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CASE NO.: Appeal (civil)  576 of 2008

PETITIONER: Uttar Haryana Bijli Vitran Nigam Ltd. & Ors.

RESPONDENT: Surji Devi

DATE OF JUDGMENT: 22/01/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T  

[Arising out of  SLP (Civil) No. 4392 of 2004]

WITH

CIVIL APPEAL NOs.577 and 587-588 OF 2008 [Arising out of  SLP (Civil) Nos. 9311 and 19530-19531 of 2004]

S.B. SINHA, J :          1.      Leave granted.

2.      The short question involved in these appeals, arising out of the  judgments and orders dated 18.09.2003 and 5.03.2004 passed by the High  Court of Punjab and Haryana in C.W.P. Nos. 631, 1110 of 2003 and Review  Application No. 71 of 2004 respectively, is as to whether family members of  a deceased employee who was appointed on a work-charged basis would be  entitled to family pension?

3.      For the purpose of disposal of these appeals, we would note the  factual matrix only from the Civil Appeal arising out of SLP (C) No. 4392 of  2004 titled Uttar Haryana Bijli Vitran Nigam Ltd. & ors. v. Surji Devi.   

4.      Appellant No. 1 was the successor of Haryana State Electricity Board  which was constituted under Section 5 and incorporated under Section 12 of  the Electricity (Supply) Act, 1948.  Respondent (Surji Devi) is the widow of  Late Shri Krishan.  He was appointed on a work-charge basis on or about  12.08.1974.  Indisputably he continued to serve the appellant no. 1 in the  same capacity.  While in service, he expired on 11.08.1985.  Respondent  was appointed on compassionate ground in the services of the appellant \026  Corporation in terms of an exgratia scheme.   

       Concededly, the deceased was a member of a Contributory Provident  Fund constituted under a Scheme.           Despite the same, the respondent filed an application for grant of  family pension, which pertains to altogether a different scheme.

5.      Concededly, Late Shri Krishan\022s services were never regularized.   The scheme for regularization also came into force in 1986.   

       As the claim of the respondent no. 1 for grant of family pension was  declined, she filed a writ petition before the High Court of Punjab and  Haryana.  The High Court by reason of the impugned judgment dated  18.09.2003, relying on or on the basis of its earlier decision rendered in Civil  Writ Petition No. 7506 of 1998 titled Kanta Devi v. State of Haryana and  Others decided on 16.12.1999, allowed the same directing:

\023\005It is the conceded position that the petitioner

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had received the benefit of pension under the EPF  scheme, but it is also the admitted position that the  amount which the petitioner would now receive on  account of family pension will be higher than the  amount received by her under the EPF scheme.

       Mr. Malik accordingly undertakes that the  petitioner will refund/ adjust the amount, which  she had already received towards the amount,  which she will now receive by way of family  pension.\024

6.      Mr. Neeraj Kumar Jain, learned counsel appearing on behalf of the  appellants, in support of the appeal would submit:

(i)     Having regard to the Punjab Civil Services Rules, Volume 2 as  applicable to the State of Haryana, the impugned judgment is  wholly unsustainable. (ii)    Respondent\022s husband having been a member of the Contributory  Provident Fund, the Family Pension Scheme was not applicable in  her case.

7.      Mr. Jasbir Singh Malik, learned counsel appearing on behalf of the  respondent, on the other hand, urged:

(i)     Appellants having not questioned the correctness of Kanta Devi  (supra), now cannot turn round and contend that the Family  Pension Scheme is not applicable. (ii)    The High Court in Kanta Devi (supra) having interpreted para 4 of  the Family Pension Scheme, the appellants are bound thereby.

8.      The State of Punjab made the Punjab Civil Services Rules.  The said  Rules, subject to modifications, became applicable to the State of Haryana.   Volume 2 of the said Rules inter alia provide for service qualifying for  pension.  Rule 3.12 thereof reads as under: \0233.12 The service of a Government employee does  not qualify for pension unless it conforms to the  following three conditions: -  First \026 The service must be under Government. Second \026 The employment must be substantive  and permanent. Third \026 The service must be paid by Government.\024

9.      Rule 3.17 of the Rules provides that 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 the pension period of temporary or officiating service in non- pensionable establishment.   

10.     Rule 3.17-A(g) of the Rules inter alia provides that the entire service  rendered by an employee as work-charged shall be reckoned towards  retirement benefits provided:

(i)     such service is followed by regular employment; (ii)    there is no interruption in the two or more spells of service or the  interruptions fall within condonable limits; and (iii)   such service is a whole time employment and not part-time or  portion of day. [Emphasis supplied] 11.     Indisputably, there exist two schemes; one in relation to Contributory  Provident Fund and another in relation to Pension.  The Scheme of grant of  Family Pension is contained in Appendix 1 of the said Rules.  Relevant

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portion of Para 4 of the said Scheme reads as under:

\0234. 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  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. \026 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.

***             ***                     *** (iii)   The pension is admissible:- (a)     in the case of widow/widower upto  the date of death or remarriage, whichever is  earlier; and (b)     in the case of son/unmarried daughter  until he/she attains the age of 25 years.\024

12.     Para 11 of the said Scheme excludes the applicability of the scheme  inter alia in relation to the work-charge staff.  We may notice that in Kanta  Devi (supra) the husband of the appellant therein was in temporary service.   Construing Para 4(i) as also Note 1 appended thereto, the High Court held  that as the husband of Kanta Devi completed more than one year in  temporary service, she was entitled to family pension.   

13.     We have noticed hereinbefore that Shri Krishan was a member of the  Contributory Provident Fund.  It has furthermore been noticed by us that  even before the High Court the said position stood conceded but she opted  for the Pension Scheme only because thereby she considered herself to be  entitled to a higher amount.

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-‘-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

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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.   

       Furthermore, there exists a distinction between a pensionable and non- pensionable establishment.  Shri Krishan being a member of a non- pensionable establishment, Family Pension was not admissible.  It is not a  case where an employee had been given an option to opt for one or the other  schemes.  Once a person had opted for non-pensionable scheme, the  question of his being entitled to pension or for that matter his family  members becoming entitled to family pension did not and could not arise.   The High Court only followed Kanta Devi (supra) without noticing the  distinctive features thereof.  As it is not necessary, we have not gone into the  question as to whether Kanta Devi (supra) was correctly decided.  Apart  from the fact that the fact therein was different, evidently the questions  which have been raised before us were not raised therein.  The High Court,  therefore, committed a serious error in applying Kanta Devi (supra) to the  fact of the present case.

15.     Mr. Malik contended that it has wrongly been stated in the list of dates  that the appeal against Kanta Devi (supra) has remained pending before this  Court and, thus, it being a mis-statement, the leave granted should be  revoked.  It may be so but in a case of this nature this Court is required to lay  down the law.  We do not, thus, intend to revoke the leave.  However, we  direct that any benefit paid to the respondent should not be recovered.

16.     For the reasons aforementioned, the appeal is allowed with the  aforementioned directions.  However, in the facts and circumstances of this  case, there shall be no order as to costs.