CWP No. 13408 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P.No. 13408 of 2006 Date of decision 11 .7.2008 Jeet Kaur ...Petitioner Versus State of Punjab and others. ... Respondent. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MRS. JUSTICE SABINA Present: Mr. K.G.Chaudhary, Advocate for the petitioner. Ms. Charu Tuli, Sr. DAG Punjab for the respondents M.M.KUMAR, J. The petitioner in this case is the mother of constable Dilbag Singh (No.27/627) who was working in PAP, 27th Bn., Jalandhar Cantt. and while on medical leave, died on 17.5.1988. By alleging that under the Family Pension Scheme, 1951 both the parents namely father and mother were included in the definition of 'family' and as such they were entitled to the grant of family pension. The definition was altered by the Family Pension Scheme of 1964 where father and mother of unmarried deceased government servants were excluded from the definition of 'family' for the purposes of family pension nor they were included in the definition of 'family' as per Rule 6.17 of the Punjab Civil Service Rules. By filing the instant petition she has claimed that being the mother of deceased son she is entitled to all the benefits including family pension. The respondent- State has taken the stand that Accountant General, Punjab has vide letter dated 1.4.1992 ( Annexure R.2) declined the CWP No. 13408 of 2006 2 recommendations made by the Commandant, 27th Bn. PAP Jalandhar Cantt. with the remarks that death is not attributable to Govt. Service being it death due to illness while he was on leave, his mother is not entitled for the family pension. The only question which needs determination in the instant petition is as to whether the petitioner being mother of the deceased is covered by the definition of word 'family' as per the Family Pension Scheme of 1964. In that regard reference may first be made to sub rule 3 of the Family Pension Scheme, 1964 incorporated in Rule 6.17 of the Punjab Civil Service Rules, Volume II and the same reads as under: “ 6.17. The provision of this rule shall apply: (1)and (2) xxx xxx xxx xxx (3) “Family” for the purpose of this Scheme will include the following relatives of the Government employee:- (a)wife in the case of a male Government employee and husband in the case of a female government employee; (b) a judicially separated wife or husband, such separation not being granted on the ground of adultery, provided the marriage took place before the retirement of the Government employee and the person surviving was not held guilty of committing adultery; and (d) unmarried daughters below the age of 21 years. Note 1. ( c) and (d) will include children adopted legally before retirement. Note 2. Marriage after retirement will not be recognised for purposes of this Scheme.” CWP No. 13408 of 2006 3 The afore-mentioned scheme has been amended in 1998 w.e.f. 1.1.1996. The amendment carried in the Scheme reads thus: “ “ 4.3. For the purpose of Rule 6.17(3) of Punjab Civil Services Rules Vol. II, the definition of family shall also include the following relatives of the deceased government employee: (i)son/ daughter including widowed/ divorced daughter till he/she attains the age of 25 years or upto the date of his/her marriage/ remarriage or till he/she starts earning his/her livelihood, whichever is earlier; son / daughter including widowed/ divorced daughter shall be deemed to be earning his/her livelihood if his/her income is Rs. 2620 per mensem or more. (ii) Parents who were wholly dependent on the government employee when, he/she was alive provided the deceased emp[loyee had left behind neither a widow nor a child. The parents whose total income from all sources was Rs.2620 per mensem or more at the time of death of the empl;oyee shall not be considered to be dependent.” The matter is no longer res-integra and has been considered by their Lordships of the Supreme Court in the case of State of Punjab v. Devinder Kaur (1999) 9 SCC 12 where the son of one Devinder Kaur was killed by the terrorists in the year 1985. Apparently the 1964 Scheme would be applicable which exclude the parents from the definition of expression 'Family'. However, amendment effected from 1.1.1996 would not apply as CWP No. 13408 of 2006 4 death has taken place much before 1.1.1996. In this regard observations made in para 8 are pertinent which reads as under: “........ In the facts and circumstances of the present case there is no question of setting aside any arbitrary condition. Infact, the class of parents is not included at all in the Scheme of 1964. Therefore, there is no occasion for striking down any part of the said supposed illegal or arbitrary condition. It is also pertinent to note that the rule has neither been challenged in the proceedings before the High Court nor before us. Therefore, there remains no occasion for the same to be read up or to remove any obnoxious part of the restrictive condition. On the contrary all that the learned Single Judge and the Division Bench have done is to add a new class of beneficiaries which is not a permissible exercise for the court. A new policy is sought to be evolved by judicial intervention; It is, of course true that parents are now included in the term 'family' by a new amended scheme w.e.f. 1.1.1996. But that is entirely a different matter. If Daljit Singh had died after 1.1.1996 the benefit of that Scheme would have been legally available to the respondent. But that is not the case here. Consequently, even keeping in mind sympathy for the respondent widow who at the time when Daljit Singh died was dependent on him as her husband, the other claimant had already retired and was aged 65. The judgement of the High Court cannot be sustained so far as the legal position goes.” (emphasis added) In the instant case Dilbag Singh son of the petitioner died on CWP No. 13408 of 2006 5 17.5.1988 which is covered by 1964 Scheme. Accordingly the petitioner cannot derive any advantage from 1964 Scheme. Moreover, there is no challenge to the exclusion of parents from the definition expression 'family' as used in clause 3 of the 1964 Scheme. Therefore, there is no merit in the instant petition and the same is accordingly dismissed. (M.M.Kumar) Judge (Sabina) 11.7.2008 Judge okg FIT FOR INDEXING