1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Smt. Urmila Devi v. State of Rajasthan & Ors. S.B.CIVIL WRIT PETITION NO.1827/1998 under Article 226 of the Constitution of India. Date of Order :: 3rd November, 2009 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. M.Mridul Senior Advocate assisted by Mr.R.N.Upadhyay, for the petitioner. Mr. IS Pareek, Additional Government Counsel. Mr. KK Bissa, for the respondents. .... BY THE COURT : On 27.1.1968 husband of the petitioner Shri Manohar Lal, on receiving an information alongwith other police officers proceeded for Nakabandi, but unfortunately during raid he met with an accident and died at the age of 24 years leaving behind the petitioner and two infant sons. By way of filing a petition for writ (SBCivil Writ Petition No.769/94) the petitioner claimed for pensionary awards as per Chapter XXIII-B of the Rajasthan Service Rules, 1951 (hereinafter referred to as “the Rules of 1951”). The 2 writ petition aforesaid came to be accepted on 20.2.1996 with following directions:- “Consequently, the respondents are directed to revise the family-pension of the petitioners, giving them the benefit of special pensionary awards from the date that the family-pension became due to them, after the death of the deceased, and the arrears, after deducting the amount already paid, should be paid within a period of six months from today. The respondents are further directed to give such benefit to all similarly situated persons, although, they have not approached the court.” In compliance of the directions aforesaid the respondents awarded special pension to the petitioner. Pertinent to note that Rule 268-I of the Rules of 1951 provides that the government servants of pensionable establishments, whether temporary or permanent, who are in service on the 5th day of August, 1965, or who enter service on or after that date, shall be entitled for special pensionary awards in the event of eventualities prescribed under clause (i) to clause (v) of the rule aforesaid. According to Rule 268-K the amount of award and concessions admissible under Chapter XXIII-B includes family pension equal to the monthly emoluments which the deceased was drawing at the time of his death payable up to the date when the deceased would have attained the age of 3 superannuation, has he survived. Late Shri Manohar Lal being died as a result of injury sustained while undertaking raid, the petitioner was declared entitled for receiving special pensionary awards. The grievance of the petitioner is that the respondents though allowed minimum of monthly emoluments which her husband was drawing at the time of his death, but have not revised the same on revision of pay scales by subsequent pay rules. According to the petitioner the respondents should have fixed her family pension as per revised pay scale, as and when revised uptil the date he would have attained the age of superannuation, if survived. Per contra, as per the respondents revision of pension in accordance with Chapter XXIII-B of the Rules of 1951 was made by them in accordance with the directions given by this Court in earlier petition for writ preferred by the petitioner. The details regarding determination and fixation of the petitioner's pension is also given by way of filing an additional affidavit and according to that the pension was sanctioned as per the Government of Rajasthan order dated 7.5.1988 and further as per memorandum dated 21.3.1998. The details given by the respondents relating to grant of pension to the petitioner are as follows:- 4 “i.Late Shri Manohar Lal was drawing salary of Rs.74/- with D.A. of Rs.65/- as on 27-1- 1968, therefore, the petitioner was granted awarded pension of Rs.139/- per month upto 31-7-1995; ii.As per the order dt.7-5-1988 issued by the Finance (Group-2) Department, it was directed to grant minimum family pension in case a pensioner draws special pensionary award less than the minimum family pension. The petitioner was since drawing special pensionary award less than the minimum family pension, therefore, she was granted minimum family pension of Rs.300/- + dearness allowance w.e.f. 1-9-1986. The petitioner was entitled to draw the aforesaid pension up to the date of superannuation of her husband and thereafter, as per rule 268(k)(iii) of the Rules of 1951, the petitioner became entitled get family pension equal to half of the maximum of the scale i.e. which existed at the time of death and in which pay was being drawn by the deceased in substantive, officiating or temporary capacity payable. The pay-scale of husband of the petitioner was 70-110 and thus, amount of pension came at Rs.55/- per month which was again less than the amount of minimum family pension i.e. Rs.300/- and hence, the petitioner remained entitled to get family pension of Rs.300/- up to 1-9-1996; iii.The Finance Department issued a memorandum dt.14-7-2000, wherein, in pursuance of the circular dt.21-3-1998, it was ordered to modify the special pensionary 5 award with effect from 1-9-1996. The pay- scale of constable after coming into force of the revised pay-scales of 1998 became 825- 1350 and hence, vide P.P.O No.400325 (R)J No.11934 dated 29-10-2002, sanction of family pension of Rs.2062/- was issued; iv.Thereafter, the State Government again issued amended pension order dt.1-9-2006, which was payable from 1-1-2007, according to which, the pension was to be calculated 2.26 times of existing pension. Therefore, the Treasury Officer, Pali made fixation of pension of the petitioner with effect from 1- 1-2007 at Rs.4661/- (2.26 times of Rs.2062/- drawn by the petitioner) + dearness allowance; v.That at present, the dearness allowance is payable at 27%. The original pension of the petitioner is Rs.4661/- and dearness allowance comes to Rs.1256/-. Hence, at present, the petitioner is being paid pension @ Rs.5919/- per month through the Treasury Office, Pali.” From the details given by the respondents it is apparent that at the first instance petitioner's family pension was fixed at the emoluments last drawn by her husband but the same was not revised on revision of pay scales. The respondents only allowed minimum family pension on 1.9.1986 as even minimum of the revised pay scale was quite higher. 6 The interpretation made by the respondents regarding payment of special pensionary award as per Rule 268-K(ii) of the Rules of 1951 is that the last pay drawn is one time phenomena and that is not required to be revised subsequently. Chapter XXIII-B of the Rules of 1951 prescribes special provisions for the government servants who are killed or died in certain extraordinary circumstances. As a matter of fact the pension under Chapter aforesaid is an award to the family of a deceased government servant who lost/sacrificed his life while participating in important government duties. The provisions prescribed under Chapter XXIII-B of the Rules of 1951 being award prescribes total service benefits to wards of a deceased government servant and assumes survival of the employee despite his death, so far as the grant of family pension is concerned. The government servant who has lost life in the eventualities prescribed under Rule 268-I is required to be treated as continued in service till the age of his superannuation, if survived, means all service benefits relating to payment of emoluments are required to be given to members of his family who are entitled for family pension and other special awards. If the respondents be permitted to allow emoluments received by Late Shri Manohar Lal at the time of his death as only one time phenomena without revision, then that will be certainly contrary to the intention of awarding special pension. It is also pertinent to 7 note that in normal course too family pension itself is required to be revised on revision of pay scales, therefore, in the case where total emoluments are treated as family pension that should also be revised on revision. The mode adopted by the respondents for settling the petitioner's family pension is contrary to the spirit and intention of Chapter XXIII-B of the Rules of 1951. The respondents, therefore, required to determine family pension of the petitioner by making fixation of Late Shri Manohar Lal in revised pay scales and then by settling his emoluments. The respondents instead of doing so have allowed minimum family pension to the petitioner from the year 1986 i.e. absolutely contrary to the intention and thrust of the provisions of Chapter XXIII-B of the rules of 1951. The petitioner is entitled to receive family pension by getting fixation of the pay of her husband Late Shri Manohar Lal in all revised pay rules introduced from 27.1.1968 and then by settling his emoluments. Accordingly, this petition for writ is allowed. The respondents are directed to determine family pension of the petitioner by making fixation of Late Shri Manohar Lal in revised pay scales. The petitioner is declared entitled to receive family pension by getting fixation of the pay of her husband Late Shri Manohar Lal in all revised pay rules introduced subsequent to 27.1.1968 and then by 8 settling his emoluments. The petitioner is also declared entitled for receiving all consequential benefits. ( GOVIND MATHUR ),J. kkm/ps