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Rajasthan High Court · body

2007 DIGILAW 1789 (RAJ)

State of Rajasthan v. Kartiyani

2007-09-19

RAJESH BALIA, SANGEET LODHA

body2007
Rajesh Balia, J.—These two appeals are against the same order by two different departments of the State Government raising the same issue and are being heard and decided together. 2. These appeals are directed against the judgment of learned Single Judge dt. 13.08.1997 allowing the family pension to widowed mother of deceased incumbent Miss Vasanthi Kumari, who was working as Lady Health Visitor, at Primary Health Center, Swaroopganj, and died while in service on 19.08.1990 after having rendered qualifying service of 18 years 7 months and 22 days. She had entered in the service on 27.01.1972. The claim for family pension to the widowed mother of the deceased employee, having no other nearer persons surviving to family pension, had been rejected on the ground that under Rule 268D, the family pension to mother of the deceased Government servant is not admissible. 3. The learned Single Judge held that Section 268D cannot be read in isolation but has to be read with Sections 265 and 267 RSR, which were then in force, for the purpose of considering entitlement to family pension. Hence, this appeal. 4. The learned counsel for the appellant has urged by reading Rule 268D in isolation that since in the definition of family, mother has not been included, therefore, the mother is not entitled to family pension. He further urges that Rules 267 and 265 cannot be read because those rules are applicable only in case the incumbent has put on 20 years qualifying service at the time of his death or retirement for laying a claim to family pension after the death to the members of his family. Since it is a case of person dying while in service after 01.03.1964 in that event, the family pension is available even in case the deceased had only one year’s service to her credit. The pension is payable only under rule 268D read with Section 268A and not otherwise. 5. On the other hand, the learned counsel for the respondent-petitioner has supported the judgment under appeal. 6. The pension is payable only under rule 268D read with Section 268A and not otherwise. 5. On the other hand, the learned counsel for the respondent-petitioner has supported the judgment under appeal. 6. The petitioner has also challenged the validity of Rule 268D in his petition and has also reiterated his contention before us on the ground that non-inclusion of the parents in the list of dependent entitle to family pension even in absence of other members of the family or even in the case the incumbent is a bachelor and unmarried results in hostile discrimination in the matter of grant of pension to the dependent member of a deceased incumbent who had a long qualifying service to his credit and pension payable to him is not a bounty and is a reward or remuneration for service already rendered. It is now well settled that grant of pension to the Government servant is not a bounty but is a part of deferred remuneration. 7. If we look at the scheme of the Rajasthan Service Rules, Rule 260 has a significant bearing on the present controversy. It provides for nominations and for the purposes of nomination for receiving the benefits of service of the incumbent the family is defined to include the following relatives of the officer. (i) wife, in the case of a male officer. (ii) husband, in the case of a female officer. (iii) sons; (iv) unmarried and widowed daughters; (v) brothers below the age of 18 year and unmarried or widowed sisters; (vi) father, and (vii) mother. 8. The sons and unmarried and widowed daughters included step son or step daughter as the case may be. The definition of family for the purpose of nomination for receiving the benefits of pensionable service by the incumbent in case of his death remains unaltered and still applicable. No separate rule has been framed for the purpose of nomination by the incumbent to receive such benefits. 9. The definition of family for the purpose of nomination for receiving the benefits of pensionable service by the incumbent in case of his death remains unaltered and still applicable. No separate rule has been framed for the purpose of nomination by the incumbent to receive such benefits. 9. Rule 261 was the original provision for family pension at the inception of Rule 1950, Rule 261 provides that a family pension exceeding the amount specified in Rule 262 may be granted to the family of a Government servant in the event of his death after he has completed 25 years qualifying service for the following period:- (a) in the event of death of the Government servant while in service, the pension will be payable for the five years from the date following the date on which the officer dies. (b) in the event of death of the Government servant after retirement the pension will be payable for the unexpired period of five years from the date of retirement. 10. This provision was substituted in 1957 w.e.f. 01.04.1957 extending the period for which family pension was payable from 5 years to 10 years. This was further liberalised by the Government decision dt. 15.09.1960 that in case the family pension is drawn by widow or/minor children of the employee under the pension rules of the RSR as amended from time to time a period for which the family pension could be drawn by the widow or minor children were extended to the death of the widow or attaining the age of minor children or until marriage of the daughters and this was extended even to those Government servants, who had retired prior to 01.03.1964. 11.Rule 265 provided for the order in which the family pension shall be payable to a member of the family as defined for the purpose of nomination under Rule 260 while clause (a) dealt with the order of award of family pension amongst widow or children, clause (b) is of significance, which becomes operative only in case no one is available or no one beomes eligible to avail the benefit of family pension which reads as under:- “276(b) in the event of no pension becoming payable under clause (a) the pension may be granted- (i) to the father; (ii) failing the father, to the mother; (iii) failing the father and the mother to the eldest surviving brother below the age of 18; (iv) these failing, to the eldest surviving unmarried sister; (v) failing (i) to (iv), to the eldest surviving widowed sister.” 12.While under Rule 266 of Rules provided for nomination to whom the family pension is to be paid after his death. Chapter 23(A) was inserted vide notification dt. 25.09.1964 and became effective from 01.03.1964 under the heading “New Family Pension” and it applied to all Government servants on pensionable establishment whether temporary or permanent, who were in service on the first day of March, 1964 or who enters service on or after that date but did not apply to the person, who retired before first day of March, 1964. The family pension was admissible to the family of an officer, who dies on or after 01.03.1964. The daughter of the petitioner undoubtedly fell amongst the category of persons appointed in the Government service to a pensionable service after first day of March, 1964 in terms of Rule 268A and was admitted to the family pension in terms of Rule 268D. The family pension amount is to be determined under the Rules that followed Rule 268D. We are not concerned with the determination of amount of the family pension payable. 13.Rule 268D, which reads as under:- 268D. Definition: “Family”, for the purpose of this Chapter, will include the following relations of the officer:- (a) wife, in the case of male officer; (b) husband, in the case of a female officer; (c) minor sons; and (d) unmarried minor daughters.” NOTES (1) (c) and (d) will include children adopted legally before retirement. 13.Rule 268D, which reads as under:- 268D. Definition: “Family”, for the purpose of this Chapter, will include the following relations of the officer:- (a) wife, in the case of male officer; (b) husband, in the case of a female officer; (c) minor sons; and (d) unmarried minor daughters.” NOTES (1) (c) and (d) will include children adopted legally before retirement. (2) Marriage after retirement will not be recognised for the purpose of this rule.” 14.We may notice here that so far as clause (2) of note is concerned it has been held to be ultra vires by a Bench decision of this Court as having no nexus with the purpose sought to be obtained by making such provision. Notwithstanding the insertion of Chapter 23(A), the Chapter 23 itself had not been repealed nor it has altogather been made inoperative. We have already noticed above one of the area in which the provisions continues to operate is the nomination. No separate provisions for nomination had been made under Chapter 23(A), a mother therefore can be valid nominee to receive any benefit extended to an incumbent under the Rules. This gives an indication that keeping in view the object of liberalised scheme of family pension to the extent no specific provision has been made in respect of field covered by Chapter 23 and which is in consonance with object of the Constitution in providing the assistance to the dependents of a Government servant by making provision for pension, the same provision must be held to be continued to remain in force. So far as the Chapter 23(A) is concerned, it has liberalised the scheme of family pension in the sense that the benefit of family pension has been extended to the dependents of incumbent holding pensionable post even if he dies only one year after serving the pensionalbe post notwithstanding that he has not completed minimum qualifying service for earning admittance to the pension as was the condition in the old family pension scheme under Chapter 23. There is no indication in Chapter 23A that already existing benefits to the extent no provision has been made were intended to be withdrawn. There is no indication in Chapter 23A that already existing benefits to the extent no provision has been made were intended to be withdrawn. 15.If that so, there being no provision for the contingency in which there is no surviving spouse or children of the incumbent, who are the enumerated person in Rule 168D in giving an inclusion and not an exhausting definition of family, the alternative envisaged under clause (b) of Rule 265 spring into operating clause (b) of Rule 265 is couched only to cover such contingency under original family Pension Scheme. It mandates that in case no pension becomes payable under clause (a) it may be granted (i) to the father, (ii) failing the father, to the mother, (iii) failing the father and the mother to the eldest surviving brother below the age of 18, (iv) these failing, to the eldest surviving unmarried sister and failing (i) to (iv), to the eldest surviving widowed sister. 16.Looking to the scheme of the pension, it cannot be assumed that a bachelor or unmarried Government servant or widow of the Government servant has not been admitted to the benefit of family pension. 17.Further evidence to this effect is that under Chapter 23 in the absence of surviving spouse and/or children the next kith and kin from the parent side have been included for the purpose of getting family pension and it is only on the failure of a surviving spouse or the children of deceased that they have been admitted to the family pension. 18.We may notice that thus reading of the provision in totality under RSR Rule, 268D and the schedule of family pension under Chapter 23A is saved from vice of discrimination founded on marital status of the Government employee which prima facie does not appear to have any rational nexus to the object sought to be achieved by such classification. If the provision is read as suggested by the appellant is admitted to the benefit of family pension for dependent unmarried Government servant aged parents left behind him. This is certainly is not the object of Chapter 23A. 19.We, therefore, hold that clause (b) of Rule 265 having not been repealed and its exclusion cannot be assumed. If the provision is read as suggested by the appellant is admitted to the benefit of family pension for dependent unmarried Government servant aged parents left behind him. This is certainly is not the object of Chapter 23A. 19.We, therefore, hold that clause (b) of Rule 265 having not been repealed and its exclusion cannot be assumed. In the totality of the scheme it has to be read as part of scheme of the family pension and if that is so on the admitted facts that the deceased incumbent Vasanthi Kumari died in unmarried status leaving only her mother, father having died in 1986, four year before her own death, became entitled to claim family pension under the Rules of 1950. 20.We, therefore, are in agreement with the learned Single Judge that the petitioner-respondent was entitled to family pension under the Rules. No interference is called for in the appeal. The appeal is accordingly dismissed. The claim to the family pension by the petitioner may be decided by the appellant within 3 months from the date of receipt of this judgment. * * * * *