Smt. Sampat Bai Vs. the State of Madhya Pradesh - Court Judgment

1 W.P. No.17240/2012 05.02.2013 Shri S. K. Sharma, learned counsel for the petitioner. Shri S. M. Lal, learned Government Advocate for the respondent State. Heard. This is the second round of litigation. Earlier also petitioner visited this Court vide W. P. No.3495/2009 (s) which was decided on 24.07.2010. Order dated 07.05.2012, is being assailed vide this petition. Vide impugned order claim of the petitioner for grant of Family Pension in lieu of death of her husband Prahlad Patel has been turned down. Husband of the petitioner was initially appointed in the Horticulture Department, on daily wages. Thereafter, he was appointed as Jeep Driver on Regular Work Charged Establishment. While discharging his duties as Jeep Driver on Regular Establishment petitioner's husband died in harness on 29.9.1986. Petitioner approached the authorities for settlement of retiral dues including Family Pension which was turned down by respondents by order dated 25.06.1997. Aggrieved, whereby, petitioner preferred W. P. No.3495/2009 (s). The said petition was allowed on 27.08.2010 and the respondents were directed to settle Family Pension in favour of petitioner along with interest @ 6% till final decision. Respondent/State and its functionaries preferred Writ Appeal against the order placing reliance on Full Bench judgment of this Court in case of Mamta Shukla v. State of M. P. and others:

2011. (3) MPLJ 2010 The Division Bench 2 while recording the concession of learned counsel for the parties, regarding legal position in view of law laid down by the Full Bench, set aside the order passed in W. P. No.3495/2009 (s) and directed that the matter deserves to be re-examined in light of law laid down by the Full Bench in Mamta Shukla (supra). It was further expressed by Division Bench that the aspect of entitlement of the petitioner has not been examined and the same is to be examined by the respondents keeping in view all the facts and facets into consideration. Armed with aforesaid order passed in Writ Appeal No.305/2011 dated 12.04.2012, the respondents have passed the impugned order declining the petitioner's entitlement for family pension holding- “Ekkuuh; mPp U;k;ky; ds mDr fnukad 12-04-12 ds fu.kZ; ds ifjis{; esa vkids }kjk izLrqr vH;kosnu dk ijh{k.k fd;k x;k ,oa fuEu dkj.kksa ls mls vekU; fd;k tkrk gS %& 1- vkids ifr Lo- J.izgykn iVsy]. okgu pkyd d`f"k foHkkx esa la;qDr lapkyd d`f"k]. tcyiqj ds v/khu fnukad 23-12- 1978 ls 31-03-1980 rd nSfud osru :i;s 6-65 dh nj ij dk;Zjr Fks bl izdkj os 1 o"kZ 3 ekg 9 fnu nSfud osru ij Fks ,oa ckn esa mUgsa fnukad 01-04-1980 ls dk;ZHkkfjr rFkk vkdfLedrk ds in ij fu;fer fd;k x;k A fnukad 01-04-1980 ls 29-10-1986 ¼e`R;q fnukad½ rd dqy 6 o"kZ 7 ekg fu;fer in ij dk;Zjr jgs A bl izdkj Lo- J.iVsy dh dqy lsok 7 o"kZ 1.ekg gh jgh gS A 2.e-iz- ¼dk;ZHkkfjr rFkk vkdfLedrk ls osru ikus okys deZpkjh½ isa'ku fu;e]. 1979 ds fu;e 2¼x½ ds vuqlkj dk;ZHkkfjr ,oa vkdfLedrk ls osru ikus okys LFkk;h deZpkjh ftldh lsok;sa 10 o"kZ iw.kZ gks pqdh gks mls gh isa'ku dh ik=rk vkrh gS ”

3. vr% Lo- J.izgykn iVsy]. okgu pkyd dh lsok;sa fu;ekuqlkj 10 o"kZ dh iw.kZ ugha gksus ls ifjokj isa'ku dh ik=rk ugha gS A”. Question is whether the respondents are justified in rejecting the claim and whether the proposition of law laid down in Mamta Shukla (supra) and the provisions of M. P. (Work Charged and Contingency Paid Employees) Pension Rules, 1979 and M. P. Civil Services (Pension) Rules 1976, supports the rejection order. And whether rendering 10 years of service in a work charged establishment will also be condition precedent for granting of family pension, could be ascertained after examining the relevant provision of 1979 Rules and that of 76 Rules. 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 the 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. 4 (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 (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. 5 (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 No.15 per cent of pay subject to exceeding Rs. 1200 minimum of Rs.100 and a maximum of Rs.

160. (iii) Above Rs”

12. per cent of pay subject to a minimum of Rs. 160 and a maximum of Rs.

250. 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. As to the law laid down by Full Bench in Mamta Shukla (supra) the issue before the Full Bench was- “(i) Whether the decision of the Division Bench in W.A. No.725/2007, Smt. Rahisha Begum vs. State of M.P. and others is not a good law in view of the decision of the earlier Division Bench of this Court vide order dated 18-7-2005, passed in W.P. No.1273/2000, State of M.P. And others vs. Ram Singh and another ?. (ii) Whether an employee is eligible for the benefit of family pension in accordance with the provisions of Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rules, 1979 after completing qualifying service in accordance with the provisions of Recruitment Rules framed by the concerned Department for work charged and contingency paid employees or in accordance with the definition of Rule 2 of Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rules, 1979 in regard to “contingency paid 6 employee”., “work-charged employee”. and permanent employee”. ?. (iii) Whether for counting qualifying service of an employee for the purpose of grant of benefit of pension it is necessary that the employee has to be appointed in accordance with the provisions of contingency paid employees recruitment rules framed by the concerned department in regard to work charged and contingency paid employees ?.”. The reference was answered in the following terms-

“24. On the basis of above discussion, we hold in regard to the substantial questions of law Nos:

2. and 3 that an employee is eligible to count his past service as qualifying service in accordance with Rule 6 of the Pension Rules, 1979, if he was appointed in accordance with the provisions of Recruitment Rules of 1977. We further hold that an employee, who was not appointed in accordance with the provisions of Recruitment Rules framed by the concerned department, i.e., the Recruitment Rules of 1977, would not be eligible to count his past service as qualifying service for the purpose of grant of pension in accordance with the Pension Rules of 1979 and we answer the substantial questions of law Nos. 2 and 3 accordingly.

25. In regard to substantial question of law No.1 Earlier Division Bench of this Court in W.P. No.1273/2000, State of M.P. vs. Ramsingh and another, as held that a daily wager employee would not fall within the definition of work charged and contingency paid employee, hence his case would not be covered by Madhya Pradesh Workcharged and Contingency Paid Employees Pension Rules, 1979, has not been noticed by the subsequent Division Bench of this Court in Rahisha Begum vs. State of M.P. And other, 2010(4) MPLJ 332 However, in the subsequent case, the Division Bench has held that if an employee comes within the definition of work charged and contingency paid employee as defined the Pension Rules of 1979, then he is eligible to count his past service for the 7 purpose of qualifying service in accordance with the Rules of 1979. In our opinion, there is no conflict between the Division Bench judgments, because the findings of the Division Benches are based on different factual aspects. Accordingly, we answer the substantial question of law No.1 that there is no conflict of opinion between the two Division Bench judgments. Hence, the decision of the Division Bench in the case of Rahisha Begum vs. State of M.P. and others, 2010(4) MPLJ 332 is not per incuriam. We answer substantial question of law No.1 accordingly.”

. Apparent, it is from the above proponement that, the issue as to grant of family pension to a widow of an employee of work charged who are apparently covered by Rule 4A of Rules of 1979 was not the term of reference and not was the same dwelt upon by the Full Bench. In view of above, the respondents are not justified in denying the family pension to the petitioner only on the ground that the petitioner's husband did not complete 10 years of service in Regular Work Charged Establishment. In view whereof, the impugned order dated 07.05.2012 is quashed. The respondents are directed to grant family pension to the petitioner from the date of entitlement. Petitioner shall also be entitled for the interest @ 7.5% on the difference till its final payment. The petition is allowed, to the extent above. (SANJAY YADAV) JUDGE Loretta