Himachal Pradesh High Court

__________________________________________________________ vs The State Of H.P. And Others on 4 June, 2025

Author:
Vivek Singh Thakur

Bench:
Vivek Singh Thakur

[2020:HHC:10518-DB]

IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
CWPOA No.267 of 2020
Reserved on: 29.05.2025
Announced on : 04.06.2025
__________________________________________________________
Satya Devi .....Petitioner
Versus
The State of H.P. and others ......Respondents

Coram
Hon'ble Mr. Justice Vivek Singh Thakur, Judge
Hon'ble Mr. Justice Ranjan Sharma, Judge
1Whether approved for reporting? Yes

For the petitioner: Mr. A.K. Gupta and Ms. Babita
Chauhan, Advocates.

For the respondents: Mr. Anup Rattan, Advocate
General with Mr. Manoj Chauhan,
Additional Advocate General, for
respondents No.1 to 4-State.

Mr. Lokender Paul Thakur, Senior
Panel Counsel, for respondent
No.5-Senior Deputy Accountant
General, Himachal Pradesh.

s

Ranjan Sharma, Judge

Petitioner, Satya Devi, being the widow of

Shri Jagat Ram, has come up before this Court, seeking

the following relief:-

"That the respondents may be ordered to
grant family pension to the applicant from
the due date with all the benefits incidental
thereof."

1 Whether reporters of Local Papers may be allowed to see the judgment?

-2- [2020:HHC:10518-DB]

FACTUAL MATRIX:

2. Case set up by Learned Counsel for the

petitioner is that her husband, Late Shri Jagat Ram

was engaged as Beldar in Irrigation & Public Health

Department, Division Arki, District Solan, Himachal

Pradesh in the year 1994 and he continued as such

under the Respondents. Though late husband of

the petitioner became eligible and entitled for conferment

of work charge status on completion of eight years

of continuous service but, the said benefit was denied

to her late husband, who ultimately expired while serving

on daily wage basis on 17.03.2007.

2(i). After the death of her late husband

Shri Jagat Ram on 17.03.2007, the present petitioner,

filed an Original Application No.4699 of 2015, titled as

Satya Devi Versus State of Himachal Pradesh and others,

praying for conferment of work charge status in terms

of the mandate of this Court in CWP No.2735 of 2010,

titled as Rakesh Kumar Versus State of H.P. &

ors. alongwith connected matters, decided on

28.07.2010. In terms of order dated 10.05.2016

-3- [2020:HHC:10518-DB]

[Annexure R-1], the work charge status was granted to

the petitioner's husband, late Shri Jagat Ram,

posthumously w.e.f. 01.01.2002, as Beldar, in the pay

scale of Rs.2520-4140 by the Respondents. After

conferment of regularization/work charge status, the

petitioner had filed the instant petition, on 21.09.2016,

praying for grant of family pension to the petitioner,

being widow of late Shri Jagat Ram [supra], with all

consequential benefits incidental thereof.

PROCEEDINGS BEFORE STATE
ADMINISTRATIVE TRIBUNAL AND BEFORE THIS
COURT:

2(ii). Petitioner had filed an Original Application

No.4828 of 2016 before the State Administrative

Tribunal in which notices were issued on 22.09.2016

directing the respondents to file reply.

STAND OF STATE AUTHORITIES IN REPLY-
AFFIDAVIT:

3. Pursuant to issuance of notice, Respondents

No.1 to 4 have filed Reply dated 26.11.2016 on the

affidavit of Superintending Engineer, Irrigation &

Public Health Department, Circle, Shimla-9.

3(i). A perusal of Reply-Affidavit admits the

-4- [2020:HHC:10518-DB]

factual matrix of the case that the husband of the

petitioner, late Shri Jagat Ram was engaged as

Beldar in the year 1994 and he expired during service

on 17.03.2007. Reply-Affidavit further indicates that

pursuant to filing of a petition by present petitioner,

the case of late Shri Jagat Ram, husband of petitioner

was considered and found eligible for grant of work

charge status w.e.f. 01.01.2002, on completion of

eight years of continuous service from 1994 to

30.12.2001. Reply-Affidavit further indicated that as

per orders dated 10.05.2016, Annexure R-1, husband of

the petitioner, late Shri Jagat Ram was regularized as

work charge Beldar w.e.f. 01.01.2002, in the pay scale

of Rs.2520-4140 posthumously [having expired on

17.03.2007]. Reply-Affidavit further indicates that

after having been conferred regular/work charge

status w.e.f. 01.01.2002 as per orders dated 10.05.2016,

Annexure R-1, petitioner, who was governed by

Fundamental Rule [FR]-56 had a right to continue in

service upto the age of superannuation of 58 years

on 30.06.2006 and accordingly since the petitioner

-5- [2020:HHC:10518-DB]

had continued in service as daily wager, till his death on

17.03.2007, therefore, the respondents issued order

on 02.06.2016, Annexure R-2, treating the petitioner's

husband to have been deemed retired from service

w.e.f. 30.06.2006. The Executive Engineer, Irrigation

& Public Health Department, Division issued another

order dated 07.11.2016, Annexure R-3, whereby, the

period beyond the deemed date of retirement on

30.06.2006 till his death on 17.03.2007 was treated

as period of re-employment on daily wage basis. This

order further indicated that this period [i.e. 30.06.2006

to 17.03.2007] shall not be counted for pensionary

or other retiral benefits.

3(ii). So far as the claim of the present petitioner,

Satya Devi, for family pension is concerned, Reply-

Affidavit indicated that petitioner is not entitled for

grant of pension/family pension as her husband had

rendered 4 years and 6 months service on work

charge basis which was short of 10 years of regular

service and, therefore, the petitioner was not eligible

for family pension under the Central Civil Services

-6- [2020:HHC:10518-DB]

[Pension] Rules, {in short 'CCS [Pension] Rules'} In

Para 6(i) of Reply-Affidavit, Respondents had stated that

family pension was admissible only in two cases,

when, a Government official is drawing a pension after

his death and then, his family becomes eligible for family

pension and, secondly, when the person is working

on regular basis and he dies while in service. In this

background, a prayer has been made for dismissing the

instant writ petition.

REBUTTAL BY PETITIONER:

4. Petitioner, Satya Devi, had filed a rejoinder

on 29.04.2024 stating that petitioner's husband

had rendered more than six years' service till

his death on 17.03.2007. Rejoinder-Affidavit indicates

that as per Family Pension Rules, if a Government

servant has rendered more than one year's service on the

date of death, without being medically examined then,

the family pension was admissible to legal heirs/eligible

family members. It is further averred in the rejoinder,

that based on similar fact situation, benefit of family

pension has been given to another widow, namely,

-7- [2020:HHC:10518-DB]

Kalawati, in CWP(T) No.8894 of 2008 and the aforesaid

judgment has attained finality.

EARLIER ROUND OF LITIGATION IN INSTANT
CASE:

5. Material on record indicates that instant

CWPOA No.267 of 2020 [originating from OA

No.4828 of 2016] was decided by this Court on

16.10.2020 but, the State Authorities filed a Review

Petition No.239 of 2022, titled as State of Himachal

Pradesh and others Versus Smt. Satya Devi and

another, which was decided by a Division Bench of

this Court on 28.11.2022, whereby the judgment dated

16.10.2020 was reviewed and CWPOA No.267 of 2020

was restored to file and was directed to be listed

after three weeks.

6. Heard, Mr. A.K. Gupta, Advocate for the

petitioner and Mr. Anup Rattan, Learned Advocate

General assisted by Mr. Manoj Chauhan, Learned

Additional Advocate General, for the Respondents.

STATUTORY PROVISIONS:

7. Before analyzing the claims and

contentions of the parties herein, it is necessary to

-8- [2020:HHC:10518-DB]

have a recap of relevant Statutory Provisions of Rule

3 (1) (f) and Rule 54 of CCS [Pension] Rules, 1972,

as applicable to the employees of the Respondents-

State, governing the admissibility of family pension,

in the following terms:-

"3. Definitions:

3(1) (a) to (e)................Not relevant...............

3(1) (f):

'Family Pension' means 'Family Pension, 1964',
admissible under Rule 54 but does not include
dearness relief.

54. Family Pension, 1964

(1) The provisions of this rule shall apply-

(a) to a Government servant entering
service in a pensionable
establishment on or after the 1st
January, 1964; and

(b) to a Government servant who was in
service on the 31st December, 1963
and came to be governed by the
provisions of the Family Pension
Scheme for Central Government
Employees, 1964, contained in the
Ministry of Finance, Office
Memorandum No. 9 (16)-E. V (A)/63,
dated the 31st December, 1963, as in
force immediately before the
commencement of these rules.

[NOTE-The provisions of this rule will also
extend, from 22nd September, 1977, to
Government servants on pensionable
establish-ments who retire/died before 31-
12-1963, as also to those who were alive

-9- [2020:HHC:10518-DB]

on 31-12-1963, but had opted out of 1964
Scheme.]

(2) Without prejudice to the provisions
contained in sub-rule (3), where a
Government servant dies-

(a) after completion of one year of
continuous service; or

(aa) before completion of one year of
continuous service, provided the
deceased Government 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 Government service; or

(b) after retirement from service and was on
the date of death in receipt of a pension,
or Compassionate Allowance, referred to
in Chapter V. other than the pension
referred to in Rule 37,
the family of the deceased shall
be entitled to Family Pension, 1964
(here- inafter in this rule referred to as
family pension) the amount of which shall
be determined in accordance with the
Table below:

EXPLANATION
The expression 'continuous one year
of service' wherever it occurs in this
rule shall be construed to include than
one year of continuous service' as
defined in Clause (aa).

(2-A) The amount of family pension shall
be fixed at monthly rates and be
expressed in whole rupees and where
the family pension contains a fraction
of a rupee, it shall be rounded off to the
next higher rupee:

Provided that in no case a family
pension in excess of the maximum

- 10 - [2020:HHC:10518-DB]

prescribed under this rule shall be
allowed.

Rule 54 (3) (a) (i) to
(11-B) (a) (b): ............Not relevant..........

Rule (11-C) (a):

If a person, who in the event of death
of a Government servant while in
service, is eligible to receive family
pension under this rule, is charged
with the offence of murdering the
Government servant or for abetting in
the commission of such an offence, the
claim of such a person, including other
eligible member or members of the
family to receive the family pension,
shall remain suspended till the
conclusion of the criminal proceedings
Instituted against him.

Rule 54 (11-C) (b) to
(13-A):................Not relevant................

Rule (13-B):

Family Pension admissible under
this rule shall not be granted to a
person who is already in receipt of
Family Pension or is eligible therefor
under any other rules of the Central
Government or a State Government
and/or Public Sector Undertaking/
Autonomous Body/Local Fund under
the Central or a State Government:

Provided that a person who is other
eligible for family pension under this
rule may opt to receive family pension
under this rule if he forgoes family
pension admissible from any other
source.

Provided further that family pension
admissible under the Employees
Pension Scheme, 1995 and
the Family Pension Scheme, 1971,

- 11 - [2020:HHC:10518-DB]

shall, however, be allowed in addition
to the Family pension admissible under
these rules.

Rule (14) For the purpose of this rule:

(a) "continuous service" means service
rendered in a temporary or permanent
capacity in a pensionable establishment
and does not include:-

(i) Period of suspension, if any; and

(ii) Period of service, if any rendered before
attaining the age of eighteen years;

(b) "family" in relation to a Government
servant means___

(i) Wife in the case of a male Government
servant, or husband in the case of a
female Government servant.

(ia) a judicially separated wife or husband,
such separation not being granted on the
ground of adultery and the person
surviving was not held guilty of
committing adultery.

(ii) son who has not attained the age of
twenty-five years and unmarried daughter
who has not been attained the age of
twenty-five years, including such son and
daughter adopted legally.

(c) "pay" means:-

(i) the emoluments as specified in Rule-33,
or

(ii) the average emoluments as referred to in

Rule 34 if the emoluments of the deceased
Government servant have been reduced
during the last then months of the service
otherwise than as penalty."

ANALYSIS:

- 12 - [2020:HHC:10518-DB]

8. Taking into account the entirety of facts

and circumstances, this Court is of the considered

view that claim of present petitioner, Satya Devi, for

family pension on account of death of her late

husband, Shri Jagat Ram on 17.03.2007 during service

carries weight; entitling the petitioner for family pension

w.e.f. 17.03.2007, for the following reasons:-

8(i). Petitioner's husband, late Shri Jagat

Ram, was engaged as daily wage Beldar in 1994

and he served as such with continuous service

upto 31.12.2001. He completed eight years of continuous

service and became eligible for regularization/conferment

of work charge status, on completion of eight years of

service w.e.f. 01.01.2002. This benefit was denied to the

petitioner's husband till his death on 17.03.2007.

However, after filing of a petition by the present

petitioner i.e. OA No.4699 of 2015 and in compliance

thereto, the Executive Engineer, Irrigation and Public

Health Department, Division Arki, District Solan,

Himachal Pradesh, passed order dated 10.05.2016,

Annexure R-1, regularizing and giving the work charge

- 13 - [2020:HHC:10518-DB]

status to petitioner's husband posthumously w.e.f.

01.01.2002 till 17.03.2007 [i.e. the date he expired].

Respondent-Executive Engineer issued an order on

02.06.2016, Annexure R-2, whereby, the petitioner's

husband, late Shri Jagat Ram, was deemed to have

retired from service on 30.06.2006 i.e. the date on

which he attained the age of fifty-eight years. Another

order was issued on 07.11.2016, Annexure R-3, whereby,

the period from 30.06.2006 till 17.03.2007 was

directed not to be counted for any pensionary or other

retiral benefits. At this stage, it is important to note

that since petitioner's husband was engaged in service

on daily wage basis prior to 10.05.2001 then, in

terms of Full Bench mandate of this Court, in CWP

No.2711 of 2017, titled as Baldev Versus State of

Himachal Pradesh and others, the petitioner's

husband, late Shri Jagat Ram, had a right to continue

upto the age of sixty years or in this case till his death

on 17.03.2007 [i.e. beyond the age of 58 years on

30.06.2006 to 17.03.2007] and such, the entire

period was countable as service period for extending

- 14 - [2020:HHC:10518-DB]

benefit of pension/family pension as the case may be. In

this background, the service rendered by the petitioner's

husband, Late Shri Jagat Ram, is to be treated as

regular/work charge employee [w.e.f. 01.01.2002 till

his death on 17.03.2007] comes to five years and three

months.

8(ii). Indisputably, once the petitioner's

husband, late Shri Jagat Ram, had rendered five

years and three months of service from 01.01.2002

till his death on 17.03.2007, therefore, in terms of

FR-56 and the mandate of Full Bench judgment of this

Court, in the case of Baldev [supra], the present

petitioner widow is eligible, for family pension

in terms of FR-54 (2) (a) of CCS [Pension] Rules by

taking into account that the petitioner's husband had

died "after completion of one year's continuous service."

Moreover, as per Rule 54 (14) of CCS [Pension]

Rules, expression "continuous service", means the

service rendered in temporary capacity in a pensionable

establishment. An exception has been carved out, to

Rule 54 (14) of CCS [Pension] Rules, even if the

- 15 - [2020:HHC:10518-DB]

employees had died after one year's continuous

service yet the family pension can be denied if,

such continuous service is not in a pensionable

establishment; and during such service the deceased

employee was not under suspension; and such

continuous service was rendered before attaining the

age of eighteen years. Similar ineligibility is carved

out in Rule 54 (13-B), denying family pension, in

case, the person claiming family pension is already

in receipt of family pension or is eligible therefor

under any other Rules of Central/State Government

and/or PSU or Autonomous body/Local Body under

Central/State Government.

In this backdrop, this Court is of the

considered view, that once the petitioner's husband,

late Shri Jagat Ram, had died after rendering one

year's continuous service [from 01.01.2002 till his

death on 17.03.2007]; coupled with the fact that

during such service, petitioner's husband was neither

under suspension nor such service was rendered

before attaining the age of eighteen and the petitioner

- 16 - [2020:HHC:10518-DB]

is neither in receipt of nor is she eligible for family

pension under any other Rules [under Rule 54 (14)

or 54 (13-B) of CCS Pension Rules] but the service

was rendered by the petitioner's husband in a

pensionable establishment; then, the present petitioner

who does not fall under any of the ineligibility

or disqualifying conditions; and therefore, in these

circumstances, the petitioner-widow widow is eligible

and is held entitled for family pension from the

date of death of her husband on 17.03.2007.

8(iii). The admissibility of family pension under

Rule 54 of CCS [Pension] Rules has merit, in view

of the fact that petitioner being the widow of late

Shri Jagat Ram falls within the ambit of family

under Rule 54 (2) of CCS [Pension] Rules read

with Rule 54 (14) (b) of said Rules; coupled with the

fact that the petitioner's husband had rendered more

than one year's continuous service, as referred to

above [from 01.01.2002 till his death on 17.03.2007]

then, the petitioner being the widow, is eligible

and entitled for family pension w.e.f. date of death

- 17 - [2020:HHC:10518-DB]

of her husband on 17.03.2007.

8(iv). Eligibility and entitlement of family pension

and the admissibility of family pension is a legal

entitlement constituting property of family member

of deceased including the present petitioner. Once

Rule 54 of CCS [Pension] Rules mandates for grant

of family pension to eligible member of a family of

deceased employee, who dies after completion of one

year's continuous service and such the continuous

service is rendered in a temporary capacity in a

pensionable establishment and such service does not

precedes any stigma of suspension or such service

was not rendered before attaining the age of eighteen

years and there is no other provision in Rule 54

of CCS [Pension] Rules, disentitling the present

petitioner- widow for family pension, therefore, in these

circumstances, the denial of family pension, which

is a property, within the meaning of
Article 300-A
of

the Constitution of India being without authority of

law cannot sustain. Moreover, the deprivation of family

pension without issuing prior notice, without affording

- 18 - [2020:HHC:10518-DB]

an opportunity of personal hearing has visited

the petitioner with civil consequences resulting in

depriving the petitioner of her legal entitlement of

family pension was 17.03.2007 till day, and the

State action is not sustainable, in the eyes of law.

Accordingly, denial of family pension to widow of

late Shri Jagat Ram on w.e.f. 17.03.2007, is quashed

and set-aside.

8(v). While dealing with similar situation,

Co-ordinate Bench of this Court has allowed the

family pension to one Kalawati being widow of late

Shri Roop Singh, work charge Beldar upon completion

of one year's continuous service in CWP(T) No. 8894

of 2008, titled as Smt. Kalawati Versus The State

of Himachal Pradesh and others in the following

terms:-

"The petitioner is the wife of deceased Roop
Singh, who was working with the
respondents. It is undisputed before me
that deceased Roop Singh was offered a
temporary post of Work-charged Beldar
w.e.f. 1.1.1994 in the pay scale of Rs.770-
1410 vide Annexure R2 on the terms and
conditions as submitted therein. It is also
undisputed before me that deceased Roop
Singh died on 25.2.1995 and that he joined
his services as daily waged Beldar in

- 19 - [2020:HHC:10518-DB]

H.P.PWD, Rajgarh on 1.1.1994. Learned
counsel for the petitioner relies upon
Rule 54 sub-rule (2) (a) of the CCS
(Pension) Rules 1972 to urge that since
the deceased has put more than one year
service with the State Government, he
was entitled to family pension.

2. This prayer is opposed by the learned
Assistant Advocate General primarily on the
ground that there is nothing on the record
to establish that after issuance of Annexure
R2, the deceased had actually joined service
or not. I cannot accept this submission
made on behalf of the respondents.
According to the man-days chart (Annexure:

R1) prepared by the respondents, the
deceased reported for duty on January,
1994. There is nothing on the record placed
by the respondents to show that the
deceased Roop Singh had voluntarily
abandoned services with the respondents.

3. In these circumstances, this writ petition
is allowed. I direct that the petitioner be
granted the family pension in accordance
with the Rules applicable. Petition is
disposed of. No order as to costs."

In backdrop of the mandate of law in the

case of Kalawati [supra], once the petitioner, Satya

Devi, being the widow of late Shri Jagat Ram is

similarly placed and is eligible and entitled for family

pension under Rule 54 (2) (a) of CCS (Pension) Rules

by taking into account one year's continuous service

rendered by her deceased husband, then, the present

petitioner being similarly placed, is entitled for the

- 20 - [2020:HHC:10518-DB]

benefit of said judgment in the instant case also.

8(vi). The intent and object of family pension is

to give breather to the family members of deceased,

so as to enable the distressed family to eke out a

living due to demise of a government servant. Grant

of family pension being socio-economic schemes is

aimed at ensuring decent standard of life in the

december of life needs to be given a purposive and

liberal interpretation, in favour of family members

who seek family pension in a case.

8(vii). The intent and object of a family pension has

been outlined by the Hon'ble Supreme Court in

Bhagwanti Versus Union of India and connected

matter, (1989) 4 SCC 397, in the following terms:-

"9. Pension is payable, as pointed out in
several judgments of this Court, on the
consideration of past service rendered
by the Government servant. Payability of
the family pension is basically on the
self same consideration. Since pension
is linked with past service and the
avowed purpose of the Pension Rules is
to provide sustenance in old age,
distinction between marriage during service
and marriage after retirement appears to be
indeed arbitrary. There are instances where
a Government servant contracts his first
marriage after retirement. In these two cases
before us, retirement had been at an early
age. In the Subedar's case, he had retired

- 21 - [2020:HHC:10518-DB]

after putting in 18 years of service and the
Railway employee had retired prematurely
at the age of 44. Premature or early
retirement has indeed no relevance for
deciding the point at issue. It is not the case
of the Union of India and, perhaps there
would have been no force in such contention
if raised, that family pension is admissible
on account of the fact that the spouse
contributed to the efficiency of the
Government servant during his service
career. In most cases, marriage after
retirement is done to provide protection,
secure companionship and to secure support
in old age. The consideration upon which
pension proper is admissible or the benefit of
the family pension has been extended do not
justify the distinction envisaged in the
definition of 'family' by keeping the post-
retiral spouse out of it."

8(viii). Claim for pension, including family pension

originating from Rules/OM not a bounty but is a

social welfare measure payable to the distressed

family member of the family of the deceased so

as to maintain the family has been outlined by

the Hon'ble Supreme Court, in V. Sukumaran Versus

State of Kerala and another, (2020) SCC 106, in

the following terms:-

1. Pension is succour for post-retirement
period. It is not a bounty payable at will,
but a social welfare measure as a post-

retirement entitlement to maintain the
dignity of the employee. The appellant
has been claiming his entitlement for the
last almost 13 years but unsuccessfully,
despite having worked with Government

- 22 - [2020:HHC:10518-DB]

departments in various capacities for about
32 years.

18. Learned counsel for the appellant also
sought to emphasise that pension is a
right vested in a Government servant
and is not a bounty payable at the will
and pleasure of the Government as also
that pension is a social welfare measure
and a post retirement entitlement;
something with which we began our
order. (D.S. Nakara v.Union of
India, U.P.
Raghavendra Acharya v. State of Karnataka
,

Deokinandan Prasad v. The State of Bihar
.}

22. We begin by, once again, emphasising that
the pensionary provisions must be given
a liberal construction as a social welfare
measure. This does not imply that
something can be given contrary to rules,
but the very basis for grant of such
pension must be kept in mind, i.e., to
facilitate a retired Government employee
to live with dignity in his winter of life
and, thus, such benefit should not be
unreasonably denied to an employee,
more so on technicalities."

9. Plea of the State Authorities in Reply-

Affidavit is that petitioner's husband had died on

17.03.2007 as a work charge Beldar and, therefore,

family pension was not admissible to the present

petitioner.

9(i). Above plea of the State Authorities is

negativated in view of the provision of Rule 54 (2) (a)

read with Rule 54 (14) (a) of CCS [Pension] Rules,

which entitles a widow, including the petitioner for

- 23 - [2020:HHC:10518-DB]

family pension, in case the employee had died after

rendering one year's continuous service and such

continuous service means service rendered in a

temporary capacity in pensionable establishment. In

these circumstances, once the petitioner's husband

was granted regularization/work charge status on

10.05.2016 [Annexure R-1] posthumously; then, the

service w.e.f. 01.01.2002 till death on 17.03.2007

by petitioner's husband, in a temporary capacity, in

a pensionable establishment makes present petitioner

-widow as eligible and entitled for family pension.

The artificial classification sought to be invoked by

State Authorities, by taking the plea that the work

charge service [from 01.01.2002 till death of her

husband on 17.03.2007] is not to be counted for

pension/family pension, is misconceived and devoid

of any merit, for the following reason, that such work

charge service, is in a time scale of Rs.2520-4140,

and is a service rendered or taken to be rendered in

a temporary capacity in a pensionable establishment.

Moreover, pursuant to judgment passed by this Court

- 24 - [2020:HHC:10518-DB]

in
Sukru Ram Vs. The State of H.P. and others

[CWP No.6167 of 2012] decided on 06.03.2012 and

in State of Himachal Pradesh & Others Versus

Sh. Matwar Singh & Another [CWP No.2384 of

2018] decided on 18.12.2018, the service rendered

on work charge basis is held to be countable

for pension/family pension.
The operative part of the

judgment in case of Matwar Singh [supra] reads as

under:-

"The challenge laid in this writ petition is to
the order dated 31st July, 2017, passed by
the H.P. State Administrative Tribunal in
O.A. No.6681 of 2016, titled as
Matwar
Singh versus State of Himachal Pradesh
and Others
, whereby the respondent's claim
to count the work charge service towards
qualifying service for the purpose of pension
and other retiral benefits has been
accepted.

2. The facts are not in dispute. The private
respondent joined the petitioners'
Department as daily waged worker in the
year 1992 at Saraswati Nagar Range under
the jurisdiction of the Divisional Forest
Officer, Forest Division, Rohru, Distt.
Shimla. He was subsequently conferred
status of work charge employee w.e.f.
01.05.2002. His services were later on
regularized as Forest Worker w.e.f.
06.09.2007 as per the policy of the
State Government. It appears that the
respondent's claim for grant of pension
was declined on the ground that he did
not possess the requisite qualifying
service. It is in this backdrop that the

- 25 - [2020:HHC:10518-DB]

respondent approached the Tribunal and
his claim has been accepted.

3. It is by now well settled that the work
charge status followed by regular
appointment has to be counted as a
component of qualifying service for the
purpose of pension and other retiral
benefits. Executive instructions, if any,
issued by the Finance Department to the
contrary, are liable to be ignored/struck
down, in the light of view taken by this
Court in CWP No.6167 of 2017, titled

Sukru Ram vs. State of H.P. & others
,
decided on 6th March, 2013.

A Full Bench
of Punjab and Haryana High Court in

Keshar Chand vs. State of Punjab

through the Secretary P.W.D. B & R
Chandigarh and others, (1988) 94(2) PLR
223, also dealt with an identical issue
where Rule 3.17(ii) of the Punjab Civil
Services Rules excluded the work charge
service for the purpose of qualifying service.
Setting aside the said Rule being violative of

Articles 14
and
of the Constitution of
India, it was held that the work charge
service followed by regular appointment
will count towards qualifying service for
the purpose of pension and other retiral
benefits. The aforesaid view was also
confirmed by the Hon'ble Apex Court.

4. For the afore-stated reasons, we do not
find any error in the impugned order passed
by the Tribunal. Accordingly, the writ
petition is dismissed alongwith pending
application(s), if any."

10. Learned State Counsel submits that the

family pension cannot be granted as the service was

rendered by petitioner's husband Late Shri Jagat Ram

in a temporary-work charge capacity.

10(i). For better analysis, a perusal of the
- 26 - [2020:HHC:10518-DB]

communication dated 25.11.1975 issued by Finance

Department, which forms part of judgment, in case

of Beli Ram Versus State of H.P. and another

[CWPOA No.52 of 2019] decided on 10.09.2020, reads

as under:-

"27. At this stage, a communication dated
25.11.1975 sent from the Secretary (PW)
to the Government of Himachal Pradesh,
to the Chief Engineers, HPPWD, is also
relevant for reference, whereby with
concurrence of Finance Department, it
has been clarified that all work-charged
employees, including temporary
industrial workers, are to be treated to
be part of pensionable establishment. The
said communication is reproduced as
under, for convenience:

From

The Secretary (PW) to the
Government of Himachal Pradesh

To

The Chief Engineers,
H.P.P.W.D. , Shimla-171001.

Dated Shimla-171002, the 25th
November, 1975.

Subject: Extension of Family Pension
Scheme 1964 to the temporary
work charged staff.

Sir,

I am directed to refer to your
letter No.PWD-133-(Pension)/75-10844, dated
30/8/75 and this Department Office Order
No.1-18/69-PWD(Part), dated 4/4/1973 and to
say that in C.P.W.D., the temporary Work
Charge staff having been given option either to

- 27 - [2020:HHC:10518-DB]

join the pensionary establishment or to be
admitted to or retain W.C Provident Fund, w.e.f.
21-5-71, a question was raised that the
benefits of Family pension scheme, 1964
may be extended to all the temporary W.C.
staff of H.P.P.W.D. as admissible to their
counterparts in C.P.W.D.
In this connection, the matter has
been carefully considered. There was and is no
C.P.F. Scheme in operation in Himachal
Pradesh. The Permanent W.C. staff under
H.P.P.W.D. was extended the benefits of
liberalized pension rules/gratuity, and family
pension Scheme, w.e.f. 18.11.60 and 1.1.64
respectively. This was in accordance with the
decision contained in. Government of India,
Ministry of Finance (Department of Expenditure)
office memo. No. 17(5)-EV(A)/60, dated 18.1.60.
The Government of India vide their office
memorandum No.8.43(4)-EV(B)/71, dated
1.5.71, in modification of the orders dated
18.11.60 have extended the benefits to the
temporary W.C. staff to join the pensionable
establishment or be admitted to or retain
Contributory Provide Fund benefits
referred to
above
.

Since in Himachal Pradesh, the
temporary W.C. employees, falling in the
category of industrial were not enjoying
concession of C.P.F benefits, and permanent
W.C. employees were already entitled to
pensionary/family pension benefits which were
extended to them with retrospective effect w.e.f.
18.11 60 and 1.1.64 respectively. It is clarified
that all W.C. employees including temporary
industrial workers are to be treated to be
part of the pensionable establishment.

This issue with the concurrence
of the Finance Department obtained vide
their U.O. No.FIN(C)-A(9)-6/75-2703, dated
21.10.75.

Sd/-

Under Secretary (PW)
Government of Himachal Pradesh.

29. Once work-charged status has been
conferred upon an employee by the Department,

- 28 - [2020:HHC:10518-DB]

which is a limb of Government of Himachal
Pradesh, then after doing so, the Department
cannot take U-turn to deny the benefit of such
status conferred upon the employee by the
Department itself. Work-charged employee, in
either of the Departments of Government of
Himachal Pradesh, whether it is Public Works
Department or Irrigation and Public Health
Department or any other Department, like
present one. constitutes same class, i.e.
work-charged employee under the
Government of Himachal Pradesh and when,
as evident from the communication dated
25.11.1975, work-charged employees in
Public Works Department, now bifurcated
into Public Works Department and Irrigation
& Public Health Department, are treated to
be part of pensionary, establishments, the
respondents-Department cannot deny such
benefit to employees conferred work-charged
status by the department itself. Therefore, it
does not lie in the mouth of respondents that
work-charged employees in Department of
Rural Development are not to be treated as
part of pensionary establishment. Such a
discriminatory treatment to its similarly
situated employees, forming identical class, is
not expected from a democratic welfare State,
being custodian or protector of Fundamental
Rights of its citizens, as such any
discrimination, on this count, would be violated
of
Article 14
of the Constitution of India.

31. In the light of aforesaid discussion,
particularly pronouncements as well as
communication dated 25.11.1975, referred
supra, it is held that the period of service
rendered by a person as work charged
employee with any establishment of State of
Himachal Pradesh is to be counted, as
qualifying service for pensionary benefits,
irrespective of the fact that the Department
is having work charged establishment or not.

In addition, in terms of pronouncement of
Supreme Court in
Sunder Singh
's case. daily
waged service of 5 years will be treated
equal to one year of regular service for pension
and if on that basis. service is more than

- 29 - [2020:HHC:10518-DB]

8 years but less than 10 years, the service will
be reckoned as ten years."

Even the judgement in
Beli Ram
[supra]

by Learned Single Judge, was assailed by State

Authorities, in LPA No.151 of 2021 and the same was

dismissed on 09.08.2023, by the Co-ordinate Division

Bench of this Court.

The above contention of Learned State

Counsel is misconceived for the reason, that firstly

as per the communication dated 25.11.1975, issued

by Finance Department all work charge employees

including temporary industrial workers are to be

treated to be part of pensionable establishment ; and

secondly, in terms of this communication once the

service rendered in work charge temporary capacity

is countable for retiral benefits in Public Works

Department therefore, similarly placed work charge

employees, who have rendered service in temporary

capacity in other Departments, including Irrigation

& Public Health Departments are entitled to similar

treatment; and thirdly, an artificial distinction cannot

be permitted to be carved out by State Authorities,

- 30 - [2020:HHC:10518-DB]

by extending benefit of work charge service rendered

in temporary capacity for pensionable benefits in one

Department but in denying it to similar or incumbents

in the Irrigation and Public Health Department; and

fourthly, this artificial distinction has no rationale

with the object sought to be achieved; and fifthly, the

artificial distinction sought to be carved out amongst

one homogenous class of work charge incumbents

who have rendered service in temporary capacity,

without any rationale, amounts to treating 'equals

as unequal', results in defeating the Constitutional

mandate of
Articles 14
and
also; and lastly, on

facts of instant case, the service/deemed service of

Late Shri Jagat Ram, the petitioner's husband as

work charge in temporary capacity, is to be counted

for pensionary benefits.

11. Plea of the State Authorities in Para 6(i)

of the Reply-Affidavit on merits, that family pension

is admissible to a person when, a government servant

draws pension and after his death, family members

becomes eligible for family pension.

- 31 - [2020:HHC:10518-DB]

The above plea set up in Reply-Affidavit,

only deals with the provision of Rule 54 (2) (6) of

CCS [Pension] Rules, by ignoring the eligibility and

entitlement of the petitioner for family pension under

Rule 54 (2) (a) and 54 (14) of the said Rules, on

account of the death of petitioner's husband during

service, after completion of one year's continuous

service. Thus, the stand of State Authorities, is not

tenable and is therefore rejected.

11(i). The Bombay High Court, while dealing with

similar fact situation, has granted family pension

to the widow of deceased, upon completion of one

year's continuous service, in
Union of India (UOI)

Vs. Smt. M.I. Solkar [Writ Petition No.7960
of

2003] [(2004) 02 BOM CK 0120 [(2004) 102 FLR

591] decided on 09.02.2004, in the following terms:-

"7. A conjoint reading of these Rules makes
it clear that whereas the other retiring
employees have to put in at least 10
years of service, in the case of a person
suffering from invalidity, there is no such
requirement under Rule 49(2)(c). It is also
material to note that under Rule 54(2)
when it comes to death of a government
servant, it is provided in Sub-rule 2(a)
that even where a government servant
dies after completion of one year

- 32 - [2020:HHC:10518-DB]

service, the family of the deceased is
entitled to family pension as
laid down
in
the Rules, Even where a person dies
before completion of one year, Sub-rule
2(aa) provides that his family may as
well receive family pension provided of
course a fitness certificate had been
issued by the medical authority
immediately prior to his appointment to
the service.

8. Mr. Karnik, learned counsel for the
petitioner, submitted that there is no
specific qualifying period of service provided
for pension on validity. However, the
concept of "qualifying service" as defined
under Rule 3(q) provides that it means
service rendered while on duty or otherwise
which shall be taken into account for the
purpose of pensions and gratuities
admissible under these rules. As seen
above, under Rule 49, which provides for
amount of pension, Sub-rule (2) provides for
three situations and as far as pension on
invalidity is concerned, the Rule 49(2)(c)
begins with the non-obstante clause and
clearly provides that it shall not be less
than the amount of family pension
admissible under Rule 54(2). This being
the position, since the deceased
husband of the petitioner in the present
case had suffered invalidity, may be
before completion of 10 years of service,
that cannot disentitle her from receiving
the family pension. It is a welfare
provision and it is a provision similar to
a situation where a person dies after
completion of one year service or even
before that. These provisions are in
consonance with the spirit of the
directive principles of the Constitution
and have to be read as such.

9. Mr. Walia, learned counsel for the
respondent, referred to a judgment of a
Single Judge of the Delhi High Court in the
case of Ex. Coost.
Badan Singh v. Union of
India
, reported in III 2003(1) All India
Services Law Journal 329, where a similar

- 33 - [2020:HHC:10518-DB]

view has been taken by a Single Judge of
the Delhi High Court to grant invalid
pension where the service rendered was less
than ten years and the petitioner had
suffered from Aids. The Administrative
Tribunal was, therefore, right in interpreting
the relevant provisions in that light and has
correctly come to the conclusion that the
Original Application had to be allowed. We
therefore do not find any error in the
approach of the Administrative Tribunal.
Petition is dismissed."

11(ii). The Punjab and Haryana High Court, while

dealing with similar fact-situation granted family

pension to a widow for one year's continuous

service rendered by her deceased husband, in
Neeraj

Yadav and another vs. State of Haryana and

others
[CWP No.8183 of 2009] decided on 12.10.2009

in the following terms:-

"It is noticed that having been
recommended for appointment on

18.9.2008, the petitioner was medically
examined on 7.10.2008 and on the same
date he joined the service. He died on
21.3.2009 and, thus, the petitioners are
denied the compassionate assistance.

Learned counsel for the petitioners
would submit that the petitioners are
entitled to the grant of family pension
and the condition of completing one
year continuous service can not be
pressed in view of Rule 4 of Family
Pension Rules. The counsel would refer
to note under the Rules, as per which
Family Pension can be granted before
completion of one year continuous
service, if the Government employee

- 34 - [2020:HHC:10518-DB]

concerned immediately prior to
recruitment to the service or post was
examined by the appropriate medical
authority and declared fit for the
Government service.
In support, he has
also drawn my attention to the case
of
Smt.Savitri Devi Vs. the State of
Haryana and others
, 1996 (2) RSJ 854.
The Division Bench of this Court has
clearly held that even if the deceased
government employee does not complete
one year of continuous service, his
dependent would nevertheless be
entitled to the grant of family pension
provided the deceased was medically
examined and found fit and medical
certificate of fitness was produced before
entering into Government service. The right
of the petitioner to make a claim for family
pension, thus, is apparently covered by the
ratio of law
laid down in
Smt. Savitri Devi's
case (supra).

Learned counsel for the petitioner has
drawn my attention to another Division
Bench judgment passed by this Court in
the case of
Sharmila Devi Vs. Uttar
Haryana Bijli Vitran Nigam Limited
,
2002 (4) SCT 178. Similar view has been
taken by the Division Bench of this Court so
far as eligibility of completing qualifying
service of one year for grant of family
pension is concerned. It is held that even if
the deceased Government employee does not
complete one year continuous service, his
dependent would still be entitled to grant of
family pension provided he was found
medically fit at the time of appointment. The
Rule does not envisage any such condition of
one year qualifying service.

While taking
this view, the
ratio
laid down in

Savitri
Devi
's case (supra) has been followed.

Taking the similar view, Civil Writ Petition
No.3515 of CIVIL WRIT PETITION NO.8183
OF 2009 :{ 6 }: 2009
Mahender Kaur Vs.
State of Haryana and others
), was allowed
by this Court on 5.10.2009.

- 35 - [2020:HHC:10518-DB]

Following the
ratio
laid down in
the
above-noted cases, it is held that the
petitioners would be entitled to the
grant of family pension even when
husband of petitioner No.1 had not
completed one year continuous service
as prior to his joining, her husband had
appeared for medical examination and had
been offered appointment only on having
been found fit. Order Annexure P-2 would
show that the petitioner was appointed after
having been declared medically fit. Once the
petitioners are held entitled to grant of
family pension, they would be eligible for
grant of compassionate financial assistance
in terms of the Rules as they would be
eligible under Rule 3, which reads as
under:-

"Eligibility. 3. The eligibility to receive
financial assistance, these rules shall
be as per the provision in pension/
family pension scheme 1964."

The writ petition is accordingly allowed.
Direction is issued to the respondent-State
to grant compassionate financial assistance
to the petitioners under the Rules. Needless
to mention that the petitioners would
also be entitled to the family pension
though in terms of the Rules."

11(iii). While dealing with the claim for pension,

the Hon'ble Supreme Court held in
Union of India

and others Vs. Meena Devi [CWP No.34
of 2014]

decided on 23.07.2018 that it would be travesty of

justice to deny family pension/retirement benefits

simply on the ground, that deceased employee was

not a permanent employee of the Department, in

- 36 - [2020:HHC:10518-DB]

the following terms:-

"12. There is also on record a judgment, dated
3rd October, 2013, passed by the Division
Bench of Punjab and Haryana High Court
in CWP No. 10597-CAT of 202 [O&M],
titled as
Union of India and others Vs.
B.N. Jaggi and others
, which reads as
under:-

"The respondent served the petitioner-
Department w.e.f. 24.01.1963 till he was
retired from service w.e.f. 10.09.1975. In
this manner, he served the Department for
12 years, 7 months and 17 days. The
question was whether the respondent is
entitled to be paid pension for the above
stated service ?

The Tribunal has relied upon a decision of
the Hon'ble Supreme Court in
SLP No.
6365 of 1988 [Yashwant Hari Katakkar
Vs. Union of India & Ors.
], decided on
19.09.1994 where the employee had served
for 18 ½ years but denied pension on the
ground that he was not a permanent
employee. The Supreme Court held that
it would be travesty of justice if the
retiree was denied pensionary benefits
simply on the ground that he was not a
permanent employee of the Department
even after serving for 18½ years.

It is not in dispute that in the instant case
also, the respondent was denied pension
only on the ground that he did not hold the
post on permanent basis. The Tribunal has,
thus, rightly relied upon the cited
decision rendered in somewhat similar
circumstances and accepted the claim of
the respondent.

It is informed by learned counsel for the
respondent that the order passed by the
Tribunal has already been implemented
even before filing of the writ petition and
pension stands granted to him.

- 37 - [2020:HHC:10518-DB]

For the reasons afore-stated and also
keeping in view the fact that the
respondent retired way back in the year
1975, we decline to interfere with the
impugned order.

Dismissed.

Learned counsel for the respondent informs
us that this judgment has attained finality."

CONCLUSION:

12. Pension including family pension is payable

on the consideration of past service rendered by

a government servant. The object, intent and purpose

of pension/family pension is to provide sustenance

in old-age and provide protection and to secure

support in old-age which would have flown upon

retirement of a companion in normal course but for

unforeseen death during service or post-retirement

also. Rule 54 (2) (a) (i) read with Rule 54 (14)

of CCS [Pension] Rules, entitles an eligible member

of family, including widow for family pension in

case, deceased employee-Government servant dies after

one year's continuous service in temporary capacity

and in a pensionable establishment. An eligible family

member, could only be disentitled for family pension,

- 38 - [2020:HHC:10518-DB]

in case the deceased Government servant was under

suspension prior to death or such Government servant

had rendered continuous service before attaining the

age of eighteen years or was receiving family pension

or was entitled for family pension under any other

Rules of Central/State Government/PSU/Autonomous

body/Local Body of Central/State Government [under

Rules 54 (14) (a) read with Rule 54 (13-B) of

the CCS [Pension] Rules. No other disqualification

clause in CCS [Pension] has been shown, disentitling

the petitioner-widow, for family pension despite the

deceased granted service having rendered more than

five years and three months of service [as work

charge-temporary capacity]. In fact-situation of the

instant case, once none of these disqualifications

are applicable, then, petitioner, Satya Devi, being

widow of late Shri Jagat Ram, who had died after

having rendered more than five years three months

service from 01.01.2002 till death on 17.03.2007, i.e.

more than one year's continuous service is eligible

and entitled for grant of family pension, on the basis

- 39 - [2020:HHC:10518-DB]

of work charge service rendered in temporary capacity

in a pensionable establishment, as per the mandate

of Law in Sukru Ram and Matwar Singh, which

were upheld in SLP's and were implemented also.

Further, the entitlement of the petitioner for family

pension, could neither be taken away nor curtailed

or restricted without any authority of law; when, the

right to family pension comes within the ambit of

property under
Article 300-A
of the Constitution of

India and such a right could neither be curtailed

nor taken away, or denied or deprived, without any

authority of law. Further, no statutory provision [Act

or Rules] has been brought to the notice of this

Court, which disentitles, the present petitioner for

family pension, in facts of this case. Moreover, once

the petitioner's deceased husband has performed

the same work job, functions, duties which was

performed by other regular employees in all respects,

coupled with the fact that the petitioner's husband

had died as a daily wager and was accorded

work charge status posthumously vide order dated

- 40 - [2020:HHC:10518-DB]

10.05.2016 [Annexure R-1] w.e.f. 01.01.2002 and

in such an eventuality, the requirement of substantive

appointment if any, did not apply due to untimely

and belated action of State Authorities in extending

this benefit then, the claim for family pension has

merit. Moreover, the distinction between temporary

and permanent employees for grant of pension, including

family pension and other pecuniary benefits ceases to

exist as per OM dated 28.03.1988 [Government of

India decision No.2 under Rule 3 of CCS [Pension]

Rules and therefore, the denial of family pension is

uncalled for and is accordingly quashed and set-

aside. The claim by the petitioner's widow for family

pension carries weight in view of the mandate of

law, outlined in cases of
Kalawati, Meena Devi, M.I.

Solkar and Neeraj Yadav
[supra].

13. Further, the stand taken by State Authorities

is that the petitioner has not rendered ten years

of regular service and the family pension cannot

be granted. The above plea of Learned State Counsel

cannot be permitted to operate so as to defeat the

- 41 - [2020:HHC:10518-DB]

intent and object of Rule 54 (2) (a) read with Rule

54 (14) of CCS [Pension] Rules, which entitles an

eligible family member for pension after one year's

continuous service, whereas in facts of this case,

the petitioner's husband late Shri Jagat Ram, had

rendered more than 5 years and 3 months service.

Thus, deprivation of family pension arbitrarily and

without authority of law cannot sustain. Denial of

family pension despite being eligible as per provisions

of Rule 54 of CCS [Pension] Rules, without prior

notice, without affording an opportunity of personal

hearing is just to defeat the rights under the Rules,

which cannot be permitted, resulting in malice in

law in instant case. In addition, the claim for family

pension became due and payable to the petitioner

w.e.f. 17.03.2007 i.e. date of death of her deceased

husband but these benefits have been denied till

institution of OA No.4828 of 2016 [renumbered as

CWPOA No. 267 of 2020], therefore, the petitioner

herein is held entitled for family pension w.e.f.

17.03.2007 i.e. date of death of her Late husband,

- 42 - [2020:HHC:10518-DB]

Shri Jagat Ram notionally but actual arrears shall

accrue for three years preceding the filing of first

petition OA No.4699 of 2015, In re;
Satya Devi versus

State of Himachal Pradesh
and even in view of

subsequent-present petition [OA No.4828 of 2016,

re-numbered as CWPOA No 267 of 2020 on 21.09.2016]

with fixation of family pension, from due date as

revised and enhanced from time to time.

DIRECTIONS:

14. In view of the above discussion and for

reasons recorded hereinabove, the instant petition, is

allowed, in the following terms:-

(i) Petitioner, Satya Devi, is held entitled
for Family Pension, upon death of her
Late husband, Shri Jagat Ram w.e.f.

17.03.2007 with all consequential benefits;

(ii) Action of the State Authorities in denying
Family Pension to the petitioner w.e.f.
17.03.2007; without any authority of law
and dehors the intent; object of Rule 54
of CCS [Pension] Rules, as applicable
in the instant case, is quashed and set-
aside;

(iii) State Authorities are mandated to process
the case and to ensure the sanction
and release of Family Pension to the
petitioner in accordance with Rule 54 of
CCS [Pension] Rules and/or the law in
Sukru Ram and Matwar Singh; and/or

- 43 - [2020:HHC:10518-DB]

the communication dated 25.11.1975
{[OM dated 28.03.1988 Government of
India decision No.2 under Rule 3 of CCS
[Pension] Rules [supra]}; with all admissible
monetary benefits notionally from due
date [17.03.2007] and to release actual
monetary benefits for three years preceding
filing of the writ petition, OA No. 4699 of
2015 in accordance with law on or before
31st July, 2025;

(iv) Failure to release Family Pension and
admissible benefits accruing therefrom
shall mandate the Respondents to give
interest at the rate of 7% per annum, beyond
31.07.2025 till realization; and

(v) Parties to bear their own costs.

In aforesaid terms, the instant petition

is allowed and pending miscellaneous application(s), if

any, shall stand disposed of accordingly.

(Vivek Singh Thakur)
Judge

(Ranjan Sharma)
Judge
June 04, 2025
[Bhardwaj/tm]