SBCWP No.885/07. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.885/2007. Smt.Violet James Vs. State of Rajasthan & Ors. Date of Order:- August 31, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Mukesh Singhal for the petitioner. Shri Amit Soni for Ms. Ashish Joshi for the respondents. ****** BY THE COURT:- Reportable This writ petition has been filed by petitioner Smt.Violet James widow of Shri Ruby James who was serving with the respondent-State Insurance Provident Fund Department on the post of L.D.C. Petitioner has prayed that the respondents be directed to release the amount of family pension to her and also to direct to consider her case for compassionate appointment. They may SBCWP No.885/07. 2 further be directed to release other terminal dues payable as per rules such as Gratuity, GPF, benefit of State Insurance, Leave Encashment and arrears of Selection Scale. 2) Learned counsel for petitioner submitted that respondent-department has illegally withheld all these benefits because of objections raised by respondent No.5, Smt.Mabul James, mother-in-law of the petitioner whereas petitioner being legal widow of late Shri Ruby James and mother of a daughter aged 13 years now, was entitled to receive all these benefits. 3) Learned counsel for respondent No.5 opposed the writ petition and submitted that there was matrimonial dispute between the petitioner and her late husband Shri Ruby James. Petitioner went to the extent of filing application under Section 125 Cr.P.C. during his lifetime. Court directed payment SBCWP No.885/07. 3 of Rs.500/- per month to the petitioner and Rs.500/- to the daughter. On account of strained relationship, husband nominated his mother to receive benefits of State Insurance, GPF and Group Insurance which payments have been paid to her. However, remaining benefits of gratuity, leave encashment and arrears of selection scale have not been made to her. Learned counsel submitted that even if there was any nomination, as per the provisions contained in Rules 55 and 56 of the Rajasthan Civil Services (Pension) Rules, 1996, she was entitled to receive gratuity and as per Rule 68 of the Rules of 1996, she was also entitled to receive family pension. 4) Learned counsel for the respondents has opposed the writ petition and has also submitted reply to the writ petition. In reply, it has been contended that late Shri Ruby James during his lifetime had nominated SBCWP No.885/07. 4 his mother Smt.Mabul James for receiving above benefits as per rules. However, he did not make any nomination for pension, gratuity and PL, which are pending. Since he did not make any nomination, therefore request of the petitioner for compassionate appointment could not be considered. However, it is submitted that whether or not late Shri Ruby James divorced the petitioner, is a separate question. In so far as payment of State Insurance, GPF and Group Insurance is concerned, same has already been made to mother, respondent No.5. The dispute having remained only for payment of family pension, gratuity and leave encashment and case of the petitioner for compassionate appointment. 5) So far as payment of selection scale is concerned, no pleadings have been made by the petitioner and therefore respondents could not be expected to answer this point. SBCWP No.885/07. 5 Learned counsel for petitioner has raised this point for the first time during the course of arguments. 6) Rule 55(a) of the Rules of 1996 provides that a Government servant, who has completed five years qualifying service and has become eligible for service gratuity or pension under Rule 54 shall, on his retirement, be granted retirement gratuity equal to one-fourth of his emoluments for each completed six monthly period of qualifying service. Rule 55(b) provides that if a Government servant dies while in service, the death gratuity shall be paid to his family in the manner indicated in sub- rule (1) of Rule 56 at the rates given therein. Rule 55(4) defines word 'family' in relation to a Government servant consists of:- (i) wife or wives including judicially separated wife or wives in the case of a SBCWP No.885/07. 6 male Government servant, (ii) husband, including judicially separated husband in the case of a female Government servant, (iii) sons including step sons and adopted sons, (iv) unmarried daughters including step daughters and adopted daughters. (v) widowed daughters including step daughters and adopted daughters, (vi & vii) father & mother including adoptive parents in the case of individuals whose personal law permits adoption, (viii) brothers below the age of eighteen years including step brothers, (ix) unmarried sisters & widowed sisters including step sisters, (x) married daughters, and (xi) children of a predeceased son. SBCWP No.885/07. 7 7) Rule 56 provides that gratuity payable under Rule 55 shall be paid to the person or persons on who the right to receive the gratuity is conferred by means of a nomination under Rule 59. Rule 56(1)(b) provides that if there is no such nomination or if the nomination made does not subsist, the gratuity shall be paid in the manner indicated below - (i) if there are one or more surviving members of the family as in clause (i), (ii), (iii) and (iv) of sub-rule (4) of Rule 55, to all such members in equal shares; (ii) If there are no such surviving members of the family as in sub-clause (i) above, but there are one or more members as in clause (v), (vi), (vii), (viii), (ix), (x) and (xi) of sub-rule 55 to all such members in equal shares. (2) If a Government servant dies after retirement without receiving the gratuity SBCWP No.885/07. 8 admissible under sub-rule (1) of Rule 55, the gratuity shall be disbursed to the family in the manner indicated in sub-rule (1). (3) The right of a female member of the family, or that of a brother, of a Government servant who dies while in service or after retirement, to receive the share of gratuity shall not be affected if the female member marries or remarries, or the brother attains the age of eighteen years, after the death of the Government servant and before receiving her on his share of the gratuity. (4) Where gratuity is granted under Rule 55 to a minor member of the family of the deceased Government servant, it shall be payable to the guardian on behalf of the minor. 8) Rule 67 defines “family pension” payable to- (a) a widow/widower, upto the date of SBCWP No.885/07. 9 death or remarriage, whichever is earlier, (b) unmarried son till he attains the age of twenty five years or on earning a monthly income exceeding Rs.2550/-, (c) daughter including widowed/divorced daughter till she attains the age of 25 years or on earning a monthly income exceeding Rs.2550/- per month or upto the date of her marriage/remarriage, whichever is earlier, (d) parents who were wholly dependant upon the Government servant when he/she was alive provided the deceased employee had left behind neither a widow nor a child and the income of parent is not more than Rs.2550/-. 9) Second proviso of the said rule provides that before allowing the family pension for life to any such son or daughter, the sanctioning authority shall satisfy that the handicap is of such a SBCWP No.885/07. 10 nature so as to prevent him or her from earning livelihood evidenced by a certificate obtained from a medical officer not below the rank of Chief Medical & Health Officer/Medical Jurist setting out, as far as possible, the exact mental or physical incapacity. 10) Third proviso of the said rule provides that the person receiving the family pension as natural/legal guardian of such son or daughter or such son or daughter not receiving the family pension through the guardian, shall produce every three years a certificate from a medical officer not below the rank of Chief Medical & Health Officer/Medical Jurist to the effect that he or she continues to suffer from disorder or disability of mind or continues to be physically crippled or disabled. 11) Rule 68 relate to 'order of allotment' (allotment of pension) which SBCWP No.885/07. 11 prescribes the procedure, as follows:- (a)(i) Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares. (ii) On the death of a widow, her share of the family pension shall become payable to her eligible child. 12) In view of the above provisions therefore, petitioner who is legally wedded wife and the marriage was not dissolved at the relevant point of time, she is entitled to receive terminal benefits of her late husband. Apart from entitlement of the petitioner to receive terminal dues, she is also entitled to be appointed on compassionate ground but no such specific case has been set up by the petitioner in the pleadings and for that, liberty is granted to her to agitate the issue before the respondents. If it is found that any payment of arrears of selection scale is SBCWP No.885/07. 12 found payable, same shall also be paid to her. Writ petition is partly allowed. Respondents are directed to consider the case of the petitioner for compassionate appointment and pass appropriate orders within a period of four months. Respondents are also directed to pay to the petitioner family pension as also the gratuity and leave encashment and earned leave within a period of three months. (MOHAMMAD RAFIQ) J. anil