IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5457 of 2007 GANDHI THAKUR Versus THE STATE OF BIHAR & ORS ----------- 09/ 12.03.2010 Heard Mr. Gyanand Roy, learned counsel appearing on behalf of the petitioner and Mr. Krishna Kant Singh, learned assisting counsel to G.P. 5 for the State. The issue involved in the writ petition is whether the father of the petitioner dying in harness as a Contingent Menial, had completed the qualifying service to entitle his widow to the payment of family pension. Brief facts of the case is that the father of the petitioner Late Hari Thakur was appointed on 26.11.1960 as a Contingent Menial under respondent no. 5, the In- Charge Medical Officer, Pahadpur and expired while holding the same status on 1.11.1970. It is stated that the widow of the deceased employee represented for payment of family pension vide representations enclosed at Annexure-3 series to the writ petition but the same had no effect and she also expired on 21.2.2007. The writ petition has been filed thereafter by the son of the deceased employee for payment of the family pension admissible to her Late mother for the period after the death of his father on 1.11.1970 until the date of death of his mother on 21.2.2007. 2 A counter affidavit has been filed on behalf of the State and its authorities and in which the date of appointment has been disputed. It is stated that the father of the petitioner Late Hari Thakur was appointed as Ward Attendant in the State Dispensary on 26.11.1960 and he expired while working as Contingent Menial on 1.11.1970. A supplementary affidavit has been filed and in which the petitioner seeks to correct the date of death as mentioned in the writ petition to be read as 1.11.1971, on the basis of an affidavit sworn before the Notary Public. No death certificate has been brought on record of the proceedings in support of the said position. In the counter affidavit, it is stated that though the services of Contingent Menial were regularized under order no. 3850 (14) dated 2.12.1981 issued by the Health Directorate but as the father of the petitioner expired before the issuance of the said order, hence he could not be regularized and thus he is not entitled for payment of the retiral benefits. It is, however, stated that taking a lenient view of the matter the son-in-law of the deceased employee was granted compassionate appointment by the Senior Executive Officer and Civil Surgeon, Motihari vide letter no. 5206 dated 17.12.1971. There is a letter bearing memo no. 1965 dated 11.9.2004 issued from the 3 office of the Chief Medical Officer, East Champaran, Motihari and in which it is stated that the case of the widow of the deceased employee Hari Thakur was pending for appointment since after his death on 10.12.1971. Learned counsel thus submits that taking into consideration that the petitioner had continued in service from 26.11.1960 until 10.12.1971 albeit as a Contingent menial, the widow i.e. the mother of the petitioner was entitled for payment of family pension in the light of the stipulation made in a Government order dated 3.9.1964 (placed at Appendix 5 Part II of the Bihar Pension Rules, 1950), more particularly the paragraph-7 thereof, which, inter alia, provides that in case of death while in service the Government servant who have completed a minimum period of one year of service would be entitled for family pension. Learned counsel thus contends that admittedly the father of the petitioner rendered more than one year of service rather he continued for a period stretching over 10 years and thus in view of the stipulation made in paragraph-7 (i) of the order dated 3.9.1964 as noticed above, the mother of the petitioner was entitled to family pension and the denial thereof despite the representations, was wholly illegal, arbitrary and colourable exercise of power by the authorities. Mr. Krishna Kant Singh, learned counsel 4 appearing on behalf of the State submits that there is a dispute as regarding the continuation of late father of the present petitioner. He submits that there is also a dispute not only regarding his date of appointment but also the date on which he expired. He submits that whereas the petitioner himself admits to the expiry of his father on 1.11.1970 but he as an afterthought has chosen to correct the same relying upon an affidavit of the Notary Public to demonstrate that the father expired on 1.11.1971 but the same has no evidentiary value. He further submits that the said order of 1964 is of no help to the petitioner for the reason contained in paragraph-6, which in no uncertain terms provides that the Scheme would be applicable to all regular employees of pensionable establishment. He thus submits that since it is an admitted position that the father of the petitioner did not come on the pensionable establishment and expired even before his services could be regularized, hence he cannot be entitled for the benefits stipulated in paragraph-7(i) of the said order. Learned counsel further submits that the eligibility criteria of one year service has to be given a harmonious construction with reference to the pre-requisites provided in paragraph- 6 of the said Scheme which provides that the Scheme would be applicable to regular employees of pensionable establishment whether temporary or permanent. He thus 5 submits that as the Rule at the relevant time required even temporary and permanent Government Servants to render 15 years and 10 years of service respectively, for entitlement of pension, hence only if the concerned employee completed the required period of services that he came within a pensionary establishment and the condition of one year service would be fulfilled. He thus submits that the benefits are not applicable to such of the employees who had expired prior to their regularization and/or had not entered the pensionable establishment by completion of required period of service. I find substance in the submission of learned counsel appearing on behalf of the State. Having given anxious consideration to the entire issue in the backdrop of the relevant Rule which was in existence at the time of death of the father of the petitioner it is manifest that it did contain a pre-requisite that it was applicable to a regular employee on a pensionable establishment either temporary or in permanent capacity. It is indisputed that the father of the petitioner never got either a temporary or permanent status and he expired in the state of Contingent Menial. That being so, the relevant provisions required the father of the petitioner to complete at least 15 years service to enter the pensionable establishment. Admittedly the father of the 6 petitioner did not complete 15 years of service. I do not find that petitioner could make out a case for grant of indulgence by this Court. The writ petition is dismissed. Needless to add that the said order would not preclude the authorities to process whatever other benefits that are found admissible to the deceased employee under the relevant rules. S.Sb/- (Jyoti Saran, J.)