1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT D.B. Civil Writ Petition No. 8180/2006 (Union of India & Others Versus Smt. Uchhav Kanwar & Another) Date of Judgment :: 9th February, 2010 HON'BLE MR. JUSTICE K.S. RATHORE HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Suresh Pareek, counsel for the petitioners. Mr. Nand Kishore Bhatt, counsel for the respondent no.1 PER HON'BLE BHAGWATI, J.: Challenge in this writ petition is to the order dated November 17th, 2005 rendered by the Central Administrative Tribunal, Jaipur Bench, Jaipur (here-in- after to be referred as “the Tribunal”), whereby the learned Tribunal allowed the Original Application filed by the applicant seeking family pension and issued direction to the non-applicants / petitioners to release the family pension to the applicant from due date in accordance with rules within a period of three months from the date of receipt of copy of said order. 2. The facts necessary for the disposal of the instant writ petition, in 2 brief, are thus: “The husband of the applicant-respondent no.1 was initially appointed on 25.9.1986 and was granted temporary status on 26.9.1987. At the time of initial appointment, he was medically examined on 25.12.1987 and found fit in such medical examination. The husband of the applicant expired on 6.7.1997 due to sickness. The husband of the applicant was regularized by the respondents along-with other casual labourers vide letter dated 4.9.1997 i.e. after the death. This order of regularization was issued under a Scheme issued by the Railways for regularization of about 56,000 casual labourers on roll as on 30.4.1996. The applicant submitted a representation for grant of family pension as her husband had worked for more than 3095 days and he died in harness, but the same remained unheeded.” 3. Heard learned counsel for the parties and perused the relevant material on record including the impugned order passed by the learned Tribunal. 4. The learned counsel for the petitioners canvassed that albeit the order of regularization of the husband of applicant was issued, but it was a conditional order, which prescribed that before regularization, he shall have to undergo medical examination and since the 3 applicant had died before passing of the regularization order, no medical examination could be conducted, therefore, the husband of the applicant had not been and could not have been regularized since the condition had not been fulfilled by him and as such the family pension was not admissible to the applicant. Learned counsel further canvassed that the deceased Hari Singh, husband of the applicant was a casual labour and enjoying the status only of a temporary workman. There being no regularization of his service, the respondent-applicant could not have been allowed the family pension. He has cited a judgment delivered by the Hon'ble Apex Court in Appeal (Civil) No. 5833 of 2007 titled as General Manager, North West Railway & Others Versus Chanda Devi, in support thereof. The learned Tribunal having failed to consider this aspect of the matter committed material illegality and thus, the impugned order passed by the learned Tribunal needs to be set-aside and the Original Application filed by the applicant deserves to be 4 dismissed. 5. E Contra, the learned counsel appearing for the applicant-respondent no.1 defended the impugned order passed by the learned Tribunal and called the same to be apt and proper. 6. Having heard the learned counsel for the parties and perusing the order dated 17th November, 2005 rendered by the Central Administrative Tribunal, it is noticed that the husband of the applicant entered the Railway Service on 25.9.1986 and he expired on 6.7.1997. Thus, he rendered continuous service for more than 3095 days with the petitioners. Rule 75 (2)(a) of the Railway Services Pension Manual envisages that the family of the deceased shall be entitled to a family pension where a railway servant dies after completion of one year of continuous service. Since the husband of the applicant had rendered 10 years' continuous service, therefore, the applicant was very much entitled to get the family pension. 5 7. It is relevant to reproduce clauses (a) and (b) of sub-rule (2) of Rule 75 of the Railway Services Pension Manual which relevant, for the purpose, reads thus: “75 (2) Without prejudice to the provisions contained in sub-rule (3), where a railway servant dies:- (a) after completion of one year of continuous service, or (b) before completion of one year of continuous service provided the deceased railway 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 railway service.” 8. It is further noticed that during the service, the husband of the applicant was medically examined by the Divisional Medical Officer, Chittorgarh, where he was found fit. 9. Part B to the General Rules of Railway Services (Pension) Rules 1993 deals with retirement benefits under Pension Rules. Rule 3 of Part B relates to family pension, which reads thus: “3. Family Pension 6 Family pension at the rates specified from time to time is admissible to the widow / widower and where there is no widow, to the children of the deceased railway servant who (i) dies while in service after completion of not less than one year's service or with less than one year's service provided the deceased railway servant was medically examined at the time of entering into the railway service; or (ii) after retirement was in receipt of pension or compassionate allowance.” 10. Rule 75 (2)(b) of the Railway Services Pension Manual envisages that the family of the deceased shall be entitled to family pension provided the deceased railway 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 railway service. Since the husband of the applicant had already been examined by the Divisional Medical Officer, Chittorgarh, the plea raised by the petitioners that before regularization the applicant had to undergo medical examination and since the applicant had 7 died before passing of the regularization order, no medical examination could be conducted, has no legs to stand. 11. Adverting to the facts of the instant case, it is found that the respondent-applicant's husband was medically examined by the Divisional Medical Officer, Chittorgarh and was found fit vide Medical Certificate dated 25th December, 1987, which fact stands admitted by the petitioners in their reply. Sub- clause (i) of clause 3 of Pension Rules contemplates family pension to the widow of deceased railway servant, who dies while in service after completion of not less than one year's service or with less than one year's service provided that the deceased railway servant was medically examined at the time of entering into the railway service. Had the deceased railway servant not been examined at the time of entering into railway service, the petitioners could insist upon the requirement of medical examination, but in the instant case the requirement of medical examination of the deceased 8 railway servant is very well fulfilled in view of Rule 75 of the Pension Manual. 12. Learned counsel for the petitioners has again and again reiterated that the deceased railway employee was a casual labour at the time of his death, hence the respondent applicant was not entitled for family pension. 13. Learned counsel for the respondent took us through order of Ministry of Railways dated 8th April, 1997 and office order dated 4th September, 1997 and contended that a decision was taken by the Ministry of Railways to regularize the services of all, about 56000 casual labour who were on roll as on 30.4.1996. Pursuant to this decision, office order dated 4th September, 1997 was issued and a list of 613 casual labour employees was issued, who were to be regularized under the terms mentioned therein. These two letters tangibly suggest that decision to regularize the services of casual labour on roll as on 30.4.1996 was taken on 8th April, 1997 prior to the death of husband of applicant, but on account of 9 bureaucratic lapses, a delay was caused and the order with regard to regularization of services of 613 casual labour employees was issued on 4th September, 1997. Had the office order been issued soon after 8th April, 1997, the services of deceased Hari Singh, casual labour, who was enjoying the status of temporary workman would have been regularized much before his death as he is found to have expired on 6th July, 1997. To his bad luck, this office order was issued approximately more than 1 ½ months after his death, but it does not influence the merits of the case adversely. In view of order dated 8th April, 1997, the deceased railway employee Hari Singh will have to be treated in regular railway service, though he could not join his duties on the regular post on account of his death 1 ½ months' prior to the issuance of order dated 4th September, 1997. 14. The Hon'ble Apex Court has consistently held in umpteen cases that the grant of family pension is a beneficial legislation and while interpreting the rules, the claim of family pension cannot 10 be thrown out on some technical grounds. Equitable consideration is a part of rule of law and it is an in-built object sought to be achieved and the goal laid down in the Constitution of India. 15. The facts of the cases cited by the learned counsel for the petitioners are distinct to the facts of the case at hand. In the instant case, albeit initially the deceased Hari Singh was appointed on 25th September, 1986 as a casual labour, but he was granted temporary status on 26th September, 1987. He enjoyed this temporary status for near about 9 years. The services of all casual labour, who were on roll on 30.4.1996 were decided to be regularized by the Ministry of Railways on 8th April, 1997. Had the office order been issued pursuant to this order, the services of deceased Hari Singh would have been regularized, but since the office order with regard to regularization of his service was issued 1 ½ months' after his death, his widow – the respondent applicant cannot be denied family pension on this mere technical ground. Learned Tribunal 11 having discussed so many judgments laid down by the Hon'ble Apex Court and the Principal Seat of the Central Administrative Tribunal, observed that since the deceased Hari Singh had worked in the railways since 1986 on casual basis (temporary status) and his juniors had also been regularized along-with him, so his family could not be denied family pension. Having seen the list of 613 casual labours, it is found that the name of deceased Hari Singh falls at Sr. No. 513, which evinces that the decision to regularize his services had been taken on 8th April, 1997 prior to his death. 16. The impugned order of the learned Tribunal is well merited based on sound and cogent reasoning, which suffers from no infirmity or illegality. We are in unison with the finding arrived at by the learned Tribunal. The arguments advanced by the learned counsel for the petitioners are not found to be tenable and the judgments cited by him are of no help to him. 17. For the reasons stated above, civil writ petition filed under Article 226 12 and 227 of the Constitution of India by the petitioners being bereft of merits deserves to be dismissed and the same stands dismissed accordingly. (MAHESH BHAGWATI),J. (K.S. RATHORE),J. DK/-