ORDER
1. Heard Mr. Karnik for the petitioner and Mr. Walia for the respondent.
2. This petition by Union of India through the Commissioner of Customs seeks to challenge the orders dated 16th October 2002 and 29th July 2003 passed by the Central Administrative Tribunal, Mumbai granting family pension to the respondent who is a widow of an invalidated employee of the Central Government.
3. The facts leading to this petition are as follows :–
(a) The respondent is the widow of a former employee from the office of the Commissioner of Customs. He was working as a Greaser at Dapoli under the Ratnagiri Customs Division of the Commissionerate at Pune. He was invalidated on 31st August 1998. The deceased husband of the respondent was not granted any pension on the ground that on the date of invalidity he had put in service of 2 years 7 months and 21 days. The fact that he was invalidated was never disputed. Though there were other questions such as absence from duty and with respect to past service conduct, he was denied pension principally on the ground of a very short service.
(b) The deceased husband of the respondent represented to the petitioners, but the same was turned down and the departmental appeal therefrom was rejected. He therefore filed Original Application No. 371 of 2001 before the Central Administrative Tribunal, Mumbai. During the pendency of that Application, he died on 4th April 2001 and the respondent came on record as his legal heir and representative. The Tribunal allowed the Main Application partly and by its order dated 16th October 2002 awarded invalid pension for the period 1st September 1998 to 4th April 2001. This order was subsequently corrected on 29th July 2003 by order passed on Misc. Application No. 520 of 2003 which converted it into family pension for the respondent under Rule 49(2)(c) of the Central Civil Services (Pension) Rules, 1972. Both these orders dated 16th October 2002 and 29th July 2003 are challenged in this Writ Petition.
4. The only submission canvassed before us was with respect to the eligibility of the respondent to claim family pension on the basis of invalidity of her husband in view of his short period of service. It therefore becomes necessary to refer to the rules concerning invalid pension, amount of pension and family pension. Rule 38 of the Central Civil Services (Pension) Rules, 1972 defines what is an invalid pension. It reads as follows :–
“38. Invalid pension.– (1) Invalid pension may be granted if a Government servant retires from the service on account of any bodily or mental infirmity which permanently incapacitates him for the service. (2) A Government servant applying for an invalid pension shall submit a medical certificate of incapacity from the following medical authority, namely :–
(a) a Medical Board in the case of a Gazetted Government servant and of a non-Gazetted Government servant whose pay, as defined in Rule 9(21) of the Fundamental Rules, exceeds two thousand and two hundred rupees per mensem;
(b) Civil Surgeon or a District Medical Officer or Medical Officer of equivalent status in other cases.”
5. Rule 49 lays down what would be the amount of pension payable to a retiring government servant. Sub-rule (2) of Rule 49 has three parts. Sub-rule 2(a) deals with the family pension which would be payable on completing 33 years of qualifying service. Sub-rule 2(b) provides for pension payable after 10 years of service and it is further provided that it shall not be less than Rs. 375/- per month. Sub-rule 2(c) provides that notwithstanding anything contained in Clauses (a) and (b), the amount of invalid pension shall not be less than the amount of family pension admissible under Rule 54(2). This Rule 49(2) reads as follows:–
“49. Amount of Pension.– (1) …………
(2) (a) In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than thirty-three years, the amount of pension shall be calculated at fifty per cent of average emoluments, subject to a maximum of four thousand and five hundred rupees per mensem.
(b) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty-three years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under Clause (a) and in no case the amount of pension shall be less than rupees three hundred and seventy five per mensem;
(c) Notwithstanding anything contained in Clause (a) and Clause (b) the amount of invalid pension shall not be less than the amount of family pension admissible under Sub-rule (2) of Rule 54.”
6. Since Rule 49(2)(c) refers to Rule 54(2), we refer Rule 54(1) and (2) which read as follows :–
“54. Family Pension Rules, 1964.– (1) The provisions of this rule shall apply —
(a) to a Government servant entering service in a pensionable establishment on or after the 1st January, 1964; and
(b) to a Government servant who was in service on the 31st December, 1963 and came to be governed by the provisions of the Family Pension Scheme for Central Government Employees, 1964, contained in the Ministry of Finance Office Memorandum No. 9(16)-E, V(A)/63 dated 31st December, 1963, as in force immediately before the commencement of these rules.
(2) Without prejudice to the provisions contained in Sub-rule (3), where a Government servant dies —
(a) after completion of one year of continuous service; or
(aa) before completion of one of continuous service provided the deceased Government servant concerned immediately prior to his appointment to the service or post was examined by the appropriate medical authority and declared fit by that authority for Government service; or
(c) 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 37, the family of the deceased shall be entitled to Family Pension, 1964 (hereinafter in this rule referred to as family pension) the amount of which shall be determined in accordance with the Table below.______ Pay of Government Servant Amount of monthly family pension
Explanation.– The expression ‘continuous one year of service’ wherever it occurs in this rule shall be construed to include ‘less than one year of continuous service’ as defined in Clause (aa).”
7. A conjoint reading of these Rules makes it clear that whereas the other retiring employees have to put in at least 10 years of service, in the case of a person suffering from invalidity, there is no such requirement under Rule 49(2)(c). It is also material to note that under Rule 54(2) when it comes to death of a government servant, it is provided in Sub-rule 2(a) that even where a government servant dies after completion of one year service, the family of the deceased is entitled to family pension as laid down in the Rules, Even where a person dies before completion of one year, Sub-rule 2(aa) provides that his family may as well receive family pension provided of course a fitness certificate had been issued by the medical authority immediately prior to his appointment to the service.
8. Mr. Karnik, learned counsel for the petitioner, submitted that there is no specific qualifying period of service provided for pension on validity. However, the concept of “qualifying service” as defined under Rule 3(q) provides that it means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules. As seen above, under Rule 49, which provides for amount of pension, Sub-rule (2) provides for three situations and as far as pension on invalidity is concerned, the Rule 49(2)(c) begins with the non-obstante clause and clearly provides that it shall not be less than the amount of family pension admissible under Rule 54(2). This being the position, since the deceased husband of the petitioner in the present case had suffered invalidity, may be before completion of 10 years of service, that cannot disentitle her from receiving the family pension. It is a welfare provision and it is a provision similar to a situation where a person dies after completion of one year service or even before that. These provisions are in consonance with the spirit of the directive principles of the Constitution and have to be read as such.
9. Mr. Walia, learned counsel for the respondent, referred to a judgment of a Single Judge of the Delhi High Court in the case of Ex. Coost. Badan Singh v. Union of India, reported in III 2003(1) All India Services Law Journal 329, where a similar view has been taken by a Single Judge of the Delhi High Court to grant invalid pension where the service rendered was less than ten years and the petitioner had suffered from Aids. The Administrative Tribunal was, therefore, right in interpreting the relevant provisions in that light and has correctly come to the conclusion that the Original Application had to be allowed. We therefore do not find any error in the approach of the Administrative Tribunal. Petition is dismissed.
10. The petitioner will act on an authenticated copy of this order.