W.P.NO.3495/2009 (S)
27.8.2010
Shri Sanjay K. Sharma, learned counsel for the petitioner.
Shri B.N. Mishra, learned Govt. Advocate for respondent
State.
Grievance put-forth by the petitioner in the present petition
is against non-grant of family pension in lieu of death of her
husband employed as Jeep Driver on regular contingency
establishment in the department of Horticulture who expired on
29.10.1986.
Husband of the petitioner was initially appointed in the
Horticulture Department on 23.12.1978 on daily-wages.
Thereafter, w.e.f. 1.4.1980 he was brought in the regular work-
charged establishment as Jeep Driver. While discharging his
duties as Jeep Driver on regular work-charged establishment,
husband of the petitioner died while in service on 29.10.1986.
After his death, petitioner approached the authorities for
settlement of retrial dues including family pension. The request
of the petitioner for grant of family pension was turned down by
the respondents by letter dated 25.6.1997; whereby, petitioner
was informed that since her husband has not rendered 10 years
of service in the regular work-charged establishment and has
thus not qualified for pension under Madhya Pradesh (Work
Charged & Contingency Paid Employees) Pension Rules, 1979;
therefore, she is not entitled for family pension. Aggrieved of
the denial of family pension the petitioner has filed this petition.
It is contended that the respondents have misconstrued the
provisions of Rules of 1979 in denying the family pension which
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she is entitled for as per provisions contained under Rule 4 A.
It is further contended that for grant of family pension the
requirement of minimum 10 years of service in regular work-
charged establishment is not necessary and if a person engaged
on a regular work-charged establishment even for a day his
dependent would be entitled for family pension in case of his
death while in service.
Respondents on their turn embedded to the stand that
petitioner is not entitled for family pension because her
husband did not render qualifying service of 10 years as per
Rule 6 of the Rules of 1979. It is urged that since the petitioner
has no right for family pension the petition deserves to be
dismissed.
Rule 4 A of the Rules of 1979 and Rule 6 thereof
respectively provide for:
“4 A. Not withstanding anything contained in rule 4
the family of a permanent employee, who dies while in
service or after retirement on pension on or after the
1st April 1981 shall be entitled to family pension at the
rate of 30% of his/her pay drawn at the time of
death/retirement subject to minimum, of Rs.40/- per
month and maximum of Rs.100/- per month subject
to other conditions of Rule 47 of Madhya Pradesh Civil
Services (Pension) Rules, 1976 except sub-rule (3) of
the said Rules.
6. Commencement of qualifying service.- (1)
Subject to the provisions of Chapter III of the Madhya
Pradesh Civil Services (Pension) Rules, 1976 or section
IV of the Madhya Pradesh New Pension Rules, 1951 as
3the case may be, for calculating qualifying service of a
permanent employee who retires as such, the service
rendered with effect from the 1st January, 1959
onwards shall be counted.
(2) On absorption of a permanent employee without
interruption against any regular pensionable post, the
service rendered with effect from 1st January, 1959
onward shall be counted for pension as if such service
was rendered in a regular post.
(3) On absorption of temporary employee without
interruption against any regular pensionable post, the
service rendered with effect from 1st January, 1974
onwards, if such service is of less than six years shall
be counted for pension as if such service was rendered
in a regular post.
When the aforesaid two Rules are read together, it is clear
as crystal that the provisions which govern the family pension
has a different field of operation than the provisions regarding
pension to an employee who retires from the work-charged
establishment and are governed by Rule 6 of Rules of 1979.
By virtue of Rule 4 A the provisions as contained under
Rule 47 of the M.P. Civil Services (Pension) Rules, 1976 are
attracted. The said Rule provides for
47. Contributory Family Pension. – (1) The
provisions of this rule shall apply:-
(a) to a Government servant entering service in a
pensionable establishment or on after 1st April
1966, and
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(b) to a Government servant who was in service on 31st
March, 1966 and came to be governed by the
provisions of the Family Pension Scheme for State
Government Employees, 1966 contained in
Government of Madhya Pradesh Finance
Department memo No. 1963/C.R903-IV-R. II dated
17th August, 1966 as in force immediately before
the commencement of these rules.
(2) Subject to the provision of sub-rule (5) and
without prejudice to the provisions contained in sub-
rule (3), where a Government servant dies-
(a) during the period of service he was found medically
fit at the time of appointment,
(b) after retirement from service and was on the date of
death in receipt of a pension or compassionate
allowance, referred to in Chapter V other than the
pension referred to in Rule 34, on the date of death,
the family of the deceased shall be entitled to a
contributory family pension (hereinafter in this rule
referred to as Family pension) the amount of which
shall be determined as follows:-
Pay of Government Servant Amount of monthly Family Pension
(i) Below Rs.400 30 per cent. Of pay subject to
minimum of Rs.60 and a
maximum of Rs.100.
(ii) Rs.400 and above but not 15 per cent of pay subject to
exceeding Rs.1200. minimum of Rs.100 and a
maximum of Rs.160.
(iii) Above Rs.1200 12 per cent. Of pay subject to a
minimum of Rs.160 and a
maximum of Rs.250.
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A harmonious reading of Rule 4 A of Rules, 1979 and Rule
47 (2) (a) of Rules, 1976 would fresco that if a person employed
in a regular work-charged establishment dies while in service,
his family cannot be deprived of the pension which it would be
entitled for by virtue of Rule 4 A of Rules, 1979.
In view of above the decision taken by the respondent
authority depriving the petitioner of the family pension on the
anvil that her husband did not complete 10 years of service in
regular work-charged establishment is without any basis and is
hereby set aside. The respondents are directed to settle family
pension in favour of the petitioner within a period of three
months from the date of communication of this order.
Petitioner would also be entitled for interest at the rate of 6%
from the date of entitlement till final payment.
In the result petition is allowed to the extent above.
However, no costs.
(SANJAY YADAV)
J U D G E
Vivek Tripathi