Rajasthan High Court - Jodhpur

Jadaw Kanwar vs State Of Rajasthan on 23 January, 2023

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 13143/2019

Jadaw Kanwar W/o Late Shri Amar Singh, Aged About 75 Years, R/o Village Ghewra, Tehsil Tiwari, District Jodhpur, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Department Of Home, Government Of Rajasthan, Secretariat, Jaipur.

2. The Commissioner Of Police, Jodhpur, Commissionerate, Jodhpur, Rajasthan.

3. The Joint Director, Department Of Pension And Pensioners Welfare, Jodhpur, Rajasthan.

----Respondents

For Petitioner(s) : Mr. Vikram Singh Bhati For Respondent(s) : Ms. Pratyushi Mehta for Mr.Sandeep Shah, Sr. Advocate & AAG Mr. Sudhir Tak, AAG Mr. Ravi Panwar

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

23/01/2023

1. The petitioner has preferred the present writ petition

claiming the following reliefs :-

"A. By an appropriate writ, order or direction, any order passed by the respondents denying the provisional family pension to the petitioner may kindly be quashed and set aside.

B. By an appropriate writ, order or direction, the respondents may kindly be directed to make payment of provisional family pension to the petitioner continuously on the death of her late husband Shri Amar Singh who was recipient of the provisional pension after having been retired from services of respondent department.

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C. By an appropriate writ, order or direction, the respondents may kindly be directed to immediately release the arrear of due amount of provisional family pension with an interest @ 18% per annum to the petitioner. "

2. Learned counsel for the petitioner submits that petitioner's

husband was appointed as Constable on 10.02.1959 and in year

1967, he had given promotion to the post of Head Constable and

thereafter, he promoted on the post of Assistant Sub-Inspector.

Learned counsel further submits that by order dated 30.07.1993,

the petitioner's husband was compulsory retired under Rule 244

(2) of the Rajasthan Service Rules, 1951.

3. Learned counsel for the petitioner further submits that the

departmental proceedings, which were initiated, were not carried

on and were dropped. After compulsory retirement, the

petitioner's husband was allowed provisional pension by the

department vide order dated 13.12.1994 and a PPO no.400408

was issued by the department. Learned counsel further submits

that the petitioner's husband sought full pension, but was not

allowed by this Court in the litigation so made. The petitioner's

husband passed away on 24.11.2015.

4. Learned counsel for the petitioner has relied upon the

judgment rendered by this Court in Smt. Inder Kanwar Vs.

State of Rajasthan & Ors. (S.B. Civil Writ Petition

No.1161/2002), decided on 19.02.2009 and upheld by Hon'ble

Division Bench of this Court in D.B. Civil Special Appeal (Writ)

No.1369/2011 (State of Rajasthan & Ors. Vs. Smt. Inder

Kanwar), decided on 03.05.2012.

4.1. Thus, the common factor of the judgment of Indra Kanwar

and the present matter is that the provisional pension itself for the

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husband was sanctioned by the department at the time of

superannuation and he expired thereafter.

4.2. The relevant portion of the order dated 19.02.2009 reads as

under :-

"Learned counsel for the petitioner submits that the controversy involved in the instant case stands concluded by a decision of this Court in Smt. Shanti Devi Joshi Vs. State of Rajasthan and Ors., SBCW No.2607/2007 decided on 02.04.2008. In that case, one Shri Srikishan Joshi on attaining the age of superannuation stood retired from Govt. service and was in receipt of provisional pension and expired. Thereafter the widow of Shri Srikishan Joshi was denied the provisional family pension and that came to be challenged before this Court by wife of Shri Srikishan Joshi. In that case, the Govt. servant while serving on the post of UDC in the Education Department stood retired from service on 30.6.92. Before his retirement, a criminal case for misappropriation of the funds was lodged against him and ultimately that criminal case culminated in conviction by order dated 6.12.1995 and appeal preferred by the Govt. servant against his conviction also came to be dismissed. The Govt. servant filed revision challenging his conviction by the trial court as affirmed by the appellate court. Due to the conviction, the Govt. servant was granted provisional pension. Thereafter on 18.6.2004, the Govt. servant expired and his wife moved for grant of family pension which came to be denied by the respondents and therefore, the writ petition was filed before this Court. While considering the provisions of Rule 99 of the Rajasthan Civil Services (Pension) Rules, 1996 (for short 'the Rules of 1996' hereinafter), this Court observed as under:-

"On careful examination of Rule 99 of the Rules of 1996, I do not find any bar for grant of provisional family pension. As a matter of fact,

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as per Rule 95 of the Rules of 1996 claims for family pension and death gratuity are required to be decided by the Head of the office and after determination and computation of family pension, sanction, drawal and its disbursement is required to be made. As per Rule 99 of the Rules of 1996 the only bar is for payment of death gratuity and not for pension. What it appears is that the respondents want to apply the provisions of Rule 99 of the Rules of 1996 only for the Government Servants, who died while in service. Pertinent to note here that under the Rules of 1996 a family pension is given even to the family of a retired government servant and therefore, to restrict the provisional family pension only to the employees died while in service, shall be against the object and intention of the statute. Interpretation of a statute is always required to be made with a view to make it workable for achieving its object. The interpretation put forward by the respondents will frustrate the very purpose of granting provisional family pension to the family of a retired government servant. As a matter of fact the reasons for grant of family pension to a retired government servant and a government servant died while in service are same, hence the cause giving rise to extend family pension cannot be a ground for denial of provisional family pension."

The facts of the instant case are almost identical to that of Smt. Shanti Devi Joshi's case (supra) and therefore, this writ petition also deserves to be allowed in terms of the order passed by this Court in Smt. Shanti Devi Joshi Vs. State of Rajasthan and Ors., SBCW No.2607/2007 decided on 02.04.2008.

Consequently, the writ petition is allowed. The respondent No.3 is directed to prepare and send the papers for provisional family pension in respect of the petitioner to the respondent No.1 Family Pension Department within a period of one month from producing the certified copy of this order and the respondent No.1 shall determine and compute the provisional family

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pension payable to the petitioner from the date of death of her husband w.e.f. 28.11.1999 and to make payment of the arrears and to continue to pay the provisional family pension month by month. This exercise be completed by respondent No.1 within three months from the date of receipt of papers from the respondent No.3. There shall be no order as to costs."

4.3. The operative portion of the order dated 03.05.2012 reads

as under :-

"Having heard learned counsel for the appellants and on perusal of the material available on record, in our opinion, the impugned order passed by the learned Single Judge calls for no interference.

Undisputely the respondent's husband was working with the appellant Department and after retirement he was granted provisional pension as a criminal case was pending against him which ultimately resulted into conviction of the respondent's husband and appeal filed against his conviction was pending. That apart no departmental enquiry was initiated against the respondent for any misconduct nor any penalty has been imposed, therefore, any action on the part of appellant Department to deny provisional family pension to the respondent is illegal. The respondent's husband expired on 28.11.1999. The

material on record and a decision of this Court in Smt. Shanti Devi Joshi Vs. State of Raj. being S.B.C.W.P. No. 2607/2007 decided on 2.4.2008 wherein in almost identical facts and circumstances after considering Rule 95 and 99 of the Rajasthan Civil Services (Pension) Rules, 1996 provisional family pension was allowed, also directed the appellants to prepare and send the papers for provisional family pension in respect of the respondent to the Pension Department. Thus, we do not find any error in the impugned order passed by the

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learned Single Judge and the intra court appeal deserves to be dismissed.

Consequently, the intra court appeal being bereft of merit is dismissed. D.B.Civil Misc. Stay Petition No. 17468/2011 also stands dismissed. "

5. In light of the aforequoted judgment, the present petition is

allowed to the extent that the respondents are directed to prepare

and send the papers for provisional family pension in respect of

the petitioner to the respondent no.3-Family Pension Department

within a period of one month from producing the certified copy of

this order and respondent no.3 shall determine and compute the

provisional family pension payable to the petitioner from the date

of death of her husband w.e.f. 24.11.2015 and to make payment

of the arrears and to continue to pay the provisional family

pension month by month. This exercise be completed by

respondent no.3 within a period of three months.