(Prayer: Writ Petition under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records relating to the impugned order in O.A. No.385 of 2024 dated 19.11.2024.)

S.M. Subramaniam, J.

1. Under assail is the order of the Central Administrative Tribunal (hereinafter referred to as 'CAT') dated 19.11.2024 passed in O.A.No.385 of 2024.

2. Union of India is the writ petitioner. The respondent was appointed as DSC Khalasi on 27.08.1991. He remained unauthorisedly absent from duty from 13.01.2000 to 03.10.2000. Departmental disciplinary proceedings were initiated and charges were framed. The disciplinary authority imposed the punishment of compulsory retirement vide order dated 11.06.2002. Accordingly, he was compulsorily retired with effect from 20.06.2022. In view of the punishment, his qualifying service was determined and accordingly the benefits as admissible for compulsory retirement has been settled in the year 2002.

3. The respondent filed O.A.No.10 of 2022 before the CAT and a direction was issued to consider the representation. The Divisional Personnel Officer, Madurai considered the representation and pass an order dated 18.12.2023. The department reiterated that under Rule 65 of the Railway Pension Rules 1993, the respondent is not eligible for compassionate allowance. Challenging the rejection order, the respondent again filed O.A.No.385 of 2024. The CAT allowed the OA resulting in filing of the present writ petition by Union of India.

4. Learned Standing Counsel appearing for the petitioner would mainly contend that Rule 65 of the Railway Services Pension Rules 1993 is inapplicable to the case of the respondent. He was imposed with a punishment of compulsory retirement and the benefits admissible under the Rules for compulsory retirement has already been settled in favour of the respondent. He filed a representation after a lapse of 15 years from the date of compulsory retirement ie., in the year 2002. Thus, the application ought to have been rejected at the initial stage. However, the CAT granted compassionate allowance and thus the impugned order is liable to be set aside.

5. Learned counsel for the respondent would oppose by stating that the railway servant who is compulsorily retired is also eligible for compassionate allowance. Compassionate allowances are granted in certain deserving cases and in the present case the respondent was compulsorily retired from service and therefore he is eligible to avail the benefit of compassionate allowance under Rule 65 of the Railway Services Pension Rules. He would rely on certain judgments of the CAT as well as the judgment of the Supreme Court in the case of Mahinder Dutt Sharma -vs- Union of India and Others(Civil Appeal No.2111 of 2009 dated 11.04.2014).

6. The facts before the Hon'ble Supreme Court of India in the case of Mohinder Dutt Sharma are that, the said employee was inflicted with a punishment of dismissal from service. Rule 41 of the CCS Pension Rules which is pari materia with Rule 65 of the Railway Pension Rules also state that, a Government Servant who is dismissed or removed from service shall forfeit his pension and gratuity; Provided that the authority competent to dismiss or remove him from service may, if the case is deserving of special consideration, sanction a compassionate allowance not exceeding two-thirds of pension or gratuity or both which would have been admissible to him if he had retired on compensation pension. Therefore, the said judgment of the Hon'ble Supreme Court is inapplicable to the facts of the present case since the respondent in the present case was imposed with a punishment of compulsory retirement.

7. Even then, compassionate allowance cannot be claimed as an absolute right. It is a discretion to be exercised by the authorities if any employee has been dismissed or removed from service. Special circumstances and the reasons for grant of compassionate allowance are to be recorded. It is not a routine affair to grant compassionate allowance to all the employees, who all are dismissed or removed from service.

8. The Division Bench of this Court has considered similar issue in the case of Divisional Personnel Officer -vs- G.Lakshmi(2026 MHC 3380) (2026 MHC 3380), wherein the scope of Rule 65 of the Railway Service Pension Rules has been considered and the relevant paragraphs are extracted hereunder.

                   “5. Section 65 of the Railway Services (Pension) Rules 1993 reads as follows: “

                   65. Compassionate allowance – (1) A railway servant who is dismissed or removed from service shall forfeit his pension and gratuity:

                   Provided that the authority competent to dismiss or remove him from service may, if the case is deserving of special consideration, sanction a compassionate allowance not exceeding two-thirds of pension or gratuity or both which would have been admissible to him if he had retired on compensation pension.”

                   6. Rule 18(1) of the Railway Services (Pension) Rules 1993 stipulates that persons with less than ten years of qualifying service shall not be eligible for pensionary benefits. That apart, the Railway Board in its Letter No.F(E) III/2003/PN/5 dated 09.06.2005 has stated as follows.

                   “ Compassionate allowance being one of the classes of pensions and a minimum qualifying service of ten years is a pre-requisite for sanction of any class of pension, before sanctioning compassionate allowance, it is absolutely necessary for the competent authority intending to sanction compassionate allowance to a person on whom the punishment of removal / dismissal is imposed, to satisfy itself that such a person had rendered not less than 10 years of qualifying service.”

                   7. Learned counsel for the appellant / Railways relies upon the above Rule and contends that the deceased employee was conferred with regular appointment only in the year 1998 and from 1979 to 1988 he held temporary status. Hence, only 50% of that period can be included for determining the period of service as required for the grant of compassionate allowance. Moreover, he was removed from the service for unauthorised absence. After excluding the period of absence, the total period for which the deceased employee served in the Railways comes to only 07 years 06 months and 02 days. Therefore, the deceased employee is ineligible for the compassionate allowance as claimed by her and the Tribunal has erred in allowing the Original Application.

                   8. Pension is a right conferred under the Pension Rules. However, pension is to be granted in accordance with the Schemes applicable to a government employee. The benefit of pension is to be extended to an employee who has completed the qualifying service and allowed to retire from service.

                   9. In the present case, the respondent remained unauthorisedly absent for about six years, resulting in removal from service. The effect of removal or dismissal from service has been stated in Rule 40 of the Railway Servants Pension Rules, 1993.

                   “ 40. Forfeiture of service on dismissal or removal-Dismissal or removal of a railway servant from a service or post shall lead to forfeiture of his past service.”

                   10. The circumstances for grant of compassionate allowance would arise when an authority competent to dismiss or remove an employee from service may, if the case is deserving, on special consideration, sanction compassionate allowance not exceeding two-third of pension or gratuity or both, which would have been admissible to him, if he had retired on superannuation. Thus, compassionate allowance may be granted at the discretion of the competent authority on certain special circumstances. Therefore, the Courts in exercise of the powers of judicial review, cannot issue a direction to grant compassionate allowance, since it is not a right conferred on the employee removed or dismissed from service.

                   11. A distinction is to be drawn between a right and a concession extended under the Statute or Rules in force. If a Statute or Rules confers an absolute right, then the Courts are empowered to issue direction to enforce the right. However, if it is a concession, the scope of interference by the Courts in exercise of powers of judicial review is limited.

                   12. In the present case, an employee was removed from service pursuant to his unauthorised absence for about six years. Therefore, while passing an order of removal or dismissal, the competent authority may, if the case is deserving a special consideration, grant compassionate allowance by invoking Rule 65. Pertinently, the language employed Rule 65 is "may". Therefore, the discretion vest with the competent authority to weigh the special circumstances and grant compassionate allowance by invoking Rule 65. Therefore, the Court cannot assume the benefit under Rule 65 of the Railway Services Pension Rules, 1993 right conferred and issue direction to grant pension.

                   13. In the present case, the competent authority while passing the order of removal, has not considered for grant of compassionate allowance to the respondent under Rule 65 of the Railway Services Pension Rules. Court granting the relief by directing the authorities to sanction compassionate allowance under Rule 65 of the Pension Rules would result in a wrong precedence. All removed and dismissed employees will also claim compassionate allowance under Rule 65 as a matter of right, which is not the scope and object of Rule 65 under the Pension Rules. In respect of dismissed or removed employees, Rule 40 would apply directly. Thus, their past services are forfeited. Grant of compassionate allowance in respect of removed employee is to be considered only by the competent authority while issuing the order of removal or dismissal. Thus, compassionate allowance under rule 40 is not a right, but a concession to be considered by the competent authority. In the absence of establishing any right under the Rules, the Court may not issue a direction to grant compassionate allowance, which would result in larger repercussions since all the dismissed or removed employees will claim compassionate allowance as a matter of right.

                   14. In view of the above discussion, the order dated 05.09.2023 in Original Application No.310/01244/2016 is set aside and the writ petition stands allowed. No costs.”

In view of the Pension Rules and also considering the fact that the respondent was imposed a punishment of compulsory retirement and had received the benefits admissible for compulsory retirement, the claim for compassionate allowance granted by the CAT after a lapse of 15 years from the date of punishment of compulsory retirement is running counter to the scope of Rule 65 of the Railway Pension Rules. Consequently, the order impugned dated 19.11.2024 made in O.A.No.385 of 2024 is set aside and the writ petition stands allowed. No costs. Consequently, connected miscellaneous petition is closed.