(1) Civil Writ Petition No.3932 of 2002 v. Kamlesh Rani

brief facts of each case. Civil Writ Petition No.3932 of 2002 Dhian Chand, husband of the petitioner Leela Devi, was employed as a Beldar on work-charge basis in the Department of Irrigation and Power, Punjab. Dhian Chand had rendered 7 years 5 months and 10 days service, when he died while in service on 26th October, 1993 at a very young age. The petitioner made various representations for grant of family pension and other pensionary benefits. The family pension was declined to the petitioner on the ground that her husband was a work-charge employee and his services had not been regularized. Counsel for the petitioner has relied upon instructions dated 7th May, 1993 issued by the Government of Punjab (Annexure P-5) to say that husband of the petitioner was entitled to be regularized in view of the policy decision taken by the Government. Learned counsel has further stated that even if the services of husband of the petitioner were not regularized, still the petitioner was entitled to grant of family pension in view of the law laid down by a Division Bench of this Court in Usha Rani’s case (supra). A perusal of the judgment rendered in Usha Rani’s case (supra) reveals that husband of Usha Rani was a daily-wager, who had Civil Writ Petitions No.3932 & 3938 of 2002 3 worked for more than five years. The Division Bench noticed this fact in para 6 of its judgment, which reads as under: “6. We have given our thoughtful consideration to the respective contentions of the learned counsel for the parties. It is appropriate to note that Ravinder Singh, deceased husband of the petitioner was appointed as Mali- cum-Chowkidar in the Public Health Department on work- charge/daily wage basis w.e.f. March 1994 and he expired on

20.8.1999. The deceased Ravinder Singh had rendered more than five years of service at the time of his death. The question, therefore, that requires to be considered is whether the petitioner is entitled for family pension, gratuity, ex-gratia grant and other benefits on account of the demise of her husband. It is appropriate to note that the claim of the petitioner is primarily for family pension and that the Family Pension Scheme, 1964 as contained in Appendix-I under Chapter-XV of the Punjab Civil Services Rules (as applicable in Haryana). Volumed II, Part-I ("1964 Scheme' for short) is applicable in the State. Paras 1, 3, 4 and 11 of the 1964 Scheme read as under:- ‘1. This scheme called the "Family Pension Scheme 1964" has been formulated to afford further relief to the family of the deceased Government employees and provides for the following benefits :- *Pay of the Govt. Employee (i) Not exceeding Rs.1500 Monthly pension of widow/widower or children 30% of pay subject to a minimum of Rs.300 (ii) Exceeding Rs.1500 but not exceeding Rs.3000 20% of pay subject to a minimum of Rs.450. (iii) Exceeding Rs.3000 15% of pay subject to a minimum of Rs.600 and a maximum of Rs.1250 *Substituted vide No. 1/2/CSR Vol.II/91-SAO(FD),

31.1.1992 w.e.f. 1.1.1986 Note. - The minimum pension will be Rs. 300 and maximum Rs. 1250. Civil Writ Petitions No.3932 & 3938 of 2002 4 "Pay" for this purpose means the pay as defined in Rules 2.94 of Punjab Civil Services Rules, Volume I, Part I, which the person was drawing on the date of his death while in service or immediately before his retirement. If on the date of his death while in service or immediately before his retirement, a person has been absent from duty on leave (including extraordinary leave) or suspension. "Pay" means the pay which he drew immediately before proceeding on such leave or suspension. It includes "Dearness Pay".

3. This scheme comes into force with effect from 1st July, 1964 and is applicable to all regular employees on pensionable establishment - temporary or permanent - who were in service on the 1st July, 1964, or are recruited thereafter. "4. This scheme is administered as below :- (i) The family pension is admissible in case of death while in service or after retirement on or after the 1st July, 1964 if at the time of death, the retired officer was in receipt of a compensation, invalid, retiring or superannuation pension. The Family Pension will not be admissible in case of death after retirement if the retired employee at the time of death was in receipt of gratuity only. In case of death while in service a Government employee should have completed a minimum period of one year of continuous service without break..... (emphasis added) Note 1. - The term one year continuous service used in para-4(i) above is inclusive of permanent/temporary service in a pensionable establishment but does not include periods of extraordinary leaves, boy (sic.) service and suspension period unless that is regularised by the competent authority or before completion of one year continuous service provided the deceased Government employee concerned immediately prior to his recruitment to the service or post was examined by the appropriate Medical Civil Writ Petitions No.3932 & 3938 of 2002 5 Authority and declared fit by that authority for Government service. Note 2. - xx xx xx xx xx (ii) "Family" for purposes of this scheme includes the following relatives of the officer :- (a) wife, in the case of a male officer; (b) husband, in the case of a female officer; (c) minor sons; and (d) unmarried minor daughters. Note 1. - (c) and (d) include children adopted legally before retirement. Note 2. - Marriage after retirement is not recognised for purposes of this scheme. Note 3. - A judicially separated wife/husband does not lose her/his legal status of wife/husband of the Government employee and is thus eligible for the benefit of the Family Pension Scheme, 1964. (iii) The pension is admissible :- (a) in the case of widow/widower upto the date of death or remarriage, whichever, is earlier; and (b) in the case of son/unmarried daughter until he/she attains the age of 25 years : Provided that an unmarried daughter will become ineligible for pension from the date she gets married : Provided further that the son/unmarried daughter shall become ineligible for pension if he or she starts earning livelihood. Note. - (i) Where an Officer is survived by more than one widow, the pension will be paid to them in equal shares. On the death of a widow, her share of the pension will become payable to her eligible minor child. If at the time of her death, a widow leaves no eligible minor child the payment of her share of the pension will cease. (ii) Where an Officer is survived by a widow but has left behind an eligible minor child from another wife, the eligible minor child will be paid the share of Civil Writ Petitions No.3932 & 3938 of 2002 6 pension which the mother would have received, if the had been alive at the time of the death of the officer. (iv) Except as provided in the Note below sub-para (iii) of this para, pension awarded under this scheme will not be payable to more than one member of an officer's family at the same time. It will first be admissible to the widow/widower and thereafter to the eligible minor children. (v) In the event of remarriage or death of the widow/widower the pension will be granted to the minor children through their natural guardian, if any, otherwise through their de facto guardian on production of indemnity bond, etc., on the analogy of the orders contained in F.D. circular letter No. 6837- (5) FR-1-61/8358, dated the 29th July, 1961. In disputed cases, however, payments will be made through a legal guardian (i.e. guardian appointed by court of law). The ad hoc increase granted under the Punjab Government circular letter No. 8206-6FR-I64/7668, dated 13th August, 1964, will not be admissible on the family pension granted under this scheme."

11. This Scheme will not be applicable to :- (a) Persons who retired before the 1st July, 1964 but may be re- employed on that date or thereafter; (b) Persons paid from contingencies; (c) Work-charged staff; (d) Casual labour; (e) Contract Officers; and (f) Persons who were in service in the composite State of Punjab prior to 1st November, 1966 and came over to Haryana State on or after 1st November, 1966 or those who have been recruited by the Haryana Government on or after 1st November, 1966, without a minimum service of five years in the Haryana State’." Civil Writ Petitions No.3932 & 3938 of 2002 7 Furthermore, the Division Bench in its judgment also noticed contention of the respondents that widow of a daily-wager is not entitled to pension. Considering the entire gamut of case law, the Division Bench observed as under: “10. It is, however, appropriate to note that the said rules provided for conditions for qualifications for the grant of pension to a government employee under the State Government. However, the 1964 Scheme is a complete independent scheme by itself and its provisions are applicable for the grant of benefit under the same and as already noticed above the same is provided for under Chapter-XV of the Punjab Civil Service Rules, as applicable in Haryana, Volume-II, Part-I. Therefore, the provisions of Rules 3.12 and 3.16(b) of the CSR, Volume-II, as referred to by the learned counsel for the State, are inapplicable. In the case in hand the provisions of the 1964 Scheme would be applicable. The learned counsel for the State then contended that in view of the judgment of the Hon'ble Supreme Court in Union of India v. Rabia Bikaner, 1997 (3) SCT 598 (SC) : AIR 1997 SC 2843, the petitioner is not entitled to the benefit of family pension. The question that was considered therein was whether a widow of a casual labourer in Railway Establishment who died after putting in six months service and obtaining the status of a temporary workman but before his appointment to a temporary post after screening is entitled to family pension under the Family Pension Scheme. A reference was made to para 211 of the Railway Establishment Manual wherein causal labourers with temporary status were entitled to certain entitlements and privileges granted to temporary railway servants but this did not entitle them to family pension. It was held that every casual labour employee in Railway Administration for six months was entitled to temporary status then they were empanelled and thereafter were required to be screened by the competent authority. They were appointed in order of merit as and when vacancy for temporary post in regular Civil Writ Petitions No.3932 & 3938 of 2002 8 establishment arose. On their appointment they were also required to put in minimum service of one year on temporary post. If any of those employees who had put in the required minimum service of one year, that too after the appointment on a temporary post, died while in service, his widow would be eligible for pension. In the said case though some of the deceased employees had been screened yet appointments were not given to them since temporary posts were not available or in some cases they were not even eligible for screening because the posts became available after their death. Under these circumstances, it was held, that the respondents-widows therein were not entitled for family pensionary benefits. Reliance was placed on the judgment of the Supreme Court in Ram Kumar v. Union of India, AIR 1988 SC 390, wherein the provisions of para 2511 of the Railway Establishment Manual were considered in terms of which no pensionary benefits are admissible to temporary railway servants and, therefore, retiral advantage is not available to casual labour acquiring temporary status. Therefore, the ratio of the judgment therein is in the context of para 2511 of the Railway Establishment Manual and is not applicable to the case in hand wherein in terms of para 3 of the 1964 Scheme the family pension Scheme is applicable to all regular employees on pensionable establishment - temporary or permanent - who were in service on 1.7.1964 or are recruited thereafter. It is admissible in case of death while in service or after retirement on or after 1.7.1964 and in case of death while in service a government employee should have completed a minimum period of one year of continuous service without break. In terms of Note-1 below para 4(i) it is provided that the term one year continuous service used in para 4(i) is inclusive of permanent/temporary service in a pensionable establishment. The establishment of the respondent Public Health Division indeed is a pensionable establishment and the petitioner has rendered five years continuous service in the said establishment. It is also appropriate to note that the Hon'ble Supreme Court in the case of work-charge Civil Writ Petitions No.3932 & 3938 of 2002 9 employee of the state of Haryana in case titled State of Haryana and others v. Ravinder Kumar and others, (Civil Appeal Nos. 5740-5741 of 1997) passed the following order on 31.10.2000 :- ‘Delay condoned in SLPs. These batch of cases were delinked while hearing another batch of appeals from the same State, which were disposed of by us by judgment dated 19th September, 2000. It is contended by the learned counsel appearing for the State that in these cases we are concerned with employees who had been engaged initially on work charge basis and later on they were regularized and brought into the cadre of the service. It is also not disputed by the learned counsel appearing for the State that this period which the employee has rendered as work charge basis for the purpose of the increment in the cadre as well as the qualifying service for the pension. We, therefore, see no justification in not counting their period for the purpose of giving additional increment on completion of 8 and 18 years of service as well as 10 and 20 years of service for getting higher scale as per the Government Circular, which obviously are intended to avoid stagnation in a particular grade. In that view of the matter, we see no justification for our interference with the impugned order of the Punjab and Haryana High Court. These appeals and SLPs, accordingly, stand dismissed.’ In the light of the above, it is evident that work charge service was given due consideration on regularisation. In the case in hand the work charge employee having died, there is no justification to decline the benefits of family pension under the 1964 Scheme to his widow.” Counsel for the respondent-State has failed to distinguish the judgment rendered in Usha Rani’s case (supra), but has stated that Civil Writ Petitions No.3932 & 3938 of 2002 10 compassionate appointment has been given to the petitioners in both the cases. Be that as it may, this Court is bound by the ratio of law propounded in Usha Rani’s case (supra). Civil Writ Petition No.3938 of 2002 Raj Kumar, husband of the petitioner Kamlesh Rani, was employed as a Beldar on work-charge basis by the Irrigation and Power Department of the Government of Punjab on 27th December, 1985. He continued to work with the department till 24th September, 1991, without any break. Raj Kumar died while in service after completing 5 years 8 months and 28 days service. Various representations were made by the petitioner-Kamlesh Rani for grant of family pension and pensionary benefits. As stated earlier, in view of the ratio of law laid down in Usha Rani’s case (supra), case of the petitioner is not different from that of Leela Devi and she is also held entitled to pension as per the scheme formulated by the State. With the observations made above, both the present petitions are hereby allowed. Needful shall be done within a period of three months from the date of receipt of a certified copy of this order. However, there will be no order as to costs. August 26, 2010 [KANWALJIT SINGH AHLUWALIA] JUDGE