CW 6966/06 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.6966/06 Sirempwati Versus State & Ors. DATE OF ORDER : 10/12/2008 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Vinod Singhal, for petitioner Mr. J.K. Agrawal, Addl. Govt. Counsel, for State *** Instant petition has been filed by petitioner-widow seeking family pension on account of death of her husband while in service whose claim has not been considered by the respondents on the premise that deceased has not rendered more than 10 yrs. of qualifying service. In absence whereof, she is not entitled for pension under the Scheme of Rules. Husband of petitioner late Shri Udai Veer initially joined service as Helper-cum-Lineman vide order dt.22nd October, 1975 as workcharged employee. He was declared semi-permanent w.e.f. 23rd October, 1977 vide order Ann.2 dt.14th February, 1984 and was further promoted as Helper Gr.I under Rajasthan Engineering Subordinate CW 6966/06 [2] [Public Health Branch] Rules, 1967 [Amended Rules, 1977] vide order dt.15th May, 1985. While holding the post of Helper Gr.I, he died on 17th July, 1985. After death of her husband, the petitioner submitted application for release of terminal benefits due to him available under law including family pension, but the Executive Engineer, PHED was informed by letter dt.15th June, 2006 that her husband has not completed more than 10 yrs. of qualifying service. In absence of any relaxation granted by the competent court, pension is not admissible. Counsel for petitioner submits that new family pension is provided to family of government servant in terms of R.268D to those who had a qualifying service under R.268B and petitioner's husband was holding the post in regular establishment on account of his promotion as Helper Gr.I under Rajasthan Engineering Subordinate [Public Health Branch] Rules, 1967 [Amended Rules, 1977] she was entitled for family pension, but the same has been arbitrarily denied to her. Counsel further submits that one Baso CW 6966/06 [3] Devi who too was similarly situated and her husband has also not completed 10 yrs. of minimum qualifying service, she approached this court by filing CW No.1898/93 which was allowed by learned Single Judge of this court on 5th August, 2002 holding her eligible for grant of family pension and in compliance thereto family pension was paid to her. Respondents have filed reply to the writ petition wherein it has been averred that since the deceased failed to qualify the minimum 10 yrs. service - in absence whereof, she is not entitled for family pension and so far as judgment of learned Single Judge dt.5th August, 2002 is concerned, finally DB SAW No.90/03 was preferred. However, it was dismissed vide judgment dt.11th May, 2004 – against which special leave petition was preferred by the State Government. I have heard counsel for parties and perused the material on record. CW 6966/06 [4] Chapter XXIII-A relates to new family pension under Rajasthan Service Rules. R.268A applies to government servants holding pensionable establishment whether they are temporary or permanent, but are in service on 1st March, 1964 or who enter thereafter at the same time will not apply to those who are members of workcharged staff also and as per R.268B those government servant on pensionable establishment after completion of more than one year's service their family became entitled to new family pension. Relevant Rules 268B & also 268D are reproduced as under: 268B. Admissibility of pension.- Family pension on the rates specified in Rule 268C shall be granted, under this chapter, to the family of an officer who dies on or after the 1st March, 1964.- (a) while in service, after completion of not less than one year's service, provided that in the following cases the condition of one year's service will not be applicable. (i) Persons appointed as probationers against permanent posts. (ii) Persons recruited, through Rajasthan Public Service Commission for appointment on temporary posts within their purview. CW 6966/06 [5] (iii) Persons recruited strictly in accordance with Service Rules in case of temporary posts outside the purview of the Rajasthan Public Service Commission. (b) after retirement from service he was in receipt of retiring or superannuation pension. 268D Definitions (1) “Family”, for the purposes of this chapter, will include the following relations of the officer :- (a) wife, in the case of male officer; (b) husband, in the case of a female officer; (c) minor sons; and (d) unmarried minor daughters. (2) “Continuous service” for the purpose of this Chapter, means service rendered in a temporary or permanent capacity in a pensionable establishment but does not includes the period of service, if any, rendered before attaining the age of eighteen years. Under the Scheme of Rules, family of the deceased government servant who has completed more than one year's service under R.268B are entitled for pension in terms of Chapter XXIII-A of the Rules. Indisputably, the petitioner's husband [deceased government servant] after promotion in regular establishment as Helper Gr.I under Rajasthan Engineering Subordinate [Public CW 6966/06 [6] Health Branch] Rules, 1967 [Amended Rules, 1977] vide order dt.15/5/85 [Ann.3] rendered more than 9 years & 9 months of qualifying service and being member of regular establishment at the time of his death on 17th July, 1985 certainly members of family including present petitioner became entitled for new family pension as admissible under R.268B of the Rules in terms of Chapter XXIII-A which relates to new family pension. Apart from it, similarly situated applicant Baso Devi, her husband has also not completed 10 years of qualifying service, but this court in the judgment [supra] dt.5th August, 2002 has granted her the benefit of new family pension also. Appeal against the said judgment was also dismissed by this court. This court is of the considered opinion that minimum 10 years qualifying service in the instant case was not a condition precedent for grant of new family pension under Chapter XXIII-A of the Rules and action of the respondents denying her new family pension is not legally sustainable and deserves to be set aside. CW 6966/06 [7] Consequently, writ petition stands allowed. Respondents are directed to consider her for grant of new family pension in terms of Chapter XXIII-A and after due computation of its arrears, the same shall be paid to her along with interest @9% from the date it became due till its actual payment. Respondents shall ensure compliance within three months. No costs. [AJAY RASTOGI], J. FRBOHRA6966CW06 10-12.doc