1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4226 OF 1994. Dwarkabai W/o Chindhu Chaudhary Age : Major, Occ. Household, R/o : Bornar, Tq. Jalgaon, Dist. Jalgaon. .... PETITIONER V E R S U S 1. The State of Maharashtra Through Desk Officer, Rural Development and Water Conversion Department, Mantralaya, Mumbai. 2. Chief Executive Officer Zilla Parishad, Jalna. 3. Block Education Officer Panchayat Samiti, Bhokardan, Tq. Bhokardan, Dist. Jalna. 4. Education Officer ( Primary ), Zilla Parishad, Jalna. 5. Head Master Central Primary School, Nalni (Bk.), Tq. Bhokardan, Dist. Jalna. 6. Chief Executive Officer Zilla Parishad, Aurangabad. .... RESPONDENTS 2 Mr. M.K.Deshpande, Advocate for petitioner. Mr. K.B.Choudhari, Additional Govt. Pleader for State. Mr. S.S.Barlota, Advocate holding for Mr. S.K.Barlota, Advocate for respondent no. 6. CORAM : B.R.GAVAI AND S.V.GANGAPURWALA, JJ. DATE : 15/06/2010 ORAL JUDGMENT : [ PER - B.R.GAVAI, J. ] 1. The petition has been filed by the present petitioner claiming for family pension. However, during the pendency of the petition, the proposal of the petitioner for family pension has been rejected by the State Govt. dated 8/7/2005 and, therefore, the said order has also been challenged by way of amendment in the petition. 2. The petitioner’s husband was appointed on 12/10/1960. The husband of the petitioner was unauthorizedly absent from his service from 14/1/1974. During the period of said unauthorized absence, he died on 20/2/1980. Thereafter in the year 1993, the present applicant filed application for grant of family pension. Since the same was not granted, the present petition has been filed. 3. Shri. M.K.Deshpande, the learned counsel for the petitioner submits that the husband of the petitioner had rendered services for period of 14 years and as such petitioner is entitled for family pension as per Rule 116 of the M.C.S.R. (Pension Rules) (For Short, ‘ said Rules ’ ). He submits that 3 the Order dated 8/7/2005 is also unsustainable in law in as much as Rule 48 empowers the appointing authority to condone the interruption in service of Govt. servant. 4. The petition has been filed after 13 years of the death of the husband of the petition. Normally, the petition could have been rejected on the ground of delay and latches. Since the petition is already admitted, we are not inclined to dismiss the petition on the ground of delay and latches. Since the petitioner has waited for justice for 16 years, it would not be in the interest of justice to dismiss it on the technical ground. Therefore, we are deciding the petition on its own merits. 5. It is undisputed position that the husband of the petitioner was unauthorizedly absent from 14/1/1974 to 20/2/1980. The petitioner’s husband had neither submitted any application nor any Medical Certificate for treating the absence as authorized. During the period of said absence, he expired on 20/2/1980. 6. The provisions of Rule 116, which provides for family pension, would be applicable only when the Govt. servant dies after completion of one year of continuous service or before completion of one year continuous service provided the deceased Govt. servant concerned immediately prior to his appointment to the service or post was examined by the appropriate medical authority and declared fit by that authority for Govt. service. However, for considering as to whether an employee was in continuous service for period of one year or not, recourse would be necessary to the other 4 relevant provisions of the said Rule. Rule 47 of the said Rules specifically deals with the effect of interruption in service. Sub Rule (1) of the said Rules specifically provides that an interruption in service of Govt. servant entails forfeiture of his past service. Certain exceptions are carved out in the said sub rule. The petitioner’s husband’s case does not fall in any of the exceptions. 7. In that view of the matter, on account of unauthorized absence, the petitioner’s husband’s services would be entail to the forfeiture of his past service. Rule 48 of the said Rules enables an appointing authority to condone the interruption in the service. However, the said power is also circumscribed. The proviso to sub rule (1) and specifically clause ( a ) and ( c ) would require that it is necessary for the Govt. servant to establish that the interruptions were caused due to the reasons beyond his control and interruptions were not for the period exceeding one year. Such is not the case here. 8. In that view of the matter, we do not find any infirmity in the Order dated 8/7/2005, thereby holding that the petitioner was not entitled for family pension. No merit is found in the petition. The present Writ Petition is, therefore, dismissed. Rule is discharged. [ S.V.GANGAPURWALA ] [ B.R.GAVAI ] JUDGE JUDGE knp/WP 4226.94 5