Smt. Shashi Bai Jagtap vs The State Of Madhya Pradesh
2022 Latest Caselaw 145 MP

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               HIGH COURT OF MADHYA PRADESH
                          W.P. No.16985/2019
       (Smt.Shashi Bai Jagtap Vs. State of Madhya Pradesh & ors)


Jabalpur, Dated: 04.01.2022

      Shri Rahul Mishra, Advocate for the petitioner.

      Shri      Ankit     Agarwal,      Panel         Lawyer   for    the
respondents/State.

With the consent of parties, the matter is heard finally.

This petition under Article 226 of the Constitution of India has been filed praying for the following reliefs :-

i) To issue a writ in the nature of Certiorari to quash the impugned order/relevant extract of service record (annexure P/3) passed by the respondent no.4.

ii) To issue a writ in the nature of Mandamus command the respondents to settle family pension in favour of the petitioner w.e.f. 12.7.2007 @ 12% interest per annum from the date of entitled till final payment made to the petitioner.

iii) To direct the respondents to produce the entire service record for kind perusal of this Hon'ble Court and further be declared that the action of the respondents is illegal, arbitrary and contrary to the Rules, 1979 as well as M.P. Civil Services (Pension) Rules, 1976.

The grievance putforth by the petitioner in the present petition is against non-grant of family pension in lieu of death of her husband who was employeed as permanent Time Keeper in the regular establishment in the Water Resources Department on the ground that the deceased husband has not rendered 10 years of qualifying service, therefore, the petitioner is not entitled to claim family pension.

Brief facts leading to filing of the present petition are that petitioner's deceased husband was initially appointed Time keeper on daily rated basis w.e.f. 20.3.1974 under the establishment of the respondent no.3. Thereafter, he was regularized as Work Charged and Contingency paid establishment as Time Keeper w.e.f. 26.9.1998 in the pay-scale of Rs.2750-70-3800-75-4400 and the same was revised from

HIGH COURT OF MADHYA PRADESH W.P. No.16985/2019 (Smt.Shashi Bai Jagtap Vs. State of Madhya Pradesh & ors)

time to time till his death. On the date of death of petitioner's husband, i.e. 11.7.2007, he had completed 8 years, 8 months and 13 days of qualifying service. After his death, the petitioner approached the authorities claiming the family pension but the same has been turned down vide the impugned order in the relevant extract of the service record, annexure P/3 on the ground that since husband of the petitioner did not render 10 years service in the regular work charged establishment, the petitioner is not entitled for the family pension as per rule 6 of the M.P. Work Charged and Contingency Paid Employees (Pension) Rules, 1979, hereinafter referred to as the Rules of 1979. Aggrieved by the denial of family pension the petitioner has filed this petition.

It is contended by learned counsel for the petitioner that the respondents have misconstrued the provisions of the Rules of 1979 in denying the family pension which she is entitled for as per the provisions contained under Rule 4A of the 1979 Rules. It is further contended that for grant of family pension the requirement of minimum 10 years service in regular work charged establishment is not necessary and if a person engaged on a regular work charged establishment even atleast for six years his dependents would be entitled for family pension in case of his death while in service.

Per contra, learned counsel for the respondents submits that the petitioner is not entitled for family pension since her husband did not render qualifying service of 10 years as per the Rules of 1979. It is urged that since the petitioner has no right for family pension, the petition deserves to be dismissed.

Heard learned counsel for the parties and perused the record.

The sole question which arises for consideration is whether the respondents are not justified in their stand or not ? Rule 4 A of the Rules of 1979 and Rule 6 thereof respectively provide for:

HIGH COURT OF MADHYA PRADESH W.P. No.16985/2019 (Smt.Shashi Bai Jagtap Vs. State of Madhya Pradesh & ors)

"4 A. Not withstanding anything contained in rule 4 the family of a permanent employee, who dies while in service or after retirement on pension on or after the 1st April 1981 shall be entitled to family pension at the rate of 30% of his/her pay drawn at the time of death/retirement subject to minimum, of Rs.40/- per month and maximum of Rs.100/- per month subject to other conditions of Rule 47 of Madhya Pradesh Civil Services (Pension) Rules, 1976 except sub-rule (3) of the said Rules.

6. Commencement of qualifying service : (1) Subject to the provisions of Chapter III of the Madhya Pradesh Civil Services (Pension) Rules, 1976 or section IV of the Madhya Pradesh New Pension Rules, 1951, as the case may be, for calculating qualifying service of a permanent employee who retires as such, the service rendered with effect from the 1st January, 1959 onwards shall be counted. (2) On absorption of a permanent employee without interruption against any regular pensionable post, the service rendered with effect from 1" January, 1959 onward shall be counted for pension as if such service was rendered in a regular post.

(3) On absorption of temporary employee without interruption against any regular pensionable post, the service rendered with effect from 1st January, 1974 onwards, if such service is of less than six years shall be , counted for pension as if such service was rendered in a regular post.

When the aforesaid two Rules are read together, it is clear as crystal that the provisions which govern the family pension has a different field of operation than the provisions regarding pension to an employee who retires from the work-charged establishment and are governed by Rule 6 of Rules of 1979.

By virtue of Rule 4 A the provisions as contained under Rule 47 of the M. P. Civil Services (Pension) Rules, 1976 are attracted. The said Rule provides for :

47. Contributory Family Pension. -- ( 1) The provisions of this rule shall apply:-

(a) to a Government servant entering service in a pensionable establishment or on after 1st April 1966, and

(b) to a Government servant who was in service on 31st March, 1966 and came to be governed by the provisions of the Family Pension Scheme for State Government Employees, 1966 contained in Government of

HIGH COURT OF MADHYA PRADESH W.P. No.16985/2019 (Smt.Shashi Bai Jagtap Vs. State of Madhya Pradesh & ors)

Madhya Pradesh Finance Department memo No.1963/C. R903-IV- R II dated 17th August, 1966 as in force immediately before the commencement of these rules. (2) Subject to the provision of sub-rule (5) and without prejudice to the provisions contained in sub-rule (3), where a Government servant dies-

(a) during the period of service he was found medically fit at the time of appointment,

(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 34, on the date of death, the family of the deceased shall be entitled to a contributory family pension (hereinafter in this rule referred to as Family pension) the amount of which shall be determined as follows: -

Pay of Government Servant Amount of monthly Family Pension

( i) Below Rs.400 30 percent of pay subject to minimum of Rs.60 and a maximum of Rs. 100.

(ii) Rs.400 and above but not exceed ing Rs. 1200. 15 per cent of pay subject to minimum of Rs. 100 and a maximum of Rs. 160.

(iii) Above Rs. 1200 12 per cent of pay subject to a minimum of Rs. 160and a maximum ofRs.250.

A harmonious reading of Rule 4 A of Rules, 1979 and Rule 47 (2) (a) of Rules, 1976 would fresco that if a person employed in a regular work-charged establishment dies while in service, his family cannot be deprived of the pension which it would be entitled for by virtue of Rule 4 A of Rules, 1979.

Now coming to the case of Mamta Shukla (supra) the issue before the Full Bench was-

"(i) Whether the decision of the Division Bench in W.A. No. 725/2007, Smt. Rahisha Begum vs. State of M.P. and others is not a good law in view of the decision of the earlier Division Bench of this Court vide order dated 18-7- 2005, passed in W.P.No. 1273/2000, State of M.P. and others vs. Ram Singh and another ?

(ii) Whether an employee is eligible for the benefit of family pension in accordance with the provisions of Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rules, 1979, after completing

HIGH COURT OF MADHYA PRADESH W.P. No.16985/2019 (Smt.Shashi Bai Jagtap Vs. State of Madhya Pradesh & ors)

qualifying service in accordance with the provisions of Recruitment Rules framed by the concerned Department for work charged and contingency paid employees or in accordance with the definition of Rule 2 of Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rulés, 1979 in regard to "contingency paid employee", "work-charged employee" and permanent employee" ?

(iii) Whether for counting qualifying service of an employee for the purpose of grant of benefit of pension it is necessary that the employee has to be appointed in accordance with the provisions of contingency paid employees recruitment rules framed by the concerned department in regard to work charged and contingency paid employees ?"

The reference was answered in the followingterms- "24- On the basis of above discussion, we hold in regard to the substantial questions of law Nos: 2 and 3 that an employee is eligible to count his past service as qualifying service in accordance with Rule 6 of the Pension Rules, 1979, if he was appointed in accordance with the provisions of Recruitment Rules of 1977. We further hold that an employee, who was not appointed in accordance with the provisions of Recruitment Rules framed by the concerned department, i.e., the Recruitment Rules of 1977, would not be eligible to count his past service as qualifying service for the purpose of grant of pension in accordance with the Pension Rules of 1979 and we answer the substantial questions of law Nos.2 and 3 accordingly.

25. In regard to substantial question of law No. 1 Earlier Division Bench of this Court in W.P.No.1273/2000, State of M.P. vs. Ramsingh and another, as held that a daily wager employee would not fall within the definition of work charged and contingency paid employee, hence his case would not be covered by Madhya Pradesh Work charged and Contingency Paid Employees Pension Rules, 1979, has not been noticed by the subsequent Division Bench of this Court in Rahisha Begum vs. State of M P. and other, 2010(4) MPLJ 332. However, in the subsequent case, the Division Bench has held that if an employee comes within the definition of work charged and contingency paid employee as defined the Pension Rules of 1979, then he is eligible to count his past service for the purpose of qualifying service in accordance with the Rules of 1979. In our opinion, there is no conflict between the Division Bench judgments, because the findings of the Division Benches are based on different factual aspects. Accordingly, we answer the substantial question of law

HIGH COURT OF MADHYA PRADESH W.P. No.16985/2019 (Smt.Shashi Bai Jagtap Vs. State of Madhya Pradesh & ors)

No. 1 that there is no conflict of opinion between the two Division Bench judgments. Hence, the decision of the Division Bench in the case of Rahisha Begum vs. State of M.P. and others, 2010(4) MPLJ 332, is not per incuriam.

accordingly."

Apparent, it is from the above pronouncement of law that, the issue as to grant of family pension to a widow of an employee of work charged who are apparently covered by Rule 4A of Rules of 1979 was not the term of reference and nor was the same dwelt upon by the Full Bench. Thus the decision rendered therein will have no bearing upon the cause governedby Rule 4A of 1979 Rules. In view of above, the decision taken by the respondent authority depriving the petitioner of the family pension on the anvil that her husband did not complete 10 years of service in regular work-charged establishment is without any basis and is hereby set aside. The respondents are directed to settle family pension in favour of the petitioner within a period of three months from the date of communication of this order. Petitioner would also be entitled for interest at the rate of 6% from the date of entitlement till final payment.

In the result, petition is allowed to the extent above. However, no costs.

(S.A.Dharmadhikari) Judge

HS HEMANT SARAF 2022.01.05 18:12:48 +05'30'