IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.5986 of 2002 Date of decision: 29th September, 2010 Saran Dulari … Petitioner Versus State of Punjab and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. S.K. Sandhir, Advocate for the petitioner. Ms. Sudeepti Sharma, DAG Punjab, for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present writ petition has been filed by Saran Dulari wife of late Murari Lal. It is not disputed that she is widowed sister of Shanti Sarup, Canal Patwari, who died on 17th October, 1988 at PGIMER, Chandigarh. At the relevant time, Shanti Sarup was employed in the Irrigation Department, Punjab. Case of the petitioner is that her husband died 30/35 years ago and since then she was living with her brother Shanti Sarup and was dependent upon him. Shanti Sarup, when died, was unmarried. The question, which arises for consideration of this Court, is as to whether the petitioner, being a widowed sister of Shanti Sarup, is entitled to family pension on account of his death. The claim of the petitioner for grant of pension was rejected by respondent No.3 vide letter dated 17th July, 2001 (Annexure P-8) issued by Indian Audit and Accounts Department to the Civil Writ Petition No.5986 of 2002 Executive Engineer, Devigarh Division (IB), Patiala, the relevant portion whereof reads as under: “1. Under rule no Family Pension is admissible in respect of Smt.Saran Dulari (widow) sister of late Sh.Shanti Saroop (deceased Canal Patwari). No further action is required to be taken by this office. Smt. Radha Piarai mother of late Shanti Saroop was authorized Family Pension on the basis of Court Judgment but there is no mention about widow sister. Sd/- Sr. Accounts Officer” Counsel for the petitioner has relied upon ‘Punjab State Electricity Board & others v. Ram Rikhi’ 2000 (3) All Instant Judgments 175. It will be apposite here to reproduce the relevant portion of this judgment, which reads as under: “5. The fact that respondent is a widowed sister of the deceased employee of the appellant is not in dispute. It is also not in dispute that he did not exercise his option to be governed by the Pension Scheme, 1964 and therefore the restricted definition given to the expression ‘Family’ confining only to spouses, sons and unmarried daughters has no application. On the other hand, the relevant rules in Punjab Civil Services Rules Vol.II 1960 Ed. would be applicable wherein in Rule 6.16-D (1) an explanation is added to define as to what family is and that definition adopts the definition set out in Rule 6.16-B(1)(a) except certain persons and that Rule clearly includes in a widowed sister. Therefore, in the absence of any option having been exercised by the deceased employee to adopt new Rules, old Rules govern him as rightly held by the High Court following the decision in ‘Jasodhan Devi Vs. State of Punajb’ 1989(6) SLR 664, a widowed sister does become a member of the family who could claim pension under those Rules. So far as this aspect of the matter is concerned, the 2 Civil Writ Petition No.5986 of 2002 view taken by the Courts below is absolutely justified and calls for no interference.” A perusal of the aforesaid portion of the judgment rendered in Ram Rikhi’s case (supra) reveals that in case Shanti Sarup, Canal Patwari and brother of the petitioner had exercised his option to be governed by the Pension Scheme, 1964, then the petitioner was not entitled to pension. Rule 6.17(3) under the head of ‘Family Pension Scheme’ of the Punjab Civil Services Rules defines ‘family’ as under: “6.17(3) “Family” for purposes of this Section 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 (c) sons up to the age of twenty-five years. (d) unmarried daughters upto the age of twenty- five years. Note 1: (c) and (d) will include children adopted legally before retirement. 2: Marriage after retirement will not be recognized for purposes of this Scheme.” However, counsel for the petitioner, relying upon the judgment rendered in Ram Rikhi’s case (supra), has submitted that Shanti Sarup had not exercised his option to be governed by the Pension Scheme, 1964 and therefore, the petitioner will be governed by the rules which were prevailing before enactment of the Pension Scheme, 1964. 3 Civil Writ Petition No.5986 of 2002 According to the rules, which were prevalent before enactment of the Pension Scheme, 1964, a dependent of the employee was entitled to family pension. For saying so, this Court has placed reliance upon Ram Rikhi’s case (supra), wherein their Lordships held that as to whether a widowed sister is dependent upon the Government employee or not, is a question of fact. Since it stands admitted by the respondents that Shanti Sarup had not exercised his option to be governed by the Pension Scheme, 1964, the petitioner will be entitled to pension only in case she is able to prove that she was dependent upon the deceased Shanti Sarup, Canal Patwari. Counsel for the State has stated in categoric terms that the petitioner is having an earning son and she is dependent upon him. This fact has been denied by counsel for the petitioner. This Court, while exercising writ jurisdiction, will not be able to determine as to whether the petitioner was dependent upon the deceased Shanti Sarup, Canal Patwari or not. That can only be proved by the petitioner by adducing evidence before the Civil Court. Payment of pension is a recurring cause. The petitioner had approached this Court by filing present writ petition on 21st March, 2002. Accordingly, it is ordered that in case the petitioner institutes a Civil Suit within a period of three months from the date of receipt of a certified copy of this order and the Civil Court comes to a conclusion that the petitioner was dependent upon Shanti Sarup, Canal Patwari, the arrears of pension shall be restricted to 38 months preceding the date of institution of the present writ petition. Considering the fact that the petitioner is 81 years old lady, it is directed that in case such a civil suit is filed, the Civil Court shall make every endeavour to decide the same expeditiously. 4 Civil Writ Petition No.5986 of 2002 With the observations made above, present writ petition is disposed of, with no order as to costs. [KANWALJIT SINGH AHLUWALIA] JUDGE September 29, 2010 rps 5