged that when steps were taken, the unit was informed by the relatives that the petitioner had already left to rejoin duty. In such circumstances, I am of the opinion that the finding in Ext.P8 that the case of the petitioner herein is to be treated as one of desertion cannot be said to be incorrect or arbitrary. The principles laid down by the Apex Court in Mahinder Dutt Sharma (supra) and by this Court in Thankappan Nair (supra) also would not apply to the facts and circumstances of the case at hand, in such circumstances.

Hence, I am of the opinion that the consideration in Ext.P8, with reference to the principles laid down by the Apex Court in Union of India & Others v. Datta Linga Toshatward [(2005) 13 SCC 709] , cannot be said to be incorrect or arbitrary. Therefore, I find no reason to interfere with the findings in Ext.P8, and the captioned writ petition would stand dismissed.

Sd/-