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2008 DIGILAW 1719 (PNJ)

Rajbala v. State Of Haryana

2008-10-04

AUGUSTINE GEORGE MASIH, MEHTAB S.GILL

body2008
Judgment Augustine George Masih, J. 1. The petitioner through this writ petition is seeking directions to the respondents to grant and release family pension to her along with all consequential benefits. 2. The petitioner is widow of Late Shri Raj Kumar, an employee of the Department of Public Health, who was appointed as a Sewerman on daily wage basis in April, 1993. He continued to work as such when he unfortunately expired on 11.4.2002 while performing his duties. At that time, he had completed 9 years of continuous service without any break with the respondent-Department on the death of her husband, the petitioner preferred a representation requesting therein for grant of family pension as per the Family Pension Scheme, 1964 as contained in Appendix I in Chapter XV of the Punjab Civil Service Rules {as applicable to Haryana) Vol. II part I (hereinafter referred to as the 1964 Scheme). When no response was received from the department, the petitioner through her counsel gave a notice on 19.6.2005 claiming therein family pension as per the 1964 Scheme. Thereafter, the petitioner filed Civil Writ Petition No. 10978 of 2005 titled as Rajbala vs. State of Heryana and others vide order dated 21.7.2005, the said writ petition was disposed of with a direction to the respondents to consider the legal notice and pass a speaking order thereon. In compliance to the orders passed by this Court, the order dated 7.1.2006 (Annexure P-2) was passed by the Executive Engineer, Public Health, Division No.2, Sonepat-respondent No. 4 whereby the claim of the petitioner was rejected on ihe ground that as per Rule 3.12 of Vo. II of the Punjab Civil Service Rules (as applicable to State of Haryana), her husband-deceased Raj Kumar did not fulfill the conditions being a daily wage employee. The said order dated 7.1.2006 (Annexure P-2) has now been challenged by the petitioner on the ground that she is entitled for the grant of family pension as per the 1964 Scheme. It has further been submitted that this Court in case of Usha Rani vs. State of Haryana, SCT 2005(1) 410 (P&H) which was also a case of daily wage employee, while considering thel 964 Scheme, ordered for grant of the family pension. The case of the petitioner is squarely covered by this judgment. 3. It has further been submitted that this Court in case of Usha Rani vs. State of Haryana, SCT 2005(1) 410 (P&H) which was also a case of daily wage employee, while considering thel 964 Scheme, ordered for grant of the family pension. The case of the petitioner is squarely covered by this judgment. 3. Upon notice having been issued, the respondents have put in appearance and have submitted that since the husband of the petitioner was engaged as a daily rated employee as per the requirement of the site/work, the claim of the petitioner is not covered under the 1964 Scheme. It is further contended that the petitioner had submitted her claim under the Workmen Compensation Act and the Commissioner under the Workmen Compensation Act, Sonepat, has allowed the claim forasum of Rs. 3185 lacs. The said amount has been deposited by the respondents before the Commissioner at Sonepat. 4. We have heard counsel for the parties and with their able assistance, have gone through the pleadings. 5. For deciding the issue as to whether the petitioner is entitled to the grant of family pension under the 1964 Scheme, the provisions of the Scheme need to be looked into. Relevant portion of the Scheme as contained in Paras 3,4, 10 and 11 reads as under: 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. Wore 1. 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. Wore 1. The term one year continuous service used in Para 4{j) above is inclusive of permanent/temporary service in a pensionable establishment but does not include periods of extraordinary leaves, boy 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 Authority and declared fit by that authority for Government service. xxx xxx xxx xxx xxx xxx xxx xxx xxx 10. Widows/Widowers of such Government employees as are governed by this Scheme will not be entitled to family pension under any other rules. 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. 6. A perusal of the above would show that the Scheme is applicable to an employee who is a regular employee on a pensionable establishment. The service may be temporary or permanent but the Government employee should have completed a minimum period of one year of continuous service without break. Para 11 of the Scheme clearly spells out the categories of employees to whom this Scheme will not be applicable, Clause of this paragraph refers to the employee who belongs to the category of casual labour. The husband of the petitioner who was engaged as a daily-rated employee as per the requirement of the site/work, therefore, falls in the category of casual labour. The husband of the petitioner who was engaged as a daily-rated employee as per the requirement of the site/work, therefore, falls in the category of casual labour. In view of above-stated Para 11 of the 1964 Scheme, this Scheme would, thus, not be applicable to the case of the husband of the petitioner and therefore, the claim of the petitioner cannot be accepted. 7. The contention of the counsel for the petitioner that the case of the petitioner is covered by a judgment of this Court in Usha Ranis case (supra) can also not be accepted in view of the specific provisions as contained in Para 11 of the 1964 Scheme as no relief can be granted which is contrary to the Statute under which such claim is made. 8. Counsel for the respondent has, however, relied upon a judgment of the Honble Supreme Court in the case of Uttar Haryana Bijli Vltaran Nigam Ltd. and others vs. Surji Devi, AIR 2008 SC 1114 to contend that sentiments and sympathy alone cannot be a ground for taking different view for what is impermissible in law. The statutory provisions debar grant of family pension in favour of family members as the deceased employee was an employee belonging to the category of casual labour and therefore, not entitled to the family pension. Counsel has referred to Para 14 of the said judgment and submitted that the Scheme relating to grant of family pension was made under a Statute. A person would be entitled to the benefit thereof subject to the statutory interdicts. From a bare perusal of the provisions contained in the Punjab Civil Service Rules , Volume II vis-a-vis the family pension Scheme, it would be evident that the petitioner is not entiled to grant any family pension. 9. After giving our thoughtful consideration to the whole matter, we are of the view that the grant of family pension is a statutory right. To claim such statutory right, a person should fulfill the requirements of the statute. No exception to the Rule can be made. A lenient view may be taken while giving effect to the intention and purpose of the Statute but specific provisions debarring the grant of such benefit under the Statute cannot be overlooked. To claim such statutory right, a person should fulfill the requirements of the statute. No exception to the Rule can be made. A lenient view may be taken while giving effect to the intention and purpose of the Statute but specific provisions debarring the grant of such benefit under the Statute cannot be overlooked. In the present case, Para 11 of the 1964 Scheme specifically states that this claim will not be applicable to, as per Clause d, casual labour, to which category the husband of the petitioner belonged at the time of his unfortunate death. Therefore, the petitioner is not entitled to the family pension under the 1964 Scheme. It would not be out of way to mention here that the petitioner has been granted a claim of Rs. 3.85 lacs by the Commissioner under the Workmen Compensation Act which has since been released to the petitioner. In the light of the above, we do not find any merit in this petition and dismiss the same. Petition dismissed