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Rajasthan High Court · body

2006 DIGILAW 1251 (RAJ)

Union of India v. Kaushalya (Smt. )

2006-04-20

R.P.VYAS

body2006
Judgment Rajesh Balia, J.-Heard learned Counsel for the petitioners. This petition is directed against the order of Central Administrative Tribunal, Jodhpur Bench, Jodhpur dated 23.01.2006. 2. Brief facts leading to this petition are that one Shri Patwari Ram was appointed as Mazdoor in the office of Petitioner No. 2 on 010.1993 at Bikaner. He was given status of temporary employee on 10.09.1996. Said Shri Patwari Ram died in harness on 12.01.2004. 3. Pursuant to the aforesaid unfortunate death of Patwari Ram, the respondent-original applicant Smt. Kaushalya widow of Shri Patwari Ram claimed the family pension and other terminal benefits under the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as the “Rules, 1972”), but her request was turned down vide order dated 04.03.2005, which led to filing of Original Application No. 179/2005. 4. By the impugned Judgment , the original application was allowed by holding that since incumbent Shri Patwari Ram was holding a temporary status in service, therefore, applicant is entitled to family pension and other terminal benefits. In coming to this conclusion, the Tribunal relied on its earlier decision in Original Application No. 219/2003 Smt. Santosh vs. ICAR & Anr., decided on 19.08.2004 writ petition against which was dismissed by this Court on 21.02.2005 D.B. Civil Writ Petition No. 1038/2005 ICAR & Anr. vs. Smt. Santosh. 5. Learned Counsel for the petitioners have urged that in the case of Smt. Santosh, the deceased was governed by other set of rules, whereas, as per the rules applicable in the case of deceased Patwari Ram, the applicant is not entitled to any pensionary benefits. 6. Attention was invited to a circular dated 06.06.2002 of Department of Personnel and Training regarding Casual Labourers (Grant of Temporary Status and Regulation) Scheme promulgated by the petitioners, which came into force w.e.f. 01.09.1993. According to learned Counsel for the petitioners, deceased Patwari Ram was accorded temporary status under the said scheme and under this scheme benefit of pension was not extended to persons who have been conferred temporary status. 7. However, it is not disputed that eligibility to retiral benefits including family pension is governed by the Rules of 1972. According to learned Counsel for the petitioners, deceased Patwari Ram was accorded temporary status under the said scheme and under this scheme benefit of pension was not extended to persons who have been conferred temporary status. 7. However, it is not disputed that eligibility to retiral benefits including family pension is governed by the Rules of 1972. While Rule 2 of the Rules, 1972 states that “save as otherwise provided in these rules, these rules shall apply to Government Servants including civilian Government servants in the Defence Services, appointed substantively to civil services....” Government of India in 1983 had extended the benefit of pension to its temporary employees also. Vide its order dated 14.04.1987, which has been made available to us the Government extended the terminal benefits and death benefits in the event of death in harness to temporary/quasi permanent Government servants and their families with reduced period of qualifying service as in the case of permanent employees. 8. It was envisaged in Clause (1) that it has been decided that Government servant, who on his retirement from service on attaining the age of superannuation or on his being declared to be permanently incapacitated for further Government service after he has rendered temporary service of not less than 10 years shall be brought within the purview of C.C.S. (Pension) Rules 1972 and the condition of holding a pensionable post in a substantive capacity shall be dispensed with in his case. Consequently, such a Government servant will be eligible for the grant of superannuation or invalid pension, death-cum-retirement gratuity and family pension in accordance with the provisions of the aforesaid rules. Under Clause (2) of the Notification No. G.O.I. O.M. No. 02/04/87 PIC, dated 14.04.1987, Government of India directed that pursuant to Government decisions on the recommendations of the fourth Central Pay Commission announced in the departments Resolution dated 18.03.1987, the earlier notification in that regard dated 30.12.1980 was modified. In the first instance, it was stated that quasi permanent and temporary employees, who retire on superannuation or on being declared permanently incapacitated for further Government service after having rendered temporary service for not less than 10 years, shall be eligible for grant of superannuation/invalid pension, retirement gratuity and family pension at the same scale as admissible to permanent employees under the CCS (Pension) Rules, 1972. Thus, at par with the permanent employees, the minimum qualifying service for earning pension by a temporary employee retiring from service on completion of superannuation or on being declared permanently incapacitated for further Government service was reduced from 20 years to 10 years. Under Clause (3) of the said circular, it was envisaged that in the event of death in harness of temporary/quasi-permanent Government servants their families shall be eligible to family pension and death gratuity on the same scale as admissible to families of permanent Government servants under the CCS (Pension) Rules, 1972. 9. Apparently, the above decision of the Government taken way back in 1987 leaves no room of doubt that notwithstanding conditions of Pension Rules, 1972 as originally promulgated, though applied only in respect of Government servants holding pensionable posts in substantive capacity, were dispensed with in the case of temporary employees also, and benefit of Rules of 1972 were extended to temporary employees, who have been in continuous service for the prescribed period by treating them to be holding a pensionable post and keeping them at par with the permanent employees in the matter of securing terminal benefits. 10. Under the scheme relied on by the learned Counsel for the petitioners, there is noting to suggest that the casual labourers, who have been conferred with temporary status in the service would not be entitled to the pensionary benefits as temporary employees of the Central Government is entitled to. Significantly, Sub-para (vi) of Clause (5) of the Scheme referred to by the learned Counsel for the petitioners, which has been relied on by the Tribunal, makes it abundantly clear that after rendering three years continuous service after conferment of temporary status, the casual labourers would be treated at par with temporary Group D employees for the purpose of contribution to the General Provident Fund, and would also further be eligible for the grant of Festival Advance/Food Advance on the same conditions as are applicable to temporary Group D employees. Obviously, this clause applies only by treating them as temporary Group D employees for the purpose of certain benefits while in service. Clause (VI) does not relate to the benefit which otherwise is available to the temporary employees under the Pension Rules, as that was not the subject matter of the scheme itself . 11. Obviously, this clause applies only by treating them as temporary Group D employees for the purpose of certain benefits while in service. Clause (VI) does not relate to the benefit which otherwise is available to the temporary employees under the Pension Rules, as that was not the subject matter of the scheme itself . 11. As a matter of ordinary course, unless anything repugnant, once the incumbent is entertained into the field of temporary employees, while in service, past service period has to be governed by Rules of 1972 in relation to family pension and other terminal benefits. 12. Once the casual labourers were held entitled to temporary status in service and they were deemed to be at par with Group D employees in the matter of allowances and benefit of G.P.F., leaves no room of doubt that on being conferred with temporary status under the aforesaid rules, casual labourers become temporary employees of the Government and in terms of the Government decision, referred to above, they become eligible to terminal benefits in accordance with the Pension Rules. 13. The fact that by subsequent clarification dated 06.07.2002 that conferment of temporary status on casual labourers would not involve any change in their duties and responsibilities and also envisaging that under the original scheme their services were liable to be terminated at any time by either side, does not militate against the position that their status was changed from casual labourers to employees of temporary status. So far as the question of extending benefits to the employee of temporary status in service after he ceases to be in service is not the part of the scheme but follows the status as per rules. Therefore, treatment to a person, who retires from service or dies in service as a temporary employee, is dependent on the provisions which have been extended to temporary employees of the Central Government which is not restricted or prohibited by any clause of the Scheme of 1993. Operation of the Rules of 1972 in respect of employees holding temporary status in service follow on its own force as a subject on which statutory provision operates. 14. There is no denial of the fact that under the Rules of 1972, a person holding a pensionary post in substantive capacity, if dies in harness, in terms of Rule 54, is entitled to family pension. 14. There is no denial of the fact that under the Rules of 1972, a person holding a pensionary post in substantive capacity, if dies in harness, in terms of Rule 54, is entitled to family pension. As noticed above, temporary employees have also been provided same benefit by dispensing with the condition of holding pensionary post on substantive capacity under the Central Government. Therefore, Rule 54 of the Rules, 1972 operates in the case of temporary employees of the Central Government also, which, undoubtedly, the deceased incumbent Patwari Ram was. Rules 54(2) envisages that without prejudiced to the provisions contained in Sub-rule (3), where a Government servant dies after completion of one year of continuous service or after retirement from service and on the date of death in receipt of pension, the family of the deceased shall be entitled to family pension under the Rules of 1964. The amount shall be determined in accordance with the table given under it. Apparently, there is no dispute about the fact that deceased Patwari Ram died after completion of one year of continuous service in temporary status. 15. In that view of the matter, shorn of all other details with which we are not concerned, the Tribunal was right in its conclusion that respondent original applicant was entitled to family pension in terms of Rule 54(2) of the Rules, 1972, benefit of which has been extended to temporary employees by dispensing with the condition that the incumbent must be holding pensionary post in substantive capacity. 16. We, therefore, find no merit in this writ petition, the same is hereby dismissed. Petitioners shall give effect to the directions issued by the Central Administrative Tribunal by determining the family pension within three months from the date of this order, if the directions have not already been complied with.