REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  6271    OF 2008 (Arising out of SLP (C) No.1502 of 2006)

State of Haryana & Ors. … Appellants

Versus

Shakuntla Devi … Respondent

WITH

CIVIL APPEAL NOS. 6272 & 6273     OF 2008 (Arising out of SLP (C) No.2759/06 and 529/08)

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Whether the respondents  being dependents  of  the  deceased ad hoc

appointees  are  entitled  to  grant  of  ‘family  pension’  in  terms  of  the

provisions  of  Punjab  Civil  Services  Rules  (for  short,  ‘the  Rules’)  and

Family Pension Scheme, 1964 (For short, ‘the 1964 Scheme) is the question

involved in these appeals,  which arise out of judgments and orders dated

4.5.2005 and 24.4.2007 passed by the High Court of Punjab and Haryana at

Chandigarh in CWP Nos.8401 of 2003, 1858 of 2004 and 13112 of 2006.

3. Respondent  Shakuntla  Devi  is  the  widow  of  Late  Balwant  Singh

Driver;  Respondent  Rama Devi  is  the  widow of  Late  Karan  Singh;  and

Respondent Sohni Devi is the widow of Late Dharam Pal.

4. All of them were appointed on ad hoc basis for a period of six months

on diverse dates.   

Their  offers  of  appointment  containing  the  terms  and  conditions

thereof, read as under :

(a) Offer of Appointment of Late Karan Singh

“The following applicants are appointed as J.B.T. on the basis of six months, on pay of Rs.125/- and prescribed allowances total grade of Rs.125/250 in the  Schools  mentioned  against  each.   They  are directed  to  submit  their  joining  reports  to  the concerned  Head  Master/Head  Mistress,  Block Education Officer by 11.7.73 (F.N.).  If he fails to join  by  this  date,  other  applicants  will  be appointed in their place.

The  service  is  temporary  and  liable  to  be removed  from  service  at  any  time  without  any notice.

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Name  of  applicant  & address

Registration No.

Place of Appointment

Remarks

Sh. Karan Singh s/o Deep  Chand,  Village Manpur,  The.  Nuh, Gurgaon

2879/73 Govt. Secondary School, Kondal

Nil

Endst. No. even.”

(b) Offer of Appointment o Late Balwant Singh

“Sub. Ad hoc appointment of Drivers.

On the recommendations of the State Employment Exchange, Haryana, you are hereby offered a post of temporary Driver in the Pay scale of Rs.1200- 30-1500-EB-40-2040  plus  usual  allowances  as sanctioned by the Haryana Government from time to time for a period of six  months or till  such a recommendee  of  Subordinate  Services  Selection Board, Haryana reports for duty, whichever event is earlier.

2. Your  appointment  is  temporary  and  your services can be terminated without assigning any reason and without any notice of discharge.”

(c) Offer of appointment of Late Dharam Pal

“Subject – Appointment on ad hoc basis

The Director of Industrial Training & Vocational Education  Haryana  is  pleased  to  appoint  you to  the  post  of  Clerk  in  the  grade  of  400-104- 90/540-15-600-EB-20-660  plus  allowance  as admissible under rule purely on ad hoc basis for a period  of  six  months,  or  till  a  regular  candidate duly  recommended  by  the  Subordinate  Services Selection  Board,  Haryana  joins,  which  ever  is

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earlier,  on  the  terms  and  conditions  mentioned below :-

i) that your services are liable to be terminated at any time without notice and without assigning any reasons.

ii) That conditions of your ad hoc services will be governed by  the  rules  and  instructions  issued  by  the  Haryana Government from time to time…….”

All the aforementioned offers of appointment, thus, categorically go

to show that the same were ad hoc in nature.  Appointments were made for a

period of six months only.  The services of the appointees were liable to be

terminated without any notice or without assigning any reason.

5. Temporary servants may be appointed by the State for satisfying the

needs of a particular contingency.  Conditions of service of the temporary

servants may be regulated either by laying down the conditions therefor in

the offer of appointment and/or the rules operating in the field.  

If an appointment, it is trite, is made to a temporary post, there can be

no permanent appointment therein.  He would be deemed to be in temporary

service only.  Even where a temporary post is made permanent, the same by

itself  does  not  render  the  employment  permanent  and,  thus,  temporary

employee continues to remain on temporary service.  Until a declaration is

made  under  the  relevant  rules,  he  cannot  be  deemed  to  be  in  a  quasi

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permanent service or absorbed permanently in Government service.  [See

Arundhati Ajit Pargaonkar v.  State of Maharashtra & Ors. [AIR 1995 SC

962].

6. The legal position in relation to termination of services of temporary

employees is, thus, to a substantial extent, similar to that of a probationer, as

such an employee has no right to the post except in cases where the same is

arbitrary in nature.

7. Indisputably, however, despite expiry of a period of six months from

the  date  of  their  respective  dates  of  appointment,  they  were  allowed  to

continue in service.  It is furthermore not disputed that neither their status

had been changed nor their services had been regularized.  In fact, so far as

the case of Balwant Singh is concerned, his prayer for regularization of his

services was specifically rejected by the State.

8. For  better  appreciation  of  the  factual  matrix  of  the  matter,  the

respective dates of appointment of the husbands of the respondents, dates of

their  death,  dates  of  making  demand/legal  notice  for  benefit  of  family

pension, dates of rejection of such prayers and the dates of filing of the writ

petition may be noticed, which are as under  :

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Name Date of appointmen

t

Date of Death

Date of making demand/

legal notice for Family

Pension

Date of Rejection of such prayer

Date of filing the

writ petition

Balwant Singh

5.1.1990 11.12.1994 15.5.2003 6.10.2003 13.12.2003

Karan Singh

3.7.1973 13.12.1977 01.10.2001 28.5.2002 26.5.2003

Dharam Pal 24.3.1987 13.7.1989 -- 17.11.198 9

11.5.2006

9. The  matter  relating  to  grant  of  family  pension  is  covered  by  the

Punjab Civil Services Rules Volume II Part I (for short, ‘the Rules’).  In

terms of the Rules, Family Pension Scheme, 1964 was framed.   

The Rules which are relevant for this case, are as under :

“2.4. In the following cases no claim to pension is admitted:-

(a) When a Government employee is appointed for  a  limited  time only,  or  for  a  specified duty, on the completion of which he is to be discharged.

(b) When a person is employed temporarily on monthly  wages  without  specified  limit  of time  or  duty;  but  a  month’s  notice  of discharge should be given to such a person and his wages must be paid for any period by which such notice falls short of a month.

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(c) When a person’s whole-time is not retained for the public service, but he is merely paid for  work  done,  such  as  Government Pleaders  and  Law  Officers  not  debarred from private practice.  

(d) When  a  public  servant  holds  some  other pensionable  office,  he earns no pension in respect of an office of the kind mentioned in clause (c) or in respect of duties paid for by a compensatory allowances.  

(e) When a Government employee serves under an agreement which contains no stipulation regarding  pension,  unless  the  competent authority specially authorizes him to count such service towards pension.

Note:- The agreements should be so worded as to preserve  the  inviolate  and  indefeasible  right  of Government to modify the rules from time to time, at their  discretion, so that  no claim may arise to the benefit  of the rules as they stood at  the date when the agreement was executed.  

3.12 The service of a Government employee does not  qualify for pension unless it  conforms to the following three conditions :-

First  – The  service  must  be  under Government.

Second  – The  employment  must  be substantive and permanent

Third  – The  service  must  be  paid  by Government.

These three conditions are fully explained in the following rules.

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Note.- The question whether service in a particular office or department qualifies for pension or not is determined  by  rules  which  were  in  force  at  the time  such  service  was  rendered;  orders subsequently  issued  declaring  the  service  to  be non-qualifying,  are  not  applicable  with retrospective effect.

XXX XXX XXX

3.17. In the case of an officer retiring on or after 5th January, 1961, if he was holding substantively a permanent post on the date of his retirement, his temporary  or  officiating  service  under  the  State Government,  followed  without  interruption  by confirmation  in  the  same  or  another  post,  shall count in full as qualifying service except in respect of :-

(i) Period of temporary or officiating service in non-pensionable establishment.

(ii) Deleted.

(iii) Period of service paid from contingencies.”

Rule 6.16A(2)(b)  of  the Rules  (as  applicable  to  Haryana)  reads  as

under :

“Rule  6.16(2)(b)  :  The  family  of  a  pensionable employee who dies  before  completing five years of qualifying service shall also be eligible for the gratuity  equal  to  six  months  employments  of  a Government  employee  at  the  time  of  his  death except in cases in which death occurs in the first year of service where the gratuity admissible shall be equal to two months emoluments.”

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Rule 12.2 of the C.S.R. Vol.I, Part I is reproduced hereunder :

Rule 12.2 : A service book in the form prescribed by the Comptroller and Auditor-General in Article 188  of  Audit  Code  (reproduced  in  Part  11  of Appendix  11)  must  be  maintained  for  every employee  at  the  time  of  First  Entry  into Government service has to get himself medically examined.  The only exception provided is under Rule 3.3.(3) of C.S.R. Vol.No.1, Part I there is no requirement  of  medical  certificate  for  those employees  who  are  appointed  on  six  months basis.”

10. The 1964 Scheme was formulated to afford further reliefs stipulated

therein to the family of the deceased employees.   

The said scheme came into force with effect from 1st July, 1964 and

was applicable to all regular employees on pensionable establishments.  

Para 4 and Note 1 of the 1964 Scheme read as under :

“4. This scheme is administered as below:-

(i) The family pension is admissible in case of death  while  in  service  or  after  retirement  on  or after the 1st July, 1964, if at the time of death, the retired  officer  was in  receipt  of  a  compensation, invalid,  retiring or superannuation  pension.   The Family Pension will not be admissible in case of

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death after retirement if the retired employee at the time of death was in receipt of gratuity only.  In case  of  death  while  in  service  a  Government employee  should  have  completed  a  minimum period of one year of continuous service without break.  

Note 1.- The term one year continuous service used  in   para-4(i)  above  is  inclusive  of permanent/temporary  service  in  a  pensionable establishment  but  does  not  include  periods  of extraordinary leaves,  boy service and suspension period unless that is regularized by the competent authority  or  before  completion  of  one  year continuous  service  provided  the  deceased Government  employee  concerned  immediately prior to his recruitment to the service or post was examined  by  the  appropriate  Medical  Authority and declared fit by that authority for Government service.”

11. The High Court delivered the main judgment in Rama Devi’s case.   

It  noticed  the relevant  dates,  the  terms of  appointment  as  also  the

relevant rules.  It, in its judgment, took into consideration the decision of

this  Court  in  S.K.  Mastan  Bee.  v.  The  General  Manager,  South  Central

Railway & Anr. [(2003) 1 SCC 184] as also the decisions of the High Court

of  Punjab and Haryana including the  decision  of  Kanta  Devi v.  State of

Haryana [2000 (2) SCT 32].  The High Court opined that having regard to

the paragraph 4 of the Scheme (wrongly stated to be Rule 4) as also Note 1

appended thereto, any employee who has completed more than one year’s

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service would become eligible for grant of family pension.  In arriving at the

said decision, it furthermore took into consideration the fact that for the said

purpose,  it  was not  necessary that  the  concerned employees  should have

been appointed on a permanent or a temporary post.

12. Mr.  Patwalia,  learned  senior  counsel  appearing  on  behalf  of  the

appellant,  would submit that the High Court committed a serious error in

arriving at the said finding insofar as it failed to take into consideration the

import and purport of the rules vis-à-vis the scheme.  It was contended that

in terms of Rule 3.12, for becoming eligible for grant of family pension, it

was necessary that the employment was to be substantive and permanent in

nature as explained in Rule 3.17, which means that the employee should be

holding  substantively  a  permanent  post  on  the  date  of  his  retirement,

temporary  or  officiating  service  under  the  State  Government,  followed

without  interruption  by confirmation  in  the  same or  another  post  and  in

view of the fact that  the employees were not  appointed  on a substantive

basis, the claim for grant of family pension could not have been allowed.  It

was furthermore urged that in any event as the concerned employees were

appointed for a limited period as envisaged under clause (a) of Rule 2.4, the

impugned judgments cannot be sustained.

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13. Ms.  Shikha  Roy,  Pabbi  and  Mr.  Prem  Malhotra,  learned  counsel

appearing on behalf of Shankuntla Devi and Rama Devi, on the other hand,

would contend that for the purpose of grant of family pension in terms of

the  scheme,  it  was  not  essential  that  the  appointees  should  have  been

regularized in their respective services..  Drawing our attention to the terms

of appointment, it was contended that as the employees were appointed on

temporary basis and they having been in service admittedly for a period of

more than one year, payment of family pension was legally permissible.   

What was only necessary, according to the learned counsel, was one

year’s  service  without  break  as  would  appear  from  paragraph  4  of  the

Scheme read with note thereto.  It was urged that Rule 3.17 of the Rules

would apply only in a case of retirement and not in a case of death.  It was

furthermore  contended  that  as  the  service  records  of  the  concerned

employees were being maintained and they have been asked to file medical

certificate(s) at the time of appointment, they were in effect and substance

appointed against a permanent vacancy on a temporary basis and not on an

ad hoc basis for a period of six months as contended by the appellant   

The  Rules,  as  applicable  to  the  State  of  Haryana,  were  framed in

terms of the ‘Proviso’ appended to Article 309 of the Constitution of India.

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Volume I, Part I of the said Rules provides for the main rules whereas Part

II thereof contains appendices and forms.  Volume II of the Rules relate to

‘Pension and Provident Fund’.  The said Rules having been framed under

‘Proviso’ to Article 309 of the Constitution of India evidently apply to the

Government employees.  The Government employees having regard to the

said Constitutional provision enjoy a ‘status’.  Their appointment must be

made in terms of appropriate recruitment rules and upon compliance of the

equality clauses contained in Articles 14 and 16 of the Constitution of India.

14. The provisions contained in Volume II of the Rules apply to those

Government employees to whom the Rules in Volume I thereof apply.  Rule

1.2 read as under :

“1.2. Except  as  otherwise  provided  in  rule  1.4 Infra or in any other rule or rules, these rules shall apply to all  Government employees belonging to the categories mentioned below, who are under the administrative control of the Haryana Government and  whose  pay  is  debitable  to  the  Consolidated Fund of the State of Haryana :-

(1) Members of State Services, Classes I and II;

(2) Members of State Services, Class III;

(3) Members of State Services, Class IV;

(4) Holders of Special Posts; and

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(5) Any other Government employee or lass of Government employees  to  whom the  competent  authority  may,  by general or special order, make them applicable.”

15. We may, therefore, at the outset, notice the definitions contained in

the Rules.   

It is  trite that each Government employee should be borne in their

respective  cadre,  ‘Cadre’  having been  defined  to  mean the  strength  of  a

service or a part of service sanctioned as a separate unit.   

‘Active service’ has been defined in Rule 2.3 to mean:

“2.3. Active  Service,  for  the purpose  of  pension, includes besides time spent on duty in India :-

(i) Leave  of  all  kinds  except  extraordinary  leave  not counting towards increment under rule 4.9(b)(ii);

(ii) Time  spent  on  the  voyage  to  India  by  a  Government employee who is  recalled to  duty before the  expiry of any recognized leave out of India : provides his return to duty is compulsory.

(iii) The  period  of  absence  from  India  of  a  Government employee deputed or detained out of India on duty.”

16. In terms of Rule 1.3 of Volume II of the Rules, the terms defined in

Chapter II of Volume I of the rules have, unless there is anything repugnant

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in the subject or context, the same meaning and implications ,when used in

Chapter II Volume I.

17. Rule 2.1 states that every pension shall be held to have been granted

subject to the conditions contained in Chapter VII of the rules.  Clause 2.6

provides for claims of widows or heirs, stating:

“If  a  Government  employee  dies  before  actually retiring  or  being  discharged,  his  heirs  have  no claim to anything in respect of his pension except as provided in rules 6.16-A to 6.16-C.”

18. Clause  3.12  occurring  in  Chapter  III  provides  for  ‘Conditions  of

Qualifications’ which are; firstly, the service must be under Government;

secondly, the employment must be substantive and permanent; and thirdly,

the service must be paid by the Government.

19. The  second  qualification,  namely,  what  would  be  meant  by

substantive  and  permanent  employment  has  been explained  in  Rule  3.17

which, as noticed hereinbefore, means that the employee must be holding

substantively a permanent post on the date of his retirement, his temporary

or officiating service under the State Government.

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20. Family Pension Scheme was formulated to afford further relief to the

family of the deceased Government employees,  i.e.  something more than

what was contemplated in the Rules.  The same, however, would not mean

that the dependents of those employees who were otherwise not eligible in

terms of the Rules would get the benefit thereunder.  In other words, the

eligibility  clause  must  be  satisfied  so  as  to  enable  the  dependent  of  a

Government employee to obtain the said benefit.

The 1964 Scheme is subject to Part II of the Rules.  Rules contained

in  Part  II  are  subject  to  Part  I,  which  in  turn  would  be  subject  to  the

constitutional provisions.  Thus, before a person can be said to have been

acquired a right to obtain the benefits of 1964 Family Pension Scheme must

satisfy the eligibility as envisaged under the Rules.  Family pension can be

granted to the dependent of the deceased Government employee under the

Family  Pension  Scheme  only  by  way  of  a  further  relief  and  not  by

independent of the main Pension Rules.  In other words, if a person was not

a Government employee, the question of his dependent becoming entitled to

the benefits of family pension scheme would not arise.

21. The  primary  question,  therefore,  is  who  would  be  a  Government

employee within the meaning of the said scheme.   

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We will advert to this a little later.  The second question would be,

can the scheme be read independent of the Rules.   

Answer thereto must be rendered in the negative.  We say so because

in terms of the Rules, the following conditions precedent must be fulfilled

before the benefit of family pension can be extended:

1. The employee must be a Government employee.

2. He must be employed in a pensionable establishment.

3. He must have become eligible to derive the benefit thereof.

22. Chapter II of Volume II of the Rules provides for different provisions

relating  to  grant  of  pension.   The  distinction  between  a  pensionable

establishment and a provident fund establishment must, therefore, be borne

in mind.  Pension although is not a bounty, the entitlement thereto is only

under  a  statute.  Only when the  conditions  precedent  provided for  in  the

statute are fulfilled, an employee would be entitled thereto.

23. We would begin our discussions with the status of an employee.  A

Government employee enjoying a status indisputably must be recruited in

accordance with Rules.  The offers of appointment made in favour of the

employees in no uncertain terms show that they were appointed on an ad

hoc basis. The appointment was not regular, although in relation to the case

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of Balwant Singh, the names were said to have been called for from the

Employment Exchange.  Nothing has been placed on record to show as to

what was the cadre strength in the posts to which they were appointed.   

No material  has been brought on records to show that the equality

clause  contained  in  Articles  14  and  16  had  been  complied  with.   Any

recruitment made in violation of the constitutional scheme, as adumbrated

therein as also the recruitment rules framed by the State would render the

same illegal and invalid.

24. The very fact that a regularization scheme was framed by the State is

a clear  pointer  to show that  the concerned employees were not  regularly

employed.  They had sought for regularization of their service and at least in

one  case,  as  noticed  hereinbefore,  for  one  reason  or  the  other,  the  said

request  was  turned  down.   The  validity  thereof  was  not  questioned.   It

attained finality.   

In the case of Rama Devi, a contention was raised in the writ petition

that the offer of appointment in law was not for a period of six months but

for an indefinite period.  Such a contention cannot be upheld.  If the initial

appointment was for a fixed period and the appointment could be terminated

without  any  notice  and  without  assigning  any  reason,  such  appointment

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cannot be said to be an appointment on a permanent post or a temporary

sanctioned  post.   Unless  and  until  the  post  itself  is  a  permanent  or  a

temporary one, the same would not answer the description of a substantive

and  permanent  employment.   In  this  case,  it  had  been  shown  that  the

services of Karan Singh was being renewed for a period of six months on

the expiry of the original or extended tenure.

25. Clause 3.17 of the Rules in no uncertain term explains as to what is

meant by substantive and permanent employment.  

The contention of the counsel that it applies only to a person who has

retired is not correct because holding of a substantive permanent post on the

date  of  retirement  is  followed  by the  words  his  temporary or  officiating

service under the State Government.   

Confirmation  in  service,  therefore,  whether  before  retirement  or

before death must be held to be sine qua non for becoming eligible for grant

of  pension.   Only  when  an  employee  renders  service  in  a  pensionable

service, he would be entitled to pension.   

Only by reason of fulfillment of the conditions laid down under the

contract of service and/or the statutory rules governing the same, a person

can  become a  full  fledged  Government  employee.   When  the  terms and

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conditions of services are governed by a statute or statutory rules, no doubt

the same would prevail  over the contract of employment but then for the

said purpose, the concerned employee must show that the appointment was

regular in nature and on a post which is  a cadre post.   The Government

employee acquires status only when he becomes entitled thereto by reason

of a statute or by his employer declaring him to be entitled therefor.

26. When  a  regularization  scheme  was  framed  (assuming  that  such  a

scheme is valid and constitutional) the employee must be regularized.  At

least he must acquire a right to be regularized in service.

27. In M.P. Vidyut Karamchari Sangh v. M.P. Electricity Board [(2004) 9

SCC 755], this Court was considering a case where there existed a conflict

between a statutory regulation made under Section 79(c) of the Electricity

Supply Act, 1948 and Certified Standing Order or a rule made under the

M.P. Industrial Employment (Standing Order) Act, 1961, to hold :

“42. It  is  one  thing  to  say  that  when  there  exists  a conflict between a regulation made under Section 79(c) of the Act and a certified standing order or a rule made under  the  1961  Act,  the  latter  shall  prevail;  but  it  is another  thing  to  say  that  in  absence  of  any  statutory provision governing the age of retirement, the statutory regulations  framed by the respondent  Board shall  have no application.   It  is  not  in  dispute  that  the impugned notification  dated  26.12.2000  had  been  issued  by  the

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Board  in  exercise  of  its  power  under  Section  79(c)  of Electricity Supply Act.  Section 15 of the Act empowers the Board to appoint a Secretary and such other officers as may be required to enable the Board to carry out its functions.   Section 79(c) empowers the Board to make regulations inter alia as regard the duties of officers and other  employees  of  the  Board,  and  their  salaries, allowances and other conditions of service.  The Board, therefore, was empowered to make regulations which are not  inconsistent with the provisions of the Act and the Rules providing for the duties of officers, their salaries, allowances and other conditions of service.   

43. The power of the Board, therefore, to lay down the conditions of service of its employees either in terms of regulation  or  otherwise  would  be  subject  only  to  any valid  law  to  the  contrary  operating  in  the  field. Agreement  within the meaning of proviso appended to Rule 14A is not a law and, thus, the regulations made by the Board shall prevail thereover.”

Yet  again  in  Mahendra  L.  Jain  &  Ors. v.  Indore  Development

Authority & Ors. [(2005) 1 SCC 639], it was held :

“33. For the purpose of this matter, we would proceed on the basis that the 1961 Act is a special statute. vis-à- vis the 1973 Act and the rules framed thereunder.  But in absence of any conflict in the provisions of the said Act, the  conditions  of  service  including  those  relating  to recruitment as provided for in the 1973 Act and the 1987 Rules  would  apply.   If  by  reason  of  the  latter,  the appointment is invalid, the same cannot be validated by taking  recourse  to  regularization.  For  the  purpose  of regularization  which  would  confer  on  the  concerned employee  a  permanent  status,  there  must  exist  a  post. However, we may hasten to add that regularization itself

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does  not  imply  permanency.   We have  used  the  term keeping in view the provisions of 1963 Rules.”

It was also held therein that :

“38. In A Umarani (supra), this Court held that once the employees are employed for the purpose of the scheme, they do not acquire any vested right to continue after the project  is  over  [See  paras  41  and  43].  [See  also Karnataka State Coop. Apex Bank Ltd. Vs.  Y.S. Shetty and  Others,  (2000)  10  SCC 179  and  M.D.  U.P.  Land Development Corporation and Another Vs.  Amar Singh and Others, (2003) 5 SCC 388].”

In M.P. Housing Board & Anr. v. Manoj Shrivastava [(2006) 2 SCC

702] this Court followed the decision in M.P. Electricity Board to hold :

“15. A daily-wager  does not  hold a post  unless  he is appointed  in  terms  of  the  Act  and  the  rules  framed thereunder.  He does not derive any legal right in relation thereto.

It was furthermore opined :

“19. The  appointment  made by a  person  who has  no authority  therefor  would  be  void.  A  fortiori  an appointment  made  in  violation  of  the  mandatory provisions of the statute or constitutional obligation shall also be void.  If no appointment could be made in terms of  the  statute,  such  appointment  being  not  within  the purview of the provisions of the Act would be void; he cannot  be  brought  within  the  cadre  of  permanent

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employees.   The  definitions  of  ‘permanent  employee’ and ‘temporary employee’ as contained in the rules must, thus,  be  construed  having  regard  to  the  object  and purport sought to be achieved by the Act.”

28. With the aforementioned legal principles in mind, we may analyse the

provisions of the scheme.   

The  scheme  in  terms  of  paragraph  3  is  applicable  to  all  regular

employees in pensionable establishment, temporary or permanent who were

in service.  Thus, whether temporary or permanent, the employee must be

regular employee which would mean employee appointed on a regular basis,

i.e., in accordance with Rules.  Only because services of ad hoc employees

were continued, the same would not mean that thereby his status has been

changed.   It  will  bear  repetition  to  state  that  status  of  an  employee  can

change either by reason of a contract or by reason of a statute.  Nothing has

been shown to us that the concerned employees either under the contracts of

service or under any statute or statutory rules became regular employees of

the State.   

If the scheme did not apply to the respondents, the provisions as to

how the scheme would be administered are not of any significance.   

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29. The contention that the family of an employee would be entitled to

the  benefit  of  family  pension  in  the  case  of  the  death  of  Government

employee, if he had completed a minimum period of one year continuous

service  without  break  cannot  be  accepted.   As  stated  hereinbefore,  an

employee must be a Government employee at the first instance.  He must be

working in a pensionable scheme.  He, only in that capacity, should have

completed  a  minimum period  of  one year  of  continuous  service  without

break  which  would  mean  that  he  must  be  a  temporary  or  permanent

employee.

30. It is one thing to say that a person was appointed on a temporary post

on a regular basis but it is another thing to say that an appointment was ad

hoc  in  nature  on  a  temporary  basis.   Whereas  in  the  former  case,  the

appointment must be carried out in accordance with law, in the later, it may

not be.   

From a perusal of the offers of appointment, as noticed hereinbefore,

it is evident that the appointments of the concerned employees were made

for a period of six months or till a regular appointment was made.  The very

fact that the posts were to be filled up on regular basis by the competent

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authority clearly goes to show that the nature of appointment of the said

persons was ad hoc one.

31. It may be that on the expiry of six months, the services were allowed

to continue but the same would not, in absence of any statutory interdict,

mean that the ad hoc employee ceased to be so and acquired the status of a

permanent or temporary employee.   

Reliance placed on Note 1 of paragraph 4 is not apposite.  What is

sought to be explained by Note 1 is the exclusion of the periods which shall

not be counted towards one year’s continuous service.  It by itself does not

create any new right.

In  Punjab  State  Electricity  Board  Ltd. v.  Zora  Singh  and  Others

[(2005) 6 SCC 776], this Court held:

“22. The administrative circulars as thence existed as also the regulations indisputably require supply of electrical  energy to the agriculturists  within a period of two months from the date of receipt of the  amount  asked  for  in  terms  of  the  demand notice.  It  may  be  true  that  the  note  appended thereto  provides  that  the period specified therein shall be subject to availability of requisite material but the same does not absolve the appellant from performing its statutory duties.

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23.  In A.P. SRTC v. STAT a Full  Bench of  the Andhra Pradesh High Court has noticed thus: (An LT p.544, para 31)

“31[24].  The  meaning  of  ‘note’  as  per  P. Ramanatha Aiyar’s Law Lexicon, 1997 Edn. is ‘a brief  statement  of  particulars  of  some  fact’,  a passage or explanation.”

24. The note, therefore, was merely explanatory in nature  and  thereby  the  rigour  of  the  main provision was not diluted.”

Therefore,  reliance  on  paragraph  4  of  the  scheme  and  Note  1

appended thereto by the High Court, in our opinion is misplaced.   

32. Submission of the learned counsel that the names of the concerned

employees were being maintained in the records of the State are not denied

and disputed may now be examined.  The same, in our opinion, in the facts

and circumstances of this case, are wholly immaterial.  Even assuming for

the sake of argument that they are correct, the same would not confer any

legal right on him thereby, to which he was not otherwise entitled to.   

33. It  has  categorically  been  stated  that  husbands  of  the  respective

respondents were not a regular Government employees till their death and,

thus, the Family Pension Scheme was not applicable in their cases.

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34. The  question  although  not  directly  but  to  some  extent  has  been

considered in Uttar Haryana Bijli Vitran Nigam Ltd. & Ors. vs.  Surji Devi

[2008 (1) SCALE 570] wherein it was held :

“14. The  scheme relating  to  grant  of  Family Pension was made under a statute.  A person would be entitled to the  benefit  thereof  subject  to  the  statutory  interdicts. From a bare perusal of the provisions contained in the Punjab  Civil  Services  Rules,  Volume  2  vis-à-vis  the Family  Pension  Scheme,  it  would  be  evident  that  the respondent  was  not  entitled  to  the grant  of  any family pension.  Husband of the respondent was a work-charge employee.  His services had never been regularized.  It may be unfortunate that he had worked for 11 years.  He expired  before  he  could  get  the  benefit  of  the regularization  scheme  but  sentiments  and  sympathy alone cannot be a ground for taking a view different from what is permissible in law.  [See Maruti Udyod Ltd.  v. Ram Lal and Others, (2005) 2 SCC 638, State of Bihar & Ors. v. Amrendra Kumar Mishra, 2006 (9) SCALE 549, Regional Manager, SBI v.  Mahatma Mishra, 2006 (11) SCALE 258, State of Karnataka v. Ameerbi & Ors. 2006 (13) SCALE 319 and  State of M.P. and Ors. v.  Sanjay Kumar Pathak and Ors. [2007 (12) SCALE 72]

They statutory provisions, as noticed hereinbefore, debar grant of family pension in favour of the family members as  the  deceased  employee  if  was  a  work-charge employee and not  a permanent  employee or  temporary employee.   The  period  during  which  an  employee worked as a work-charge employee could be taken into consideration only when his services are regularized and he becomes permanent and not otherwise.”

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The observations made therein apply to the facts of the present case

also.

35. For the reasons aforementioned, the impugned judgments cannot be

sustained.   The  same  are  set  aside  accordingly.   Appeals  are  allowed.

However, in the facts and circumstances of the case, there shall be no order

as to costs.

……………………………….J. [S.B. Sinha]

..…………………………..…J. [Cyriac Joseph]

New Delhi; October 24, 2008

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