Sunil Kumar Garg, J. - (1.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioners on 19.6.1989 against the respondents with the prayer that by an appropriate writ, order or direction, (a) the respondents be directed to commute and third of pension of Shri Gani Mohammed (hereinafter referred to as the deceased) and the amount of commutation of pension be paid to the petitioners, who are heirs of deceased. (b) in case the provisions of Rule 16 of the Rajasthan Civil Services (Commutation of Pension) Rules, 1981 (hereinafter referred to as "the Rules of 1981") come in the way of the petitioners, then the same may be struck down as being unconstitutional. (c) the respondents be further directed to make payment of the amount towards earned leave due of deceased. (d) the order dated 29.1.1987 (Annex. 15) passed by the respondent No. 2 Superintendent of Police, Bhilwara by which payment made to the deceased in excess was ordered to be deducted from the gratuity payable to deceased, be quashed and set aside.
(2.) THE case of the petitioners as put forward by them in this writ petition is as follows: The petitioners are LRs of deceased Gani Mohammed, who died on 3.3.1987. The case of the petitioners is that while the deceased was working on the post of Assistant Sub -Inspector of Police in Bhilwara, the deceased was compulsorily retired from service with proportionate pension through order dated 25.10.1986 (Annex. 1) passed by the respondent No. 2 Superintendent of Police, Bhilwara and that order Annex. 1 was subsequently modified vide order dated 29.1.1987 (Annex. 2) by which it was made clear that pension, gratuity would be payable to the deceased as per Rules available. After retirement, the deceased moved an application for commutation of pension on 4.12.1986, a copy of which is marked as Annex. 3, and he also sent a reminder on 3.1.1987, a copy of which is marked as Annex. 4. However, before any communication could be received from the respondents, the deceased died on 3.3.1987. Thereafter, the petitioner No. 1 sent a letter dated 20.1.1988 (Annex. 5) to the respondent No. 2 Superintendent of Police, Bhilwara for grant of commutation of pension. Thereafter, the respondent No. 2 Superintendent of Police, Bhilwara wrote a letter Annex. 6 to the respondent No. 1 Director, Department of Pension, Government of Rajasthan, Jaipur on 4.2.1988 for consideration of the application of the petitioner No. 1 for grant of commutation of pension. Thereafter, through Annex. 7 dated 11.2.1988, the respondent No. 1 Director, Department of Pension, Jaipur informed the respondent No. 2 Superintendent of Police, Bhilwara that without medical examination of the deceased, the commutation of pension could not be allowed.
(3.) THEREAFTER , through Annex. 8 dated 17.2.1988, the respondent No. 2 Superintendent of Police informed the petitioner No. 1 that commutation of pension could not be granted to her. The petitioner No. 1 was further informed by the Dy. Inspector General of Police, Ajmer Range vide letter dated 23.2.1988 (Annex. 9) that after the death of a pensioner the amount of commutation cannot be paid to his family members. The first claim of the petitioners is that they are entitled to the payment of commutation of pension and if Rule 16 of the Rules of 1981, which requires medical examination of the concerned employee before granting commutation of pension, comes in the way of the petitioners,the same should be declared null and void. The second claim of the petitioners is that at the time of retirement, the deceased was having earned leave in his credit and, therefore, an application Annex. 12 was made on behalf of the petitioners before the respondent No. 2 Superintendent of Police, Bhilwara with the prayer that payment towards earned leave at the rate of 180 days' salary be made to the petitioners, but the respondent No. 2 Superintendent of Police through his letter dated 18.2.1988 (Annex. 13) informed the petitioners that because of Rule 172 -A of the Rajasthan Service Rules, 1951 (hereinafter referred to "as the RSR"), the deceased was not entitled to the payment towards earned leave as he was retired compulsorily and thus, payment towards earned leave could not be made available to the petitioners. The said order Annex. 13 dated 18.2.1988 has been challenged in this writ petition. The third claim of the petitioners is that the deceased was promoted to the post of Assistant Sub -Inspector of Police on temporary basis by the order dated 24.7.1979 and, thereafter, his salary was fixed under Rule 26 -A of the RSR vide order dated 20.9.1979. After retirement of the deceased, an order dated 29.1.1987 (Annex. 15) was passed whereby the order dated 20.9.1979 was withdrawn and the payment already made in excess was ordered to be deducted from the gratuity payable to the deceased. The said order Annex. 15 has also been challenged in this writ petition on various grounds and one of the grounds is that no opportunity of hearing prior to deduction of amount was given to the petitioners and because of this, the order Annex. 15 cannot be sustained and should be set aside. Hence, this writ petition with the prayers as stated above. A reply to the writ petition was filed by the respondents. On point of commutation of pension, it was submitted by the respondents that the deceased was only entitled to commute a fraction of his pension after he was declared fit by the appropriate Medical Authority and the deceased was required to apply to the Head Office under Rule 17 of the Rules of 1981 in Form -2 for commutation of pension, but he applied for commutation of pension in Form -I under Rule 12 of the Rules of 1981 which dealt with those pensioners, who can seek commutation of pension without medical examination. It was further submitted by the respondents that deceased applied for commutation of pension on 4.12.1986 and he died after three months on 3.3.1987 and therefore, since no medical examination of the deceased was got conducted, therefore, the petitioners were not entitled to amount of commutation of pension. On point of earned leave, it was submitted by the respondents that the petitioners are not entitled to payment towards earned leave. On point of recovery ordered to be made through Annex. 15, it has been submitted by the respondents that as excess payment was wrongly made to the deceased, therefore, recovery could be made. Hence, the writ petition filed by the petitioners be dismissed.;