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PETITIONER: STATE OF GUJARAT THROUGH CHIEF SECRETARY & ORS.

       Vs.

RESPONDENT: SARTI DEVI

DATE OF JUDGMENT27/11/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR  937            1996 SCC  (1) 558  JT 1995 (9)   224        1995 SCALE  (7)260

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      Lal Singh,  son of  the respondent who died in harness, had worked  as constable  in Gujarat State Reserve Police in the year  1975. He  was recruited  in the  year  1965  as  a constable. After  his demise,  his widow Savitri was granted family pension.  She contracted  second  marriage  in  1976. Consequently, the  appellant stopped  paying pension  to the widow. In 1987, the respondent laid the suit in the court of Additional Senior  Sub-Judge,  Mohindergarh,  Haryana  State claiming family  pension. The  trial court decreed the suit. On appeal,  the District  Court refused to condone the delay of 107  days and confirmed the decree of the trial court and when second  appeal was  preferred, the  High Court  in  RSA No.1660/94 by  an order  dated 17th December, 1994 dismissed it, as usual, in limine. Thus this appeal by special leave.      Two questions  have been  raised in  this appeal. First relates  to   the  jurisdiction   and  the   second  to  the entitlement of the respondent to pension. It is an admitteed fact that  the deceased  Lal Singh  served as a constable in the State  of Gujarat.  Section 20, Code of Civil Procedure, 1908 envisages  institution of  the suit in the court within whose jurisdiction the defendants ordinarily reside etc. The appellant’s offices  are situated  in Gujarat  State and  no part of  the cause  of action had arisen in Haryana. Neither counsel  can  waive  the  jurisdiction  nor  consent  confer jurisdiction on  courts situated  in the  State of  Haryana. Therefore, none of the courts in Haryana has any territorial jurisdiction to  entertain  the  suit  for  the  payment  of pension by  the State of Gujarat. Under these circumstances, the decree  of the  trial court  is one  of  total  lack  of jurisdiction. It is a nullity.      The next  question is whether respondent is entitled to the family pension. The State of Gujarat made family pension under revised  family pension  scheme in  1972 enabling  the

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dependents to  get pension for a maximum period of 10 years. As mentioned in the preamble of the order itself:      "Under the  existing orders (The revised      pension  Rules   1950,  as   amended)  a      Government  servant   has  to   complete      service of  not less  than 10  years  in      order to become eligible for the benefit      of Family  Pension and  also duration of      the pension  is  limited  to  a  maximum      period  of   10  years.   The   existing      provisions were not found to be adequate      and  as   such  the  position  has  been      reviewed and  a fresh  scheme  has  been      drawn up which provides at varying rates      a pension  for the  life to the widow of      the  deceased   Government  servants  as      detailed.      ’Family’ has been defined in Rule 3 of the Rules:           ""Family"  for   purposes  of  this      scheme  will   include   the   following      relatives of the Government servants:-      (a)  wife,   in  the   case  of  a  male      Government servant;      (b) husband,  in the  case of  a  female      Government servant;      (c) minor sons; and      (d) unmarried or minor daughters.      Note 1-(c) and (d) will include children      adopted legally before retirement/death.      Note 2-Marriage  after  retirement  will      not be  recognised for  purposes of this      scheme."      A reading  thereof clearly  indicates that  the  family consists of  the relatives, namely, the widow (if he happens to be  married) of  the deceased  in case of male Government servant and husband in case of female Government servant and minor sons  and unmarried  or minor daughter. In the case of the   children,    legally    adopted    children,    before retirement/death also would become members of the family. If the widow  remarries, she becomes disentitled to the pension as she ceases to be the member of the family. Obviously, for this reason,  the widow  Savitri Devi  was not given pension after her remarriage in 1976.      The question  is whether mother is a dependent. In view of the express definition of the family, mother has not been included as  a member  of the  family to  claim  any  family pension from  the Government,  much less  after the  maximum period of  ten years.  Under these  circumstances, in either event, the  decree of  trial court  as affirmed by appellate court and second appeal, are clearly illegal.      It is  stated that  the mother-respondent is aged woman of 85  years. She  has no other source except her dependence on her  deceased son  and, therefore, some consideration may be shown  to the aged mother. In view of the peculiar facts, without treating this order as a precedent, we think that an ex-gratia payment will be made by the State. Accordingly, we direct the appellant-State to pay a sum of Rs.6,000/- to the appellant as ex-gratia.      Accordingly, the  decree of  the  court  below  is  set aside. It  is directed  that the  State to  pay  the  amount within a  period of  two months from the date of the receipt of this  order. The learned counsel for the respondent would give the  address of  the respondent  to the counsel for the State which  would be communicated to the appellants and the amount shall  be disbursed  to the  address so  stated.  The

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appeal is disposed of. No costs.