403 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No12668 of 2010 DATE OF DECISION October 042011 Milan Rani Petitioner versus The Punjab State Power Corporation Ltd and another 1 eeeRespondents Q CORAM HONBLE MRS JUSTICE DAYA CHAUDHARY 0 0 Presentl Mr J S eMaanipur Advocate for the I petitioner 0 MrGSeLalli Advocate for the respondentSe I e Z DAYA CHAUDHARYJ r I This petition has been filed by Milan Rani the widow of late Shri Babu Ram who was working as Z Beldar on temporary basis with respondent No2 CO Executive Engineer since 191981 till his death ie aw Z 301992 1 The petitioner submitted claim for pensionary benefits as well as for family pension She also served a legal notice upon the respondents but the same was not granted She filed CWP No17750 of 2001 which was disposed of by this Court on 31102003 with a direction to the respondent to decide the legal notice within a period of three Radhika 2014.05.21 10: 45 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:25 I attest to the accuracy and integrity of this document 404 CWP No12668 of 2010 2 months In compliance of the direction issued by this Courtp the claim of the petitioner was denied for appointment on compassionate grounds by passing an order dated 1102004 which was subsequently challenged by way of filing of CWP No3353 of 2005 It was also the prayer of the petitioner in the said petition that the petitioner was entitled for grant j r of family pension The said writ petition was 0 dismissed as withdrawn with liberty to file fresh as 0 I prayer for regularisation of the servlces of the CO husband of the petitioner was not made The husband of the petitioner was entitled for regularisation Z with effect from 11985 as per Policy issued by the State of Punjab which was adopted by the Corporation I on 61991 as it was provided that the employees who Z have completed two years of servlce on 31121990 m were to be regularised with effect from 31121990 7 Z The husband of the petitioner was completing more than 3 years of servlce without any break and he could have been regularised had he been in service at the time of issuance of Policy The claim of the petitioner was denied on the ground that he was not the employee of the State of Punjab The present petition has been filed for direction to the respondents to grant family pension J 1W Radhika 2014.05.21 10: 45 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:25 I attest to the accuracy and integrity of this document 405 CWP Noe12668 of 2010 3 0 1 1 after decision of regularisation of the services of the husband of the petitioner in view of the said policy as he was having 11 years of service on the date of death ie 3081992 and he was deemed to be regularised as per policy of regularisation of the State Government The petitioner 1S entitled to grant of family pension at higher rate as per provlslons under Punjab Civil Service Rules and Family Pension 0 Scheme 1964 which are applicable to the respondent 0 I department 0 Learned counsel for the petitioner submits that the claim of the petitioner has wrongly been Z declined on the ground that the husband of the L petitioner was not their employee as he was the I employee of the Corporation whereaSl this CJ Z controversy has been settled in CWP No13630 of 1993 CO Kasturi Lal and others v Punjab State Electricity 7 Z Board and othersl decided on 30112009 wherein Qm similarly situated employee like the husband of the petitioner was considered to be employee of the State Government and not of the Board It is also the argument of learned counsel for the petitioner that the respondent department 1S a pensionable establishment in terms of Rule 617 of the Family Pension Scheme 1964 and family pension is admissible Radhika 2014.05.21 10: 45 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:25 I attest to the accuracy and integrity of this document 1 406 CWP No12668 of 2010 4 to the family of the deceased government employee who has continuously worked for a period of one year without any break and in case he has less than one year service he should have medically examined by the competent Medical Board The husband of the petitioner was having 11 years of service to his credit Learned counsel for the petitioner has also a relied the judgment of Smt Chameli v e State of 0 Haryana and others 1999 RSJ 688 to contend that 0 111 that case also the benefit of family pension was 0 I granted after ordering for regularisation of services of the deceased employee Learned counsel for the Z petitioner also relied the judgment of Honble Supreme Court 111 SeKeMastan Bee v The General I manager South Central Railway 2003 SCT 367 Z Learned counsel for the respondents opposes rlo the claim of the petitioner on the ground that the W2 Z petitioner 1S not entitled for family pension and her 11 claim was rightly rejected as he was not in service at the time of date of policy The husband of the petitioner died on 3081992 and the policy came into being on 751993 Heard the arguments of learned counsel for the parties and have also perused the documents available on the file 1 Radhika 2014.05.21 10: 45 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:25 I attest to the accuracy and integrity of this document 9 407 CWP No12668 of 2010 5 V 11 J Admittedly the husband of the petitioner was working as Beldar with the respondents Slnce 11981 and he died on 3081992 As per policy dated 71993 framed by the State Government the employees who completed two years of service Were entitled for regularisation Since the husband of the petitioner was not in service at the time of said 1 policy as he expired on 301992 could not be 0 regulaised 0 I Had the husband of the petitioner been alive C5 at the time of framing of policy he would have been I regularised as he was having 11 years of service at Z the time of his death Learned counsel for the r respondents has not contested the eligibility of the husband of the petitioner for the purpose of CJ Z regularisation keeping ln view the total length of r11 servlcee The only objection has been raised by 7 learned counsel for the respondents that the husband Z Oe of the petitioner was not the employee of the Corporation but he was the employee of the State of Punjal This controversy has been considered 111 Kasturi Lals case supral The operative part of the judgment 1S reproduced as underl The appointment by Executive Engineer of Irrigation Department was justified ln Radhika 2014.05.21 10: 45 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:25 I attest to the accuracy and integrity of this document 408 CWP No12668 of 2010 6 Vlew of the order Annexure P3 as specific order was passed by the board glvlng powers of the officers of the board to the officers posted to the hydel projects The project was being financed by the PSEB The petitioners throughout had been paid by the Punjab State 1 Electricity Board therefore it cannot 0 be said that petitioners were employees 0 I of the State Government to ask them to C5 I glve option of fresh appointment The judgment of the Honble Division Bench of Z 2 this Court in State of Punjab and others r Vse Mehanga Ram and others ipral also I has no application to the case as the Z petitioners were not surplus employes of 0 State Government Il 7 Z In view of the said judgment the husband a of the petitioner 1S deemed to be an employee of the Punjab State Electricity Board Tow PSPCLI and 1S entitled to get the pensionary benefits being a regular employee Even otherwise the respondent establishment is a pensionable establishment ln terms of Rule 617 of the Family Pension Scheme 19640 Rule 617 i5 reproduced as underl Radhika 2014.05.21 10: 45 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:25 I attest to the accuracy and integrity of this document 409 CWP No12668 of 2010 7 FAMILY PENSION SCIME 617 The provision of this rule shall apply al to a regular employee of Punjab 1 Government in a pensionable establishment 0 C0 on or after the lst July 1 1964 1 and I bl to a Punjab Government employee C I who was in service on the 30th June 1 1964 and came to be governed by the Z provision of Family pension scheme 1964 1 for Punjab Government employees 1 I Note In the case of a Government Z employee who retired from service or died 10 at any time before the publication of 7 Z this rule the provisions of Family 1 pension scheme 1964 as in force on the 1 date that Government employee retired or died shall apply IlThe following family pension benefits are admissible to the family of a deceased employees Radhika 2014.05.21 10: 45 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:25 I attest to the accuracy and integrity of this document 410 CWP No12668 of 2010 8 Pay of the Government employees Monthl pension of widow 1 widower 1 children iil one thousand rupees eighteen per cent of pay but below one thousand subject to a maximum and eight hundred rupees of two hundred and seventy five rupees 1 r 0 iil one thousand and fifteen per cent of 1 Eight hundred rupees and pay subject to a C5 Above minimum of two hundred I and seventy five rupees Z 2 and a maximum of four r hundred rupees I Z Note I pay for the purpose of this Cn sub clause means the pay as defined in 7 Z rule 244 of Punjab Civil Services Rules Volume I part I which the person was 1 1 drawing on the date of his death while in servlce or immediately before his retlrement If on the date of his death while in service or immediately before his retirement a person has been absent from duty on leave 1 including r1 Radhika 2014.05.21 10: 45 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:25 I attest to the accuracy and integrity of this document 411 CWP No12668 of 2010 9 extraordinary leave 1 or under suspension pay means the pay which he drew 1 immediately before proceeding on such leave or suspension The term pay shall also include dearness pay Note 2 The amount of family pension shall be fixed at monthly rates and be r expressed lIl whole rupee and where the 0 pension contains a fraction of a rupee it 0 I shalloe rounded off to the next higher C5 I rupeeand 21 The scheme will be administered as Z below r iI The family pension will be admissible I lIl case of death while in service or Z after retirement if at the time of death OO the retired Government employee was ln 7 Z receipt of a compensation invalld retlring or superannuatlon penslon In case of death while in service the 1 Government employee should have completed a mlnimum period Of one year of continuous servlce without break The 1 family pension will not be admissible in cases of death after retirement if the 1 Radhika 2014.05.21 10: 45 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:25 I attest to the accuracy and integrity of this document 412 CWP No12668 of 2010 10 retired employee at the time of death was 6 L ln receipt of gratuity only Provided that the condition of completing a mlnlmum period of one year of continuous servlce wi 11 not be applicable ln the case of Government employee who has been medically examined 1 and declared fit for entry into 0 Government servlce 0 I iil The term one year contlnuous 0 I service used in clause 1S inclusive of permanent and temporary servlce ln a Z 2 pensionable establishment and any period of leave including Extraordinary leave I but does not include Boy serVlce and Z suspenslon period unless that 1S f regularised by the competent authority S3 Z iiil In the cases of persons who are 11 transferred to Punjab state from the Central Government or other state Government and in whose case it has been agreed to count theit previous serVlCe for pension the Family pension Scheme would be applicable in the event of their death 1 retirement without putting ln one Radhika 2014.05.21 10: 45 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:25 I attest to the accuracy and integrity of this document 413 CWP No12668 of 2010 11 year continuous service under the state 1 Government if their total service at 1 the time of death inclusive of service rendered under the previous Government 1 exceeds one year Xxx XXXXX XXxxx A similar issue was before the Division m Bench of this Court in case of SmteChamelis case 0 supral wherein the petitioner ln that petition was 0 found entitled for regularisation lrl terms of the I 0 policy even after his death and he was considered to I be deened in service and order for grant of family Z pension was ordered to the widow of the deceased r In the present case the husband of the I petitioner expired on 301992 However she for Z the first time approached this Court in the year m 2001 The writ seeking for appropriate relief was 7 disposed of ln the year 2003 The claim of the Z petitioner for appointment on compassionate grounds was rejected on 1102004 Again the petitioner approached this Court through CWP Noe3353 of 2005 lIl the year 2005 The said writ petition was withdrawn by the petitioner on 29112007 for filing the fresh petition on the same cause of action as she has not made prayer for regularisation of worlcharged servlCSS e After lithdrawal of the said petition the Radhika 2014.05.21 10: 45 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:25 I attest to the accuracy and integrity of this document 1 414 CWP No12668 of 2010 12 petitioner approached this Court through the present petition on 2072010 It 1S apparent from the facts of the case the petitioner renained at fault in approaching this Court for appropriate relief in time Thus the claim of the petitioner is restricted to 38 months only preceding the filing of the writ petition In view of the facts as mentioned above and 0 the law position the present petition is allowed and 0 I the respondents are directed to grant the family 40 I pension and other benefits to the petitioner by considering the husband of the petitioner as regular Z employee of the respondent Cozlooration However the r 4r claim of family pension is restricted to 38 months only preceding the filing the present petition Z Necessary exercise be done within a period of SlX m months and benefits be granted to the petitioner V2 Z within a further period of one month In case there 1S a delay ln payment of the grant of amount of family pension and other benefits the petitioner shall be entitled for interest at the rate of 98 per P anrnlm e 1 0 0 October 04 2011 DAYA CHAUDHARYI 1 J 1 KD JUDGE tt t1 Il Radhika 2014.05.21 10: 45 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:25 I attest to the accuracy and integrity of this document