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2013 DIGILAW 15 (CHH)

INDU SINGH v. STATE OF C. G.

2013-01-04

Manindra Mohan Shrivastava

body2013
ORDER 1. Heard. 2. The petitioner, unfortunate widow of the deceased employee has prayed for quashing order dated 02/08/95 (Annexure P/13), by which proposal for grant of regular appointment of her late husband has been rejected. The petitioner has further prayed for direction to release family pension in her favour along with interest. 3. Quintessential facts necessary for decision of the controversy involved in the writ petition are that the petitioner's husband - Amar Deo Singh Rathore was appointed as Coup-Guard and posted in the office of Divisional Forest Officer (Production), Forest Division, Dhamtari vide order dated 14/05/80 (Annexure P/1). He was selected and sent for training as Forest Guard vide order dated 07/09/82 (Annexure A/2). After completion of training, vide training completion certificate dated 26/02/83 (Annexure P/6), he again joined and vide order dated 06/01/84 (Annexure P/7), the petitioner's husband was granted D.A. On 13/09/85, Amar Deo Singh was murdered during duty hours. 4. The petitioner/widow was granted compassionate appointment in the year 1986. Later on, the petitioner claimed that she is entitled to family pension also and representations to this effect were also made. Vide memo dated 06/09/88 (Annexure P/9), Conservator of Forest required the Divisional Forest Officer (DFO) to forward the case of the petitioner. In response, the DFO sent memo dated 03/10/88 (Annexure P/10) informing the Conservator of Forest that the deceased employee was not regularized on the post of Coup Guard and later on, as he successfully completed training, Ex Post Facto sanction for grant of regular appointment may be granted. Vide memo dated 21/03/90 (Annexure P/12), the petitioner was informed by the DFO that petitioner's case has been forwarded, however, vide impugned order dated 02/08/95 (Annexure P/13), the State Government rejected the proposal to grant regular status to the deceased employee. The petitioner lastly submitted representation dated 20/09/01 vide Annexure P/14, which failed to evoke any response. Finally the petitioner approached this Court by filing this petition. 5. Learned counsel for the petitioner submitted that the petitioner is entitled to family pension, she being the widow of a Government Servant. Learned counsel for the petitioner submits that even though the petitioner's husband had successfully completed training, order of regular appointment was not issued and petitioner's husband met with unfortunate death as he was murdered while on duty. 5. Learned counsel for the petitioner submitted that the petitioner is entitled to family pension, she being the widow of a Government Servant. Learned counsel for the petitioner submits that even though the petitioner's husband had successfully completed training, order of regular appointment was not issued and petitioner's husband met with unfortunate death as he was murdered while on duty. According to him, as the deceased employee had successfully completed training, he was entitled to be given regular appointment which has been illegally rejected vide impugned order dated 02/08/95. The next submission of learned counsel for the petitioner is that even though the husband of the petitioner worked for a short time, as he was employed and worked as Government Servant in the services of the Government, benefit of family pension should have been extended to the petitioner. 6. Per contra, submission of learned counsel for the State is that the husband of the petitioner was employed on a fixed pay as Forest Coup Guard w.e.f. 14/05/80 and was sent for training also. He was not a regular employee but was given employment under the lowest time scale of Rs. 400-555/- and even though D.A. was being paid, he was not entitled to regular status. Learned counsel for the State also submitted that the petitioner's husband was not accorded sanction for grant of regular pay scale w.e.f. 01/04/81 but only minimum Rs. 400/- vide order dated 06/01/84 (Annexure R-1/1). As the employee died on 13/09/85, which was less than five years of service, in view of the provisions contained in Rule 43 and 44(1) of the C.G. Civil Services (Pension) Rules, 1976, (hereinafter referred to as 'Pension Rules of 1976'), no pension of any nature is admissible. Therefore, the petitioner is also not entitled to family pension. Learned State counsel further submits that the minimum qualifying service required to earn DCRG and family pension is five years and seven years respectively as per Rule 45 and 47(1) of the Pension Rules, 1976. He submits that proposal for grant of regular appointment was rightly rejected keeping in view that the petitioner has already died. Therefore, the petitioner is not entitled to family pension. 7. He submits that proposal for grant of regular appointment was rightly rejected keeping in view that the petitioner has already died. Therefore, the petitioner is not entitled to family pension. 7. Grant of family pension to the family members of a Government Servant who died while in service, is governed and regulated by the provisions contained in C.G. Civil Services (Pension) Rules, 1976 (for short 'Pension Rules of 1976'), framed by the Governor in exercise of powers conferred under the proviso to Article 309 of the Constitution of India. Rule 3 (1) (e) defines family pension to mean contributory 'Family Pension' admissible under Rule 47 and includes non-contributory family pension admissible under Rule 48. 'Pension' has been separately defined under 3(1)(n) to include gratuity except when it is used in contra distinction to gratuity. Therefore, under the rules, family pension is not one and the same thing as pension. Sub-rule 1 of Rule 5 of the Pension Rules of 1979 provides- "Any claim to pension/gratuity or family pension shall be regulated by the provisions of the rules in force at the time when a Government Servant retires or is retired or is discharged or is allowed to resign from service or dies, as the case may be." Classes of pensions and conditions governing their grant are regulated by provisions contained in Chapter V of the Pension Rules. Rule 43 (1) provides for grant of pension and gratuity depending upon the period of qualifying service. Rule 44 regulates grant of death-cum-retirement gratuity. It provides inter alia that a Government Servant, who has completed five years qualifying service and has become eligible for service gratuity or pension under Rule 43, shall be granted DCRG upon his retirement to the extent provided in the provision. In the case of death after completing five years qualifying service, DCRG is payable. 8. However, under the statutory scheme of rules, grant of family pension, in contra distinction to scheme of pension and gratuity, is regulated by the provisions contained in Rule 47 and 48 which relate to contributory family pension and non-contributory family pension respectively. In the case of death after completing five years qualifying service, DCRG is payable. 8. However, under the statutory scheme of rules, grant of family pension, in contra distinction to scheme of pension and gratuity, is regulated by the provisions contained in Rule 47 and 48 which relate to contributory family pension and non-contributory family pension respectively. Rule 47 (1) provides that the provision shall be applicable to a Government Servant entering services in a pensionable establishment on or after 01/04/66 and also to a Government Servant who was on service on 31/03/66 and came to be governed by the provisions of family pension scheme for a State Government employees, 1966 as per finance department memo dated 17/8/66. Rule 47(2) provides that where a Government Servant dies while in service provided he had been medically examined and found fit for appointment under the Government, the family of the deceased shall be entitled to a contributory family pension, the amount of which shall be determined as per the chart reproduced under the provisions. 9. A conjoint reading of provisions contained in sub rule 1 and 2 of Rule 47 would reveal that where a Government Servant dies while in service, his family will be entitled to contributory family pension. The only condition is that the Government Servant has been medically examined and found fit for appointment under the Government. It is important to note that none of the provisions contained in Rule 47 provide that family pension would be payable only in those cases, where the Government Servant had either become eligible for pension upon completion of minimum 10 years of qualifying service or had become eligible for gratuity upon completion of five years of qualifying service. In other words, grant of family pension is neither governed nor controlled by the provisions relating to eligibility to get pension or gratuity. While pension is payable to a Government Servant, family pension is payable only in the circumstances, where a Government Servant dies either while in service or after retirement from service. 10. The scheme of the Pension Rules of 1976 shows that distinct and separate provisions, independent from each other, have been made governing entitlement of pension, gratuity on one hand and that of family pension on the other. 10. The scheme of the Pension Rules of 1976 shows that distinct and separate provisions, independent from each other, have been made governing entitlement of pension, gratuity on one hand and that of family pension on the other. There is no other provision in the rule which either expressly or by necessary implication provides that family pension would be admissible to the eligible family member of the deceased only when the deceased employee had completed five years of qualifying service before his death. The preconditions and qualifications, on which the Government Servant becomes entitled to gratuity or pension, have no correlation with the entitlement for grant of family pension to eligible member of the family of the deceased. Once the conditions prescribed in Rule 47(1) and (2) are fulfilled, eligible member of the deceased Government Servant is entitled to family pension, whether or not the deceased employee had completed five years of service before his death. There is no reason for this Court to import those conditions for the purposes of grant of family pension. 11. Grant of pension, gratuity, family pension are attributes of public employment providing for benefits either to a Government servant or to the family of the Government Servant. The provisions are beneficent in nature. Therefore, the provisions of Rule 47 have to be interpreted in a manner which advances the object of legislation and not in a manner so as to thwart it or unnecessarily restrict its operation, applying cardinal rule of statutory interpretation in the matter of interpretation of beneficent legislations. 12. In the present case, there is no scope for application of provisions contained in Rule 48 which relates to non-contributory family pension because its applicability is restricted only to such Government Servant who was in service on 31/03/66. The facts of the case which are not in dispute are that the petitioner was appointed in Government Service as Coup Guard, vide order dated 14/05/80. He was also sent for training which he successfully completed in the year 1983. Thereafter, vide order dated 06/01/84, his pay was fixed at the minimum pay scale of Rs. 400-555/- w.e.f. 01/04/81. It is borne out from the pleadings and documents that before death of the employee, the order of regular appointment could not be issued, though upon successful completion of training, the deceased employee was entitled to be granted regular appointment. Thereafter, vide order dated 06/01/84, his pay was fixed at the minimum pay scale of Rs. 400-555/- w.e.f. 01/04/81. It is borne out from the pleadings and documents that before death of the employee, the order of regular appointment could not be issued, though upon successful completion of training, the deceased employee was entitled to be granted regular appointment. A recommendation to this effect was also made on 02/08/88 by the Divisional Forest Officer, which finds mentioned in memo dated 03/10/88 addressed to the Director General Forest, Madhya Pradesh, Bhopal (Annexure P/10), however, the Government vide impugned order, rejected the proposal, without recording any reasons whatsoever. Even in the return, no reasons have been assigned as to why regular status could not be granted ex-post facto even though the deceased has successfully completed and granted minimum of pay scale. The order of the State Government therefore is clearly arbitrary and illegal and therefore the order dated 02/08/95 (Annexure P/13) is set aside. The State shall issue necessary order granting Ex Post Facto sanction for regular status to deceased employee and thereafter, claim for grant of family pension shall be expeditiously processed so that the petitioner gets family pension w.e.f. due date. Necessary exercise shall be completed within a period of four months from the date of receipt of copy of this order and the arrears of family pension shall also be paid within the said period to the petitioner. The petition is accordingly allowed. No order as to costs. Petition Allowed.