K. Kl 'S^-of-^-oe>6 MIGH CX)Um50F GMNA-niSSftRHAT BILASPUR Wnt Petiti<m«6^^»2000 CORAM:l-loii'bteSHrtS.R.Nayak,ChlefJusBce& Hon'bleShrtD.R.D^hmukhol. PETITtONERS Respondents 1. The Stat®of M.P., through the Secretary, Soual Wel&ue Departnient Mantrerfaya, ^Babh Btrawan, Bhopaf. 2. The Director, Social WeHare. M.P. Bhopal ffil-p-)- 3. The Commissioner (Revenue)> Bllaspur Revenu®Diyisfon, Bilaspur(M.P.). 4. The Joint prector, Pamshayat & Social Sewa,Bite©purDiyiSion,Bilasput(M.P.). Ws 1. Smfc Janla tei Tiwari, W/6 late Motilal Shama, aged jife<^ ^^^^^^^ N0^ Ei/ZS^li^flf^ncl^ f^^ 'fahsita»E(®isffi|iitaspufW.P^. 2.«MiB.a^iSSS3ministratl(wTriBunat.^Ratpur Shn yitKa^VermlHeailiSilt^l^'iB^ Nor»appsare'forre^i6nd^'{^t.v!..:'^:% ORALORDER (Pass8dw2T.07.2<K}^ The foltowfng orat orcler of the Court was passed by S.R.NAYAK, C.J, The State of Madhya Pradesh (now theState ofChhatfisgartiy.and its authoritles being aggrieved by thsofdef of the M. P. Adnainistrative Tiibunal, Raipur Bench, <lated 8.10.99 pa$setl in OANo.TO^S have preferred this Writ petition ynder Artiele 227 of the GonstttutjoR of trodia. ThefirstrespondentheremisthewK^ofNeMofitalShaTma.^M Sharma Was appointedas Gram^Saftayak, Soejaf Weflare DeparU'ieNtian'Et servsdas sych only during 10.C8.1964 and 15.C0.1966; l-1e dl^ on^ 10,08^969. WhCT the nrattersfawtf^ius.aftiSTatonalaipseoffl'ioTO^g^B liBiSII ~-:. '^^ .—^ K EE • » :;'-'!ffl sm i®IS8 x^sl ^^•e' ^i^^^ ;^[^iS; 'BKt .^§1 BBK !ss BBI BB- 30 years, the widow of fte deceased-employee instituted Original Application No.702/1998 praying for family pension. The application was contested by the State by filing return. In the retum, it was contended that the petitioner's husband was appointed as Gram Sahayak on 10.09.1964. but. his services were terminated with effect.Trom 15.03.1966. because. he was unauthorisedly absenting throughouf from his duties. The Stete contended that the deceased-employee did not put in required number of years of service to enabte his widow to claim family pension. TTie Tribunal, however^ having opined that the wdow of the deceased- employee is entitled to famity pension under sub-rute (?) of Rule 47 of the M.P. Civil Sen/ices (Pension) Rules, 1976 (for short 'the Pension Rules') allowed the application of the first respondent and directed the State and Stete auftorities to pay famiiy pension to the first respondent with effect from ttie date of death of the first respondenfs husband.i.e. 10.08.69. Hence, this writ petffion. When the case was called, only leamed Dy. Govemment Advocate appeared. None appeared on behalf of fte first rsspondent nor any representation was made on her behatf. 2. We have heard leamed Dy. Government Advocate Shri Utkarsh Verma. It was contended by learned Dy. Govemment Advocate that the opsnion of the Tribunal that the first respondent is entitled to family pension under sub-rule (2) of Rule 47 of the Rules is ex facre erroneous and liable to be intsrfered with. In ttie writ petition, return is filed on behalf of first respondent. !n para 4 ofthe said return, it is claimed that the deceased- Motilat Sharma was in service from 19.8.1963 till he died on 10.08.1969. This assertion seems to be an afterthought. In the return filed by the State and State Authorities before the Tribunal, it was specifically pteaded that though deceased was appointed as Gram Sahayak w.e.f. 10.09.1964, his its'......:, . ' •.' -3 services were terminatsd on 15.3.1966 on the ground of unauthorized absent continuousiy, and that only after termination of his seryices, after a 'apse of three years, he died on 10.8.1969. This assertion made by the -State and Stete Authorities was not denied at all before the Tribunal by filing any rejoinder. As could be seen from the impugned order, even the Tribunat had accepted the fact that the deceased was in service only between 10.09.1964 and 15.3.1966. Therefore, the question to be considered is that if fte husband of the first respondent was in servfee only between 10.09.1964 and 15.3.1966, whethsr his widow could claim contributory family pension under Rule 47 of the Pension Rutes. It is nobody's case that sub-rule (1) of Rule 47 of the Pension Rules appties to the facts of this case. The Tribunal has granted contributory family penston to the widow of the deceased under sub-rule (2) of Rule 47 of the Pension Rules. Sub-rute (2) of Rule 47 reads as follows: "(2) ElA/ithout preiudicel to the provisfons contained in sub- rule (3), where a Government servant dies white in service provided he had been medically examined and found fit for appointment under the Government.] (b) after retlrement from servlce and was on ttie date of death in receipt of a pension or compassionate altowance, referred to in Chapter V other than the pension referred to in rule 34, on the date of deatti, the family ofthe deceased shafl be entitted to a contributory family pension (hereinafter in this rute referred to as Family Pension) the amount of which shall be determtned as fottows: Pay of Government servant Amount of monthly family pension (1) (2) (i) BeiowRs.400. 30 per^cent of pay subject to a minimum of Rs,60 and a mawmum ofRs.100. (ii) Rs.400 and above but 15 percent of pay subject to a notexcesdingRs.1200. minimum of Rs.100 and a maximumofRs.160. AboveRs.1200. 12 per cent of pay subject to a minimum of Rs.160 and a maximum of Rs.250. -4- (2A) The amount of family pension shall be fixed at monthty rates and be expressed in whole rupees and where the family pension contains a fraction of a rupee it shatl be rounded off to next highec rupe®provided that in no case family pension in excess of ttie maxfmum [prescrfbed] under is rute shall be allowed." 3. This case cannot be brought under clause (a) or clause (b) of sub- rule (2). Clause (a) has no application because the husband of the first respondent did not die while in service. This case could not be brought under clause (b) of sub-rute (2) of Pension Rules also. It is not the case of the first respondent that after his rstirement from service, on Uie date of his death. husband of the first respondent was in receipt of a pension or compassionate allowance referred to in Chapter V. Admittedly, the deceased-employee was not receiving any pension or allowance till his 4. Apart from the legal position stated above, the Tribunal ought not to have entertained the stale claim brought before it by the first respondent. Admittedly, the husband of the first respondent died on 10.8.1969 whereas afEer a long lapse of 30 years and more, the first respondent chose to institute the Original Application. Therefore, we cannot sustain the order made by the Tribunal impugned in this writ petition. The wrrt petition is allowed and the impugned order of the Tribuna! is set aside and the O.A.No.702/98 filed by the first respondent is dismissed. However, it is directed that 50% of the amount directed to be deposited by the State as directed by this Court earlier towards famity pension payabte to the \ J first respondent if the same is paid to her shall not be recovered from her? Nocosts. -— Sd-/ ;i Dilip Raosaheb Deshmukh ; Judge Sd/- ChiefJustice