Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 909 (MP)

Girja Devi Mishra v. State of M. P.

2015-08-31

K.K.TRIVEDI

body2015
ORDER : K.K. Trivedi, J. The petitioner, a widow of Government Teacher has approached this Court by way of filing this petition under Article 226 of Constitution of India, seeking a direction for payment of family pension and a writ of certiorari for quashment of the order impugned dated 08.07.2009. The relief claimed in the writ petition reads thus:- "i. Impugned order dated 08.07.2009 (Annexure P/15) issued by the respondent No. 4 be set aside; ii. The petitioner be granted such other relief to which they may be found entitled to under the facts and circumstances of the case." 2. It is the contention of the petitioner that her husband was in the service of the School Education Department of Government of M.P. and was working on the post of Teacher. He attended the school up to the month of November, 1971, and thereafter, absented himself from the duty presumably because he was suffering from the ailment of mental disorder. However, the fact remains that no action whatsoever was taken by the State authorities against the husband of the petitioner on account of his absent from the duty at the relevant time. In terms of the recorded date of birth of the husband of the petitioner in the service record, he attained the age of superannuation on 31.12.1991. Even when the husband of the petitioner has not joined the services but after attainment of the age of superannuation, since no payment of service duties was made to him, on his behalf the petitioner has approached the M.P. Administrative Tribunal by filing O.A. No. 1900/1997. 3. In the aforesaid Original Application, as is discerned from the order passed on the said matter, it appears that the petitioner was claiming relief of regularization of the period of absence of the husband of the petitioner, and payment of salary etc. The said Original Application remained pending before the Tribunal and when the said Tribunal was closed under the orders of the competent authority the pending Original Applications were transferred to this Court and on transfer the Original Application of the petitioner was registered as W.P. No. 11588/2003. The said claim was decided by this Court vide order dated 19.04.2004. 4. From the order placed on record as (Annexure P/13), it appears that the fact relating to the death of husband of the petitioner was brought to the notice of the Court. The said claim was decided by this Court vide order dated 19.04.2004. 4. From the order placed on record as (Annexure P/13), it appears that the fact relating to the death of husband of the petitioner was brought to the notice of the Court. In fact the husband of the petitioner had died on 7th February, 1999. It further appears that in view of the aforesaid circumstances, the reliefs were moulded and the said writ petition was disposed in the following manner:- "It is not the case where order was passed by the respondents terminating the service of Shri Mahadev Prasad Mishra. His date of superannuation was 31.12.1992. In the circumstances, respondents are directed to examine the question whether Shri Mahadev Prasad Mishra had gone mad, thus, could not attend the duty from December, 1972 till the date of superannuation. Question be also gone into whether the petitioner is entitled for GPF, Gratuity and other retiral benefits which may be admissible. Case of the petitioner be also examined whether she is entitled for the family pension. Let the consideration be made and appropriate order be passed within four months from today. Petitioner to file detailed representation within four weeks from today supported by the documents. In case any pecuniary benefits are found to be admissible, same be released within two months from the date of passing of the order by respondents. Writ petition is disposed of with the above direction. Parties to bear their own costs as incurred." The petitioner thereafter has made the representation and now since the representation has been rejected, therefore, the present writ petition is required to be filed. 5. Contesting the claim made by the petitioner, a return has been filed by the respondents stating that the order was passed keeping in view the provisions of M.P. Civil Services (Pension), Rules, 1976 (herein after referred to as 'Rules' for brevity), and it has been found that the husband of the petitioner had not completed requisite years of service so as to become entitled to receive any pension from the State Government. Since husband of the petitioner was not entitled to grant of pension, there was no question of granting any family pension to the petitioner. It is thus contended that rightly the order has been passed and the claim of the petitioner has been rejected by the impugned order in appropriate manner. Since husband of the petitioner was not entitled to grant of pension, there was no question of granting any family pension to the petitioner. It is thus contended that rightly the order has been passed and the claim of the petitioner has been rejected by the impugned order in appropriate manner. It is mentioned in the return that in fact the husband of the petitioner had completed hardly 15 years and 9 months service which was not the qualifying service for the purpose of grant of pension. Thus, it is contented that the writ petition is liable to be dismissed. 6. Heard learned counsel for the parties at length and perused the record. 7. The moot question which is to be decided in the present proceedings is whether the order passed by the respondents can be said to be in-consonance to the direction issued by this Court in W.P. No. 11588/2003 on 19.04.2004 or not. As has been pointed out the specific direction contained in the operative part of the order aforesaid was that since there was no order of termination of the services of husband of the petitioner from the date of his alleged un-authorized absence till the date of his superannuation, first of all, it was required to be examined by the respondents whether in fact on account of mental disorder the husband of the petitioner had stopped attending the duties or not. If he had gone mad there was no question of his attaining the duty. The another question which was required to be decided was whether the petitioner would be entitled to the payment of GPF and gratuity amount and all other retiral benefits admissible under the rules to the late husband of the petitioner or not. It was to be considered whether in such circumstances, still she was entitled to grant of family pension or not. 8. The order impugned nowhere indicates that all these questions were decided by the competent authority. If no enquiry was conducted by the respondent-District Education Officer, Satna regarding the mental health of the husband of the petitioner, how he could record the fact that on account of such mental condition the husband of the petitioner has not attended the duty after 31st October, 1971. If no enquiry was conducted by the respondent-District Education Officer, Satna regarding the mental health of the husband of the petitioner, how he could record the fact that on account of such mental condition the husband of the petitioner has not attended the duty after 31st October, 1971. Only this much was recorded that the husband of the petitioner has not attended the duty after the aforesaid date and, therefore, his total service period was 15 years and nine months. From the aforesaid narration of facts, it is clear that enquiry as directed by this Court was not conducted by the respondents. 9. From a perusal of the impugned order, again it is found that since no action whatsoever was taken for removal of the husband of the petitioner from service after his un-authorized absence till the date of his superannuation, matter was never referred to the higher authorities for taking decision for regularizing the period of absence of the husband of the petitioner. Fundamental Rule 18 specifically prescribed that if the period of unauthorized absence is more than five years, the same cannot be regularized unless the said absence is condoned by the orders of the competent authority. The matter in fact should have been referred to the competent authority in terms of the aforesaid provisions of Fundamental Rule 18 for passing appropriate orders in the matter of regularization of the un-authorized absence of the husband of the petitioner. The direction as issued by this Court on earlier occasion could not be complied with unless the period of absence of the husband of the petitioner is regularized. Therefore, in fact there was gross non-compliance of the order passed by this Court in earlier writ petition of the petitioner. 10. Yet another aspect which is required to be examined is that the case of the petitioner was for grant of gratuity and family pension as well for which the specific direction was issued. The provisions of Rules, are squarely applicable in the case of the husband of the petitioner and in particular in the matter of grant of family pension to the petitioner. Family pension is to be granted under the provisions of Rule 47 which itself is a code in its full sense. The provisions of Rules, are squarely applicable in the case of the husband of the petitioner and in particular in the matter of grant of family pension to the petitioner. Family pension is to be granted under the provisions of Rule 47 which itself is a code in its full sense. For the purposes of grant of family pension the only requirement is that the employee should be in the service on a pensionable post, should not have been found unfit to be continued in the service on medical ground, should have remained in service on the date of retirement or on the date of death as the case may be. The scheme further prescribed that in case the employee was not entitled to grant of pension, such an aspect is required to be considered. Rule 43 (2) of the Rule prescribed that the qualifying service for grant of pension would be 10 years. It is evident from the documents placed on record that the husband of the petitioner has completed 15 years and nine months service and, therefore, he was to be paid the minimum pension as there was no termination of service of the husband of the petitioner nor it was the case of the respondents that the husband of the petitioner has resigned from the post. These aspects have not been considered in appropriate manner by the authorities while passing the orders. 11. While prescribing the amount of pension under Rule 43 of the rules, it is specifically provided that in case of Government servant retiring in accordance to the provisions of the rules before completing qualifying service of 10 years, the amount of service gratuity can be sanctioned as is indicated in the table. Therefore, the entire consideration done by the respondent-District Education Officer was erroneous. The husband of the petitioner had completed 15 years and nine months of service and, therefore, his pension case was required to be prepared and was required to be sent to the higher authorities for sanction. Yet another aspect is that when the fact was found by the respondent that the husband of the petitioner was suffering from mental disorder and was continuously absent from duty, action could have been taken for his retirement. Yet another aspect is that when the fact was found by the respondent that the husband of the petitioner was suffering from mental disorder and was continuously absent from duty, action could have been taken for his retirement. If no action for retirement was taken at the relevant time, action under Rule 27 of the rule was required to be taken and the period of absence was required to be regularized. If any extraordinary leave was to be granted to the husband of the petitioner for the period of absence whether the said period was to be treated as qualifying service for pension or not was to be decided and then only the order was required to be passed. However, instead of doing so in terms of the rules simply because it was said that the petitioner has not completed the qualifying service for grant of pension the case of the petitioner for grant of family pension was rejected. 12. The family pension is required to be granted in terms of provisions of Rule 47 of the rules. In fact, since the husband of the petitioner though was appointed prior to coming into force of the Rules, yet the family pension was admissible to the petitioner in terms of the provisions of Rule 47 (1)(b) of the rules. The Government servant who is not entitled to grant of pension or was not in receipt of the pension after retirement cannot nominate his wife as nominee for grant of family pension. As has been found herein above even for the period of service rendered by the husband of the petitioner pension would have been granted to him, such an approach of the respondents cannot be said to be correct in rejecting the claim of the petitioner for grant of family pension. On these counts also the order impugned is bad in law and is not sustainable. 13. Keeping in view the aforesaid analysis, the writ petition is allowed. The order impugned dated 8th July, 2009 is hereby quashed. On these counts also the order impugned is bad in law and is not sustainable. 13. Keeping in view the aforesaid analysis, the writ petition is allowed. The order impugned dated 8th July, 2009 is hereby quashed. Since on earlier direction the respondent-District Education Officer has not decided the representation of the petitioner in terms of the rules, and in full compliance of the order of the Court, it would be appropriate to direct the respondent No. 2, to decide the period of absence of the husband of the petitioner in accordance to law and if necessary to take steps to obtain orders in that respect under Fundamental Rule 18 without any loss of time. The respondent No. 2 is further directed to take appropriate steps and pass necessary orders granting benefit of family pension to the petitioner from the date she become entitled to the said family pension, in terms of the provisions of the rules referred to herein above. If any gratuity was required to be paid to the husband of the petitioner, in terms of Rule 43 of the rules, exercise in that respect be completed within a period of three months from the date of receipt of certified copy of the order passed today. This order be complied with strictly within the aforesaid period and amount payable to the petitioner be paid within the said period. It is made clear that in case the amount as found payable to the petitioner is not paid within the said period of three months, the amount aforesaid would carry interest @ 12% per annum from the date it was due till the date of payment and the said amount of interest payable to the petitioner would be recoverable from the erring officers of the respondents/State, who are found responsible for causing delay or non-compliance of this order. 14. The writ petition is allowed to the extent indicated herein above.