JUDGMENT
Shiv Kumar Sharma, J.
1. Matter has been heard finally with the consent of learned counsel for the parties.
2. As per the undisputed facts, petitioner’s husband Ram Kishan (now deceased) came to be appointed as Driver at Ajmer on May 3, 1974 in the Rajasthan State Road Transport Corporation (RSRTC). The employee Ram Kishan became member of Employees Family Pension Scheme, 1972 (for short’ 1971 Scheme’). Deductions from his salary were continuously made. Unfortunately, the employee Rant Kishan remained on leave for 683 days due to illness and died on January 20, 1986. Thereafter vide order dated February 19, 1986 the service of Ram Kishan was dispensed with. The Deputy Mechanical Engineer, RSRTC Sikar sanctioned the leave without pay from March 8, 1984 to January 19, 1986 vide order dated September 27, 1986. The petitioner claimed family pension by submitting the Family Pension Form No. 10-A but the same was denied to the petitioner vide communication dated July 22, 1993 on the ground that there was break in service for last one year. On receipt of notice for demand of justice the respondents required the medical proof of disease of the employee Ram Kishan, which was submitted by the petitioner on March 16, 1999. But the case of petitioner for the family pension was rejected vide order dated June 17, 1999. Feeling aggrieved against this inaction that the present action for filing the writ petition has been resorted to by the petitioner.
3. In the reply to the writ petition the respondent No. 1 averred that the petitioner is not entitled to pensionary benefits as there was break in the service for last more than year and the leave without pay was sanctioned vide ex-post-factor order on September 27, 1986. The respondent No. 2 filed separate reply and submitted that as the petitioner’s husband was on leave without pay from March 6, 1984 to January 19, 1986, and no contribution was made during this period, the petitioner was not entitled to family pension.
4. I have given my anxious consideration to the rival submissions.
5. The Employees Pension Scheme 1995 (for short ‘1995 Scheme1) came into operation with effect from November 16, 1995 which repealed 1971 scheme. Para 44 of 1995 Scheme reads as under:-
“REPEAL AND SAVINGS
(1) On commencement of this Scheme, the Employees’ Family Pension Scheme, 1971, in force immediately before such commencement shall cease to operate with effect from November 16, 1995.
(2) Notwithstanding anything contained in sub-paragraph (1) every nomination made under the Employees’ Family Pension Scheme, 1971, and every form regarding the details of Family of an employee for the purposes of the Employees’ Family Pension Scheme, 1971, shall be deemed to have been made under the provisions of this Scheme.”
Para 16 of 1995 Scheme reads thus:-
“Benefits to the family on the death of a member:-
(1) Pension to the family shall be admissible from the date following the date of death of the member if the member dies:
(a) while in service, provided that at least one month’s contribution has been paid into the Employees’ Pension Fund, or
(b) x x x
(c) x x x
NOTE: xxx
6. Undeniably the family pension was denied to the petitioner vide letter dated July 22, 1993 and notice for demand of justice was served on the respondents on September 18, 1998 to reconsider the family pension case of the petitioner. In response to notice for demand of justice the petitioner’s case was reconsidered and again on June 17, 1999 denial letter was sent. Evidently the case of family pension was not settled prior to November 16, 1995 when 1995 scheme came into operation. In Chotibi (Smt.) v. RPF Commissioner, 2000 III LLJ (Suppl) 79, Karnataka High Court observed as under:- (Para 14)
“14. In the case also if the amount was settled before the scheme of 1995 came into force the petitioner would not have been entitled for the benefit. In addition to that the husband of the petilioner was contributing his fund regularly from June 1, 1971 till November 21,1972 till he died in harness. It is not a case that her husband deliberately failed to contribute the amount, but it was only due to unforeseen circumstances. Subsequently the scheme was amended with a novel idea to extend the benefit to those employees who have contributed even for a month and that the intention of the Legislative will have to be taken into consideration while extending the benefit of the provision to the poor and unfortunate widow.”
7. As earlier noticed the husband of the petitioner was contributing his fund regularly till February, 1984 and he died on January 19, 1986 after remaining on leave without pay due to illness from March 8,1984 to January 19, 1986. The Respondent No. 1 admitted that the leave without pay of the petitioner’s husband was sanctioned vide order dated September 27, 1986. Till June 17, 1999 the case of family pension was not finally settled. Therefore the petitioner is entitled to the benefit of Family Pension in view of para 16 of 1995 Scheme.
8. For the reasons aforementioned, I allow the writ petition and direct the respondents to calculate and settle the family pension payable to the petitioner. The respondents shall make the payment within three months from the date of receipt of copy of this order. There shall be no order as to costs.