IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP (T) No. 4877 of 2008 Date of decision: 26.11.2010 ________________________________________________________________ Smt. Barjeshwari Devi .....Petitioner. Versus State of H.P. and others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. ________________________________________________________________ For the petitioner: Mr. Vikas Rajput, Advocate. For the respondents: Mr. Anil Jaswal, Deputy Advocate General. V.K. Sharma, J (Oral). The petitioner has filed the present petition with a prayer for grant of family pension on the averments that her husband late Shri Ram Saran Dass Sood served the respondent department as Assistant Teacher from 15.10.1954 to 5.12.1957. This aspect of the matter has also been specifically admitted on behalf of the respondents. At the relevant time, the deceased husband of the petitioner was posted in Government Primary School, Sanora, District Sirmaur. The record reveals that the deceased proceeded on casual leave on 26.8.1957. Thereafter, after remaining on long absence he joined duty on 8.11.1957. On 13.11.1957 he again proceeded on leave and did not rejoin duty. In the mean time, according to the respondents, his services were terminated on 5.12.1957 (afternoon). The claim for family pension 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. .......2...... has been rejected on these grounds. However, the fact remains that there are no averments either that any disciplinary proceedings were initiated against the deceased or the same had culminated into his indictment, pursuant to which his services were allegedly terminated. Furthermore, no material has been brought on record on behalf of the respondents in this regard. It is also not disputed that the deceased was a permanent government employee and could not have been summarily terminated from service solely on the ground that after proceeding on leave he had overstayed leave. 2. Admittedly the deceased had served the department from 15.10.1954 to 5.12.1957. In view of the Note appended below sub rule (1) of Rule 54 of CCS Pension Rules, 1972 the petitioner would definitely be entitled for grant of family pension on the basis of the service rendered by the deceased, as admittedly he had died before 31.12.1963 and the rule supra is fully applicable in this case as required under the note as aforesaid which along with sub rule (1) of Rule 54 supra is extracted below for the sake of convenience:- “(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 31t 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 the 31st December, 1963, as in force immediately before the commencement of these rules. ......3...... [NOTE:- The provisions of this rule will also extend, from 22nd September, 1977, to Government servants on pensionable establishments who retire/died before 31.12.1963, as also to those who were alive on 31.12.1963, but had opted out of 1964 Scheme.]” 3. It may be emphasised that as per sub rule (2)(a) of rule 54 supra, the requisite qualifying service for grant of family pension is one year, which condition in this case is duly fulfilled. 4. In view of the above, the petition is allowed with a direction to respondent No.2 to grant family pension to the petitioner. Though the claim for family pension relates as far back as 20.6.1958 when the deceased had died as is apparent from extract from the register of deaths, Annexure A-1, yet the same being highly belated would be restricted only on and with effect from three years prior to the presentation of the petition (Original Application) that is, on and w.e.f. 16.2.1995. The entire exercise for grant of family pension to the petitioner in the light of this judgment shall be carried out within 3 months from today and the monetary benefits shall be paid to her within the same time, failing which interest @ 9% per annum shall also be payable on the arrears of family pension on and w.e.f. 16.2.1995. The claim has been restricted as above in terms of the law laid down by the Hon'ble Supreme Court in Shiv Dass Versus Union of India and others, (2007) 9 Supreme Court Cases 274. as per para 10 of the judgment which is as under:- “10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict ....4.... the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit the appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone.” 5. The petition stands disposed in the above said terms, so also pending CMP(s), if any. (V.K. Sharma) Judge 26th November, 2010 (Krn Guleria)