Himachal Pradesh High Court
__________________________________________________________ vs The State Of H.P. And Others on 4 June, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
[2020:HHC:10518-DB] IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWPOA No.267 of 2020 Reserved on: 29.05.2025 Announced on : 04.06.2025 __________________________________________________________ Satya Devi .....Petitioner Versus The State of H.P. and others ......Respondents Coram Hon'ble Mr. Justice Vivek Singh Thakur, Judge Hon'ble Mr. Justice Ranjan Sharma, Judge 1Whether approved for reporting? Yes For the petitioner: Mr. A.K. Gupta and Ms. Babita Chauhan, Advocates.
For the respondents: Mr. Anup Rattan, Advocate General with Mr. Manoj Chauhan, Additional Advocate General, for respondents No.1 to 4-State.
Mr. Lokender Paul Thakur, Senior Panel Counsel, for respondent No.5-Senior Deputy Accountant General, Himachal Pradesh.
s Ranjan Sharma, Judge Petitioner, Satya Devi, being the widow of Shri Jagat Ram, has come up before this Court, seeking the following relief:-
"That the respondents may be ordered to grant family pension to the applicant from the due date with all the benefits incidental thereof."
1 Whether reporters of Local Papers may be allowed to see the judgment?
-2- [2020:HHC:10518-DB]
FACTUAL MATRIX:
2. Case set up by Learned Counsel for the petitioner is that her husband, Late Shri Jagat Ram was engaged as Beldar in Irrigation & Public Health Department, Division Arki, District Solan, Himachal Pradesh in the year 1994 and he continued as such under the Respondents. Though late husband of the petitioner became eligible and entitled for conferment of work charge status on completion of eight years of continuous service but, the said benefit was denied to her late husband, who ultimately expired while serving on daily wage basis on 17.03.2007.
2(i). After the death of her late husband Shri Jagat Ram on 17.03.2007, the present petitioner, filed an Original Application No.4699 of 2015, titled as Satya Devi Versus State of Himachal Pradesh and others, praying for conferment of work charge status in terms of the mandate of this Court in CWP No.2735 of 2010, titled as Rakesh Kumar Versus State of H.P. & ors. alongwith connected matters, decided on 28.07.2010. In terms of order dated 10.05.2016
-3- [2020:HHC:10518-DB] [Annexure R-1], the work charge status was granted to the petitioner's husband, late Shri Jagat Ram, posthumously w.e.f. 01.01.2002, as Beldar, in the pay scale of Rs.2520-4140 by the Respondents. After conferment of regularization/work charge status, the petitioner had filed the instant petition, on 21.09.2016, praying for grant of family pension to the petitioner, being widow of late Shri Jagat Ram [supra], with all consequential benefits incidental thereof.
PROCEEDINGS BEFORE STATE ADMINISTRATIVE TRIBUNAL AND BEFORE THIS COURT:
2(ii). Petitioner had filed an Original Application No.4828 of 2016 before the State Administrative Tribunal in which notices were issued on 22.09.2016 directing the respondents to file reply.
STAND OF STATE AUTHORITIES IN REPLY- AFFIDAVIT:
3. Pursuant to issuance of notice, Respondents No.1 to 4 have filed Reply dated 26.11.2016 on the affidavit of Superintending Engineer, Irrigation & Public Health Department, Circle, Shimla-9.
3(i). A perusal of Reply-Affidavit admits the
-4- [2020:HHC:10518-DB] factual matrix of the case that the husband of the petitioner, late Shri Jagat Ram was engaged as Beldar in the year 1994 and he expired during service on 17.03.2007. Reply-Affidavit further indicates that pursuant to filing of a petition by present petitioner, the case of late Shri Jagat Ram, husband of petitioner was considered and found eligible for grant of work charge status w.e.f. 01.01.2002, on completion of eight years of continuous service from 1994 to 30.12.2001. Reply-Affidavit further indicated that as per orders dated 10.05.2016, Annexure R-1, husband of the petitioner, late Shri Jagat Ram was regularized as work charge Beldar w.e.f. 01.01.2002, in the pay scale of Rs.2520-4140 posthumously [having expired on 17.03.2007]. Reply-Affidavit further indicates that after having been conferred regular/work charge status w.e.f. 01.01.2002 as per orders dated 10.05.2016, Annexure R-1, petitioner, who was governed by Fundamental Rule [FR]-56 had a right to continue in service upto the age of superannuation of 58 years on 30.06.2006 and accordingly since the petitioner
-5- [2020:HHC:10518-DB] had continued in service as daily wager, till his death on 17.03.2007, therefore, the respondents issued order on 02.06.2016, Annexure R-2, treating the petitioner's husband to have been deemed retired from service w.e.f. 30.06.2006. The Executive Engineer, Irrigation & Public Health Department, Division issued another order dated 07.11.2016, Annexure R-3, whereby, the period beyond the deemed date of retirement on 30.06.2006 till his death on 17.03.2007 was treated as period of re-employment on daily wage basis. This order further indicated that this period [i.e. 30.06.2006 to 17.03.2007] shall not be counted for pensionary or other retiral benefits.
3(ii). So far as the claim of the present petitioner, Satya Devi, for family pension is concerned, Reply- Affidavit indicated that petitioner is not entitled for grant of pension/family pension as her husband had rendered 4 years and 6 months service on work charge basis which was short of 10 years of regular service and, therefore, the petitioner was not eligible for family pension under the Central Civil Services
-6- [2020:HHC:10518-DB] [Pension] Rules, {in short 'CCS [Pension] Rules'} In Para 6(i) of Reply-Affidavit, Respondents had stated that family pension was admissible only in two cases, when, a Government official is drawing a pension after his death and then, his family becomes eligible for family pension and, secondly, when the person is working on regular basis and he dies while in service. In this background, a prayer has been made for dismissing the instant writ petition.
REBUTTAL BY PETITIONER:
4. Petitioner, Satya Devi, had filed a rejoinder on 29.04.2024 stating that petitioner's husband had rendered more than six years' service till his death on 17.03.2007. Rejoinder-Affidavit indicates that as per Family Pension Rules, if a Government servant has rendered more than one year's service on the date of death, without being medically examined then, the family pension was admissible to legal heirs/eligible family members. It is further averred in the rejoinder, that based on similar fact situation, benefit of family pension has been given to another widow, namely,
-7- [2020:HHC:10518-DB] Kalawati, in CWP(T) No.8894 of 2008 and the aforesaid judgment has attained finality.
EARLIER ROUND OF LITIGATION IN INSTANT CASE:
5. Material on record indicates that instant CWPOA No.267 of 2020 [originating from OA No.4828 of 2016] was decided by this Court on 16.10.2020 but, the State Authorities filed a Review Petition No.239 of 2022, titled as State of Himachal Pradesh and others Versus Smt. Satya Devi and another, which was decided by a Division Bench of this Court on 28.11.2022, whereby the judgment dated 16.10.2020 was reviewed and CWPOA No.267 of 2020 was restored to file and was directed to be listed after three weeks.
6. Heard, Mr. A.K. Gupta, Advocate for the petitioner and Mr. Anup Rattan, Learned Advocate General assisted by Mr. Manoj Chauhan, Learned Additional Advocate General, for the Respondents.
STATUTORY PROVISIONS:
7. Before analyzing the claims and contentions of the parties herein, it is necessary to
-8- [2020:HHC:10518-DB] have a recap of relevant Statutory Provisions of Rule 3 (1) (f) and Rule 54 of CCS [Pension] Rules, 1972, as applicable to the employees of the Respondents-
State, governing the admissibility of family pension, in the following terms:-
"3. Definitions:
3(1) (a) to (e)................Not relevant...............
3(1) (f):
'Family Pension' means 'Family Pension, 1964', admissible under Rule 54 but does not include dearness relief.
54. Family Pension, 1964 (1) The provisions of this rule shall apply-
(a) to a Government servant entering service in a pensionable establishment on or after the 1st January, 1964; and
(b) to a Government servant who was in service on the 31st December, 1963 and came to be governed by the provisions of the Family Pension Scheme for Central Government Employees, 1964, contained in the Ministry of Finance, Office Memorandum No. 9 (16)-E. V (A)/63, dated the 31st December, 1963, as in force immediately before the commencement of these rules.
[NOTE-The provisions of this rule will also extend, from 22nd September, 1977, to Government servants on pensionable establish-ments who retire/died before 31- 12-1963, as also to those who were alive
-9- [2020:HHC:10518-DB] on 31-12-1963, but had opted out of 1964 Scheme.] (2) Without prejudice to the provisions contained in sub-rule (3), where a Government servant dies-
(a) after completion of one year of continuous service; or (aa) before completion of one year of continuous service, provided the deceased Government servant concerned immediately prior to his appointment to the service or post was examined by the appropriate Medical Authority and declared fit by that authority for Government service; or
(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 37, the family of the deceased shall be entitled to Family Pension, 1964 (here- inafter in this rule referred to as family pension) the amount of which shall be determined in accordance with the Table below:
EXPLANATION The expression 'continuous one year of service' wherever it occurs in this rule shall be construed to include than one year of continuous service' as defined in Clause (aa).
(2-A) The amount of family pension shall be fixed at monthly rates and be expressed in whole rupees and where the family pension contains a fraction of a rupee, it shall be rounded off to the next higher rupee:
Provided that in no case a family pension in excess of the maximum
- 10 - [2020:HHC:10518-DB] prescribed under this rule shall be allowed.
Rule 54 (3) (a) (i) to (11-B) (a) (b): ............Not relevant..........
Rule (11-C) (a):
If a person, who in the event of death of a Government servant while in service, is eligible to receive family pension under this rule, is charged with the offence of murdering the Government servant or for abetting in the commission of such an offence, the claim of such a person, including other eligible member or members of the family to receive the family pension, shall remain suspended till the conclusion of the criminal proceedings Instituted against him.
Rule 54 (11-C) (b) to (13-A):................Not relevant................
Rule (13-B):
Family Pension admissible under this rule shall not be granted to a person who is already in receipt of Family Pension or is eligible therefor under any other rules of the Central Government or a State Government and/or Public Sector Undertaking/ Autonomous Body/Local Fund under the Central or a State Government:
Provided that a person who is other eligible for family pension under this rule may opt to receive family pension under this rule if he forgoes family pension admissible from any other source.
Provided further that family pension admissible under the Employees Pension Scheme, 1995 and the Family Pension Scheme, 1971,
- 11 - [2020:HHC:10518-DB] shall, however, be allowed in addition to the Family pension admissible under these rules.
Rule (14) For the purpose of this rule:
(a) "continuous service" means service rendered in a temporary or permanent capacity in a pensionable establishment and does not include:-
(i) Period of suspension, if any; and
(ii) Period of service, if any rendered before attaining the age of eighteen years;
(b) "family" in relation to a Government servant means___
(i) Wife in the case of a male Government servant, or husband in the case of a female Government servant.
(ia) a judicially separated wife or husband, such separation not being granted on the ground of adultery and the person surviving was not held guilty of committing adultery.
(ii) son who has not attained the age of twenty-five years and unmarried daughter who has not been attained the age of twenty-five years, including such son and daughter adopted legally.
(c) "pay" means:-
(i) the emoluments as specified in Rule-33,
or
(ii) the average emoluments as referred to in
Rule 34 if the emoluments of the deceased Government servant have been reduced during the last then months of the service otherwise than as penalty."
ANALYSIS:
- 12 - [2020:HHC:10518-DB]
8. Taking into account the entirety of facts and circumstances, this Court is of the considered view that claim of present petitioner, Satya Devi, for family pension on account of death of her late husband, Shri Jagat Ram on 17.03.2007 during service carries weight; entitling the petitioner for family pension w.e.f. 17.03.2007, for the following reasons:-
8(i). Petitioner's husband, late Shri Jagat Ram, was engaged as daily wage Beldar in 1994 and he served as such with continuous service upto 31.12.2001. He completed eight years of continuous service and became eligible for regularization/conferment of work charge status, on completion of eight years of service w.e.f. 01.01.2002. This benefit was denied to the petitioner's husband till his death on 17.03.2007.
However, after filing of a petition by the present petitioner i.e. OA No.4699 of 2015 and in compliance thereto, the Executive Engineer, Irrigation and Public Health Department, Division Arki, District Solan, Himachal Pradesh, passed order dated 10.05.2016, Annexure R-1, regularizing and giving the work charge
- 13 - [2020:HHC:10518-DB] status to petitioner's husband posthumously w.e.f.
01.01.2002 till 17.03.2007 [i.e. the date he expired].
Respondent-Executive Engineer issued an order on 02.06.2016, Annexure R-2, whereby, the petitioner's husband, late Shri Jagat Ram, was deemed to have retired from service on 30.06.2006 i.e. the date on which he attained the age of fifty-eight years. Another order was issued on 07.11.2016, Annexure R-3, whereby, the period from 30.06.2006 till 17.03.2007 was directed not to be counted for any pensionary or other retiral benefits. At this stage, it is important to note that since petitioner's husband was engaged in service on daily wage basis prior to 10.05.2001 then, in terms of Full Bench mandate of this Court, in CWP No.2711 of 2017, titled as Baldev Versus State of Himachal Pradesh and others, the petitioner's husband, late Shri Jagat Ram, had a right to continue upto the age of sixty years or in this case till his death on 17.03.2007 [i.e. beyond the age of 58 years on 30.06.2006 to 17.03.2007] and such, the entire period was countable as service period for extending
- 14 - [2020:HHC:10518-DB] benefit of pension/family pension as the case may be. In this background, the service rendered by the petitioner's husband, Late Shri Jagat Ram, is to be treated as regular/work charge employee [w.e.f. 01.01.2002 till his death on 17.03.2007] comes to five years and three months.
8(ii). Indisputably, once the petitioner's husband, late Shri Jagat Ram, had rendered five years and three months of service from 01.01.2002 till his death on 17.03.2007, therefore, in terms of FR-56 and the mandate of Full Bench judgment of this Court, in the case of Baldev [supra], the present petitioner widow is eligible, for family pension in terms of FR-54 (2) (a) of CCS [Pension] Rules by taking into account that the petitioner's husband had died "after completion of one year's continuous service." Moreover, as per Rule 54 (14) of CCS [Pension] Rules, expression "continuous service", means the service rendered in temporary capacity in a pensionable establishment. An exception has been carved out, to Rule 54 (14) of CCS [Pension] Rules, even if the
- 15 - [2020:HHC:10518-DB] employees had died after one year's continuous service yet the family pension can be denied if, such continuous service is not in a pensionable establishment; and during such service the deceased employee was not under suspension; and such continuous service was rendered before attaining the age of eighteen years. Similar ineligibility is carved out in Rule 54 (13-B), denying family pension, in case, the person claiming family pension is already in receipt of family pension or is eligible therefor under any other Rules of Central/State Government and/or PSU or Autonomous body/Local Body under Central/State Government.
In this backdrop, this Court is of the considered view, that once the petitioner's husband, late Shri Jagat Ram, had died after rendering one year's continuous service [from 01.01.2002 till his death on 17.03.2007]; coupled with the fact that during such service, petitioner's husband was neither under suspension nor such service was rendered before attaining the age of eighteen and the petitioner
- 16 - [2020:HHC:10518-DB] is neither in receipt of nor is she eligible for family pension under any other Rules [under Rule 54 (14) or 54 (13-B) of CCS Pension Rules] but the service was rendered by the petitioner's husband in a pensionable establishment; then, the present petitioner who does not fall under any of the ineligibility or disqualifying conditions; and therefore, in these circumstances, the petitioner-widow widow is eligible and is held entitled for family pension from the date of death of her husband on 17.03.2007. 8(iii). The admissibility of family pension under Rule 54 of CCS [Pension] Rules has merit, in view of the fact that petitioner being the widow of late Shri Jagat Ram falls within the ambit of family under Rule 54 (2) of CCS [Pension] Rules read with Rule 54 (14) (b) of said Rules; coupled with the fact that the petitioner's husband had rendered more than one year's continuous service, as referred to above [from 01.01.2002 till his death on 17.03.2007] then, the petitioner being the widow, is eligible and entitled for family pension w.e.f. date of death
- 17 - [2020:HHC:10518-DB] of her husband on 17.03.2007.
8(iv). Eligibility and entitlement of family pension and the admissibility of family pension is a legal entitlement constituting property of family member of deceased including the present petitioner. Once Rule 54 of CCS [Pension] Rules mandates for grant of family pension to eligible member of a family of deceased employee, who dies after completion of one year's continuous service and such the continuous service is rendered in a temporary capacity in a pensionable establishment and such service does not precedes any stigma of suspension or such service was not rendered before attaining the age of eighteen years and there is no other provision in Rule 54 of CCS [Pension] Rules, disentitling the present petitioner- widow for family pension, therefore, in these circumstances, the denial of family pension, which is a property, within the meaning of Article 300-A of the Constitution of India being without authority of law cannot sustain. Moreover, the deprivation of family pension without issuing prior notice, without affording
- 18 - [2020:HHC:10518-DB] an opportunity of personal hearing has visited the petitioner with civil consequences resulting in depriving the petitioner of her legal entitlement of family pension was 17.03.2007 till day, and the State action is not sustainable, in the eyes of law. Accordingly, denial of family pension to widow of late Shri Jagat Ram on w.e.f. 17.03.2007, is quashed and set-aside.
8(v). While dealing with similar situation, Co-ordinate Bench of this Court has allowed the family pension to one Kalawati being widow of late Shri Roop Singh, work charge Beldar upon completion of one year's continuous service in CWP(T) No. 8894 of 2008, titled as Smt. Kalawati Versus The State of Himachal Pradesh and others in the following terms:-
"The petitioner is the wife of deceased Roop Singh, who was working with the respondents. It is undisputed before me that deceased Roop Singh was offered a temporary post of Work-charged Beldar w.e.f. 1.1.1994 in the pay scale of Rs.770- 1410 vide Annexure R2 on the terms and conditions as submitted therein. It is also undisputed before me that deceased Roop Singh died on 25.2.1995 and that he joined his services as daily waged Beldar in
- 19 - [2020:HHC:10518-DB] H.P.PWD, Rajgarh on 1.1.1994. Learned counsel for the petitioner relies upon Rule 54 sub-rule (2) (a) of the CCS (Pension) Rules 1972 to urge that since the deceased has put more than one year service with the State Government, he was entitled to family pension.
2. This prayer is opposed by the learned Assistant Advocate General primarily on the ground that there is nothing on the record to establish that after issuance of Annexure R2, the deceased had actually joined service or not. I cannot accept this submission made on behalf of the respondents. According to the man-days chart (Annexure:
R1) prepared by the respondents, the deceased reported for duty on January, 1994. There is nothing on the record placed by the respondents to show that the deceased Roop Singh had voluntarily abandoned services with the respondents.
3. In these circumstances, this writ petition is allowed. I direct that the petitioner be granted the family pension in accordance with the Rules applicable. Petition is disposed of. No order as to costs."
In backdrop of the mandate of law in the case of Kalawati [supra], once the petitioner, Satya Devi, being the widow of late Shri Jagat Ram is similarly placed and is eligible and entitled for family pension under Rule 54 (2) (a) of CCS (Pension) Rules by taking into account one year's continuous service rendered by her deceased husband, then, the present petitioner being similarly placed, is entitled for the
- 20 - [2020:HHC:10518-DB] benefit of said judgment in the instant case also. 8(vi). The intent and object of family pension is to give breather to the family members of deceased, so as to enable the distressed family to eke out a living due to demise of a government servant. Grant of family pension being socio-economic schemes is aimed at ensuring decent standard of life in the december of life needs to be given a purposive and liberal interpretation, in favour of family members who seek family pension in a case.
8(vii). The intent and object of a family pension has been outlined by the Hon'ble Supreme Court in Bhagwanti Versus Union of India and connected matter, (1989) 4 SCC 397, in the following terms:-
"9. Pension is payable, as pointed out in several judgments of this Court, on the consideration of past service rendered by the Government servant. Payability of the family pension is basically on the self same consideration. Since pension is linked with past service and the avowed purpose of the Pension Rules is to provide sustenance in old age, distinction between marriage during service and marriage after retirement appears to be indeed arbitrary. There are instances where a Government servant contracts his first marriage after retirement. In these two cases before us, retirement had been at an early age. In the Subedar's case, he had retired
- 21 - [2020:HHC:10518-DB] after putting in 18 years of service and the Railway employee had retired prematurely at the age of 44. Premature or early retirement has indeed no relevance for deciding the point at issue. It is not the case of the Union of India and, perhaps there would have been no force in such contention if raised, that family pension is admissible on account of the fact that the spouse contributed to the efficiency of the Government servant during his service career. In most cases, marriage after retirement is done to provide protection, secure companionship and to secure support in old age. The consideration upon which pension proper is admissible or the benefit of the family pension has been extended do not justify the distinction envisaged in the definition of 'family' by keeping the post- retiral spouse out of it."
8(viii). Claim for pension, including family pension originating from Rules/OM not a bounty but is a social welfare measure payable to the distressed family member of the family of the deceased so as to maintain the family has been outlined by the Hon'ble Supreme Court, in V. Sukumaran Versus State of Kerala and another, (2020) SCC 106, in the following terms:-
1. Pension is succour for post-retirement period. It is not a bounty payable at will, but a social welfare measure as a post-
retirement entitlement to maintain the dignity of the employee. The appellant has been claiming his entitlement for the last almost 13 years but unsuccessfully, despite having worked with Government
- 22 - [2020:HHC:10518-DB] departments in various capacities for about 32 years.
18. Learned counsel for the appellant also sought to emphasise that pension is a right vested in a Government servant and is not a bounty payable at the will and pleasure of the Government as also that pension is a social welfare measure and a post retirement entitlement; something with which we began our order. (D.S. Nakara v.Union of India, U.P. Raghavendra Acharya v. State of Karnataka, Deokinandan Prasad v. The State of Bihar.}
22. We begin by, once again, emphasising that the pensionary provisions must be given a liberal construction as a social welfare measure. This does not imply that something can be given contrary to rules, but the very basis for grant of such pension must be kept in mind, i.e., to facilitate a retired Government employee to live with dignity in his winter of life and, thus, such benefit should not be unreasonably denied to an employee, more so on technicalities."
9. Plea of the State Authorities in Reply- Affidavit is that petitioner's husband had died on 17.03.2007 as a work charge Beldar and, therefore, family pension was not admissible to the present petitioner.
9(i). Above plea of the State Authorities is negativated in view of the provision of Rule 54 (2) (a) read with Rule 54 (14) (a) of CCS [Pension] Rules, which entitles a widow, including the petitioner for
- 23 - [2020:HHC:10518-DB] family pension, in case the employee had died after rendering one year's continuous service and such continuous service means service rendered in a temporary capacity in pensionable establishment. In these circumstances, once the petitioner's husband was granted regularization/work charge status on 10.05.2016 [Annexure R-1] posthumously; then, the service w.e.f. 01.01.2002 till death on 17.03.2007 by petitioner's husband, in a temporary capacity, in a pensionable establishment makes present petitioner
-widow as eligible and entitled for family pension. The artificial classification sought to be invoked by State Authorities, by taking the plea that the work charge service [from 01.01.2002 till death of her husband on 17.03.2007] is not to be counted for pension/family pension, is misconceived and devoid of any merit, for the following reason, that such work charge service, is in a time scale of Rs.2520-4140, and is a service rendered or taken to be rendered in a temporary capacity in a pensionable establishment. Moreover, pursuant to judgment passed by this Court
- 24 - [2020:HHC:10518-DB] in Sukru Ram Vs. The State of H.P. and others [CWP No.6167 of 2012] decided on 06.03.2012 and in State of Himachal Pradesh & Others Versus Sh. Matwar Singh & Another [CWP No.2384 of 2018] decided on 18.12.2018, the service rendered on work charge basis is held to be countable for pension/family pension. The operative part of the judgment in case of Matwar Singh [supra] reads as under:-
"The challenge laid in this writ petition is to the order dated 31st July, 2017, passed by the H.P. State Administrative Tribunal in O.A. No.6681 of 2016, titled as Matwar Singh versus State of Himachal Pradesh and Others, whereby the respondent's claim to count the work charge service towards qualifying service for the purpose of pension and other retiral benefits has been accepted.
2. The facts are not in dispute. The private respondent joined the petitioners' Department as daily waged worker in the year 1992 at Saraswati Nagar Range under the jurisdiction of the Divisional Forest Officer, Forest Division, Rohru, Distt. Shimla. He was subsequently conferred status of work charge employee w.e.f. 01.05.2002. His services were later on regularized as Forest Worker w.e.f. 06.09.2007 as per the policy of the State Government. It appears that the respondent's claim for grant of pension was declined on the ground that he did not possess the requisite qualifying service. It is in this backdrop that the
- 25 - [2020:HHC:10518-DB] respondent approached the Tribunal and his claim has been accepted.
3. It is by now well settled that the work charge status followed by regular appointment has to be counted as a component of qualifying service for the purpose of pension and other retiral benefits. Executive instructions, if any, issued by the Finance Department to the contrary, are liable to be ignored/struck down, in the light of view taken by this Court in CWP No.6167 of 2017, titled Sukru Ram vs. State of H.P. & others, decided on 6th March, 2013. A Full Bench of Punjab and Haryana High Court in Keshar Chand vs. State of Punjab through the Secretary P.W.D. B & R Chandigarh and others, (1988) 94(2) PLR 223, also dealt with an identical issue where Rule 3.17(ii) of the Punjab Civil Services Rules excluded the work charge service for the purpose of qualifying service. Setting aside the said Rule being violative of Articles 14 and 16 of the Constitution of India, it was held that the work charge service followed by regular appointment will count towards qualifying service for the purpose of pension and other retiral benefits. The aforesaid view was also confirmed by the Hon'ble Apex Court.
4. For the afore-stated reasons, we do not find any error in the impugned order passed by the Tribunal. Accordingly, the writ petition is dismissed alongwith pending application(s), if any."
10. Learned State Counsel submits that the family pension cannot be granted as the service was rendered by petitioner's husband Late Shri Jagat Ram in a temporary-work charge capacity.
10(i). For better analysis, a perusal of the
- 26 - [2020:HHC:10518-DB]
communication dated 25.11.1975 issued by Finance Department, which forms part of judgment, in case of Beli Ram Versus State of H.P. and another [CWPOA No.52 of 2019] decided on 10.09.2020, reads as under:-
"27. At this stage, a communication dated 25.11.1975 sent from the Secretary (PW) to the Government of Himachal Pradesh, to the Chief Engineers, HPPWD, is also relevant for reference, whereby with concurrence of Finance Department, it has been clarified that all work-charged employees, including temporary industrial workers, are to be treated to be part of pensionable establishment. The said communication is reproduced as under, for convenience:
From The Secretary (PW) to the Government of Himachal Pradesh To The Chief Engineers, H.P.P.W.D. , Shimla-171001.
Dated Shimla-171002, the 25th November, 1975.
Subject: Extension of Family Pension Scheme 1964 to the temporary work charged staff.
Sir, I am directed to refer to your letter No.PWD-133-(Pension)/75-10844, dated 30/8/75 and this Department Office Order No.1-18/69-PWD(Part), dated 4/4/1973 and to say that in C.P.W.D., the temporary Work Charge staff having been given option either to
- 27 - [2020:HHC:10518-DB] join the pensionary establishment or to be admitted to or retain W.C Provident Fund, w.e.f. 21-5-71, a question was raised that the benefits of Family pension scheme, 1964 may be extended to all the temporary W.C. staff of H.P.P.W.D. as admissible to their counterparts in C.P.W.D. In this connection, the matter has been carefully considered. There was and is no C.P.F. Scheme in operation in Himachal Pradesh. The Permanent W.C. staff under H.P.P.W.D. was extended the benefits of liberalized pension rules/gratuity, and family pension Scheme, w.e.f. 18.11.60 and 1.1.64 respectively. This was in accordance with the decision contained in. Government of India, Ministry of Finance (Department of Expenditure) office memo. No. 17(5)-EV(A)/60, dated 18.1.60. The Government of India vide their office memorandum No.8.43(4)-EV(B)/71, dated 1.5.71, in modification of the orders dated 18.11.60 have extended the benefits to the temporary W.C. staff to join the pensionable establishment or be admitted to or retain Contributory Provide Fund benefits referred to above.
Since in Himachal Pradesh, the temporary W.C. employees, falling in the category of industrial were not enjoying concession of C.P.F benefits, and permanent W.C. employees were already entitled to pensionary/family pension benefits which were extended to them with retrospective effect w.e.f. 18.11 60 and 1.1.64 respectively. It is clarified that all W.C. employees including temporary industrial workers are to be treated to be part of the pensionable establishment.
This issue with the concurrence of the Finance Department obtained vide their U.O. No.FIN(C)-A(9)-6/75-2703, dated 21.10.75.
Sd/-
Under Secretary (PW) Government of Himachal Pradesh.
29. Once work-charged status has been conferred upon an employee by the Department,
- 28 - [2020:HHC:10518-DB] which is a limb of Government of Himachal Pradesh, then after doing so, the Department cannot take U-turn to deny the benefit of such status conferred upon the employee by the Department itself. Work-charged employee, in either of the Departments of Government of Himachal Pradesh, whether it is Public Works Department or Irrigation and Public Health Department or any other Department, like present one. constitutes same class, i.e. work-charged employee under the Government of Himachal Pradesh and when, as evident from the communication dated 25.11.1975, work-charged employees in Public Works Department, now bifurcated into Public Works Department and Irrigation & Public Health Department, are treated to be part of pensionary, establishments, the respondents-Department cannot deny such benefit to employees conferred work-charged status by the department itself. Therefore, it does not lie in the mouth of respondents that work-charged employees in Department of Rural Development are not to be treated as part of pensionary establishment. Such a discriminatory treatment to its similarly situated employees, forming identical class, is not expected from a democratic welfare State, being custodian or protector of Fundamental Rights of its citizens, as such any discrimination, on this count, would be violated of Article 14 of the Constitution of India.
31. In the light of aforesaid discussion, particularly pronouncements as well as communication dated 25.11.1975, referred supra, it is held that the period of service rendered by a person as work charged employee with any establishment of State of Himachal Pradesh is to be counted, as qualifying service for pensionary benefits, irrespective of the fact that the Department is having work charged establishment or not. In addition, in terms of pronouncement of Supreme Court in Sunder Singh's case. daily waged service of 5 years will be treated equal to one year of regular service for pension and if on that basis. service is more than
- 29 - [2020:HHC:10518-DB] 8 years but less than 10 years, the service will be reckoned as ten years."
Even the judgement in Beli Ram [supra] by Learned Single Judge, was assailed by State Authorities, in LPA No.151 of 2021 and the same was dismissed on 09.08.2023, by the Co-ordinate Division Bench of this Court.
The above contention of Learned State Counsel is misconceived for the reason, that firstly as per the communication dated 25.11.1975, issued by Finance Department all work charge employees including temporary industrial workers are to be treated to be part of pensionable establishment ; and secondly, in terms of this communication once the service rendered in work charge temporary capacity is countable for retiral benefits in Public Works Department therefore, similarly placed work charge employees, who have rendered service in temporary capacity in other Departments, including Irrigation & Public Health Departments are entitled to similar treatment; and thirdly, an artificial distinction cannot be permitted to be carved out by State Authorities,
- 30 - [2020:HHC:10518-DB] by extending benefit of work charge service rendered in temporary capacity for pensionable benefits in one Department but in denying it to similar or incumbents in the Irrigation and Public Health Department; and fourthly, this artificial distinction has no rationale with the object sought to be achieved; and fifthly, the artificial distinction sought to be carved out amongst one homogenous class of work charge incumbents who have rendered service in temporary capacity, without any rationale, amounts to treating 'equals as unequal', results in defeating the Constitutional mandate of Articles 14 and 16 also; and lastly, on facts of instant case, the service/deemed service of Late Shri Jagat Ram, the petitioner's husband as work charge in temporary capacity, is to be counted for pensionary benefits.
11. Plea of the State Authorities in Para 6(i) of the Reply-Affidavit on merits, that family pension is admissible to a person when, a government servant draws pension and after his death, family members becomes eligible for family pension.
- 31 - [2020:HHC:10518-DB] The above plea set up in Reply-Affidavit, only deals with the provision of Rule 54 (2) (6) of CCS [Pension] Rules, by ignoring the eligibility and entitlement of the petitioner for family pension under Rule 54 (2) (a) and 54 (14) of the said Rules, on account of the death of petitioner's husband during service, after completion of one year's continuous service. Thus, the stand of State Authorities, is not tenable and is therefore rejected. 11(i). The Bombay High Court, while dealing with similar fact situation, has granted family pension to the widow of deceased, upon completion of one year's continuous service, in Union of India (UOI) Vs. Smt. M.I. Solkar [Writ Petition No.7960 of 2003] [(2004) 02 BOM CK 0120 [(2004) 102 FLR 591] decided on 09.02.2004, in the following terms:-
"7. A conjoint reading of these Rules makes it clear that whereas the other retiring employees have to put in at least 10 years of service, in the case of a person suffering from invalidity, there is no such requirement under Rule 49(2)(c). It is also material to note that under Rule 54(2) when it comes to death of a government servant, it is provided in Sub-rule 2(a) that even where a government servant dies after completion of one year
- 32 - [2020:HHC:10518-DB] service, the family of the deceased is entitled to family pension as laid down in the Rules, Even where a person dies before completion of one year, Sub-rule 2(aa) provides that his family may as well receive family pension provided of course a fitness certificate had been issued by the medical authority immediately prior to his appointment to the service.
8. Mr. Karnik, learned counsel for the petitioner, submitted that there is no specific qualifying period of service provided for pension on validity. However, the concept of "qualifying service" as defined under Rule 3(q) provides that it means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules. As seen above, under Rule 49, which provides for amount of pension, Sub-rule (2) provides for three situations and as far as pension on invalidity is concerned, the Rule 49(2)(c) begins with the non-obstante clause and clearly provides that it shall not be less than the amount of family pension admissible under Rule 54(2). This being the position, since the deceased husband of the petitioner in the present case had suffered invalidity, may be before completion of 10 years of service, that cannot disentitle her from receiving the family pension. It is a welfare provision and it is a provision similar to a situation where a person dies after completion of one year service or even before that. These provisions are in consonance with the spirit of the directive principles of the Constitution and have to be read as such.
9. Mr. Walia, learned counsel for the respondent, referred to a judgment of a Single Judge of the Delhi High Court in the case of Ex. Coost. Badan Singh v. Union of India, reported in III 2003(1) All India Services Law Journal 329, where a similar
- 33 - [2020:HHC:10518-DB] view has been taken by a Single Judge of the Delhi High Court to grant invalid pension where the service rendered was less than ten years and the petitioner had suffered from Aids. The Administrative Tribunal was, therefore, right in interpreting the relevant provisions in that light and has correctly come to the conclusion that the Original Application had to be allowed. We therefore do not find any error in the approach of the Administrative Tribunal. Petition is dismissed."
11(ii). The Punjab and Haryana High Court, while dealing with similar fact-situation granted family pension to a widow for one year's continuous service rendered by her deceased husband, in Neeraj Yadav and another vs. State of Haryana and others [CWP No.8183 of 2009] decided on 12.10.2009 in the following terms:-
"It is noticed that having been
recommended for appointment on
18.9.2008, the petitioner was medically examined on 7.10.2008 and on the same date he joined the service. He died on 21.3.2009 and, thus, the petitioners are denied the compassionate assistance. Learned counsel for the petitioners would submit that the petitioners are entitled to the grant of family pension and the condition of completing one year continuous service can not be pressed in view of Rule 4 of Family Pension Rules. The counsel would refer to note under the Rules, as per which Family Pension can be granted before completion of one year continuous service, if the Government employee
- 34 - [2020:HHC:10518-DB] concerned immediately prior to recruitment to the service or post was examined by the appropriate medical authority and declared fit for the Government service. In support, he has also drawn my attention to the case of Smt.Savitri Devi Vs. the State of Haryana and others, 1996 (2) RSJ 854. The Division Bench of this Court has clearly held that even if the deceased government employee does not complete one year of continuous service, his dependent would nevertheless be entitled to the grant of family pension provided the deceased was medically examined and found fit and medical certificate of fitness was produced before entering into Government service. The right of the petitioner to make a claim for family pension, thus, is apparently covered by the ratio of law laid down in Smt. Savitri Devi's case (supra).
Learned counsel for the petitioner has drawn my attention to another Division Bench judgment passed by this Court in the case of Sharmila Devi Vs. Uttar Haryana Bijli Vitran Nigam Limited, 2002 (4) SCT 178. Similar view has been taken by the Division Bench of this Court so far as eligibility of completing qualifying service of one year for grant of family pension is concerned. It is held that even if the deceased Government employee does not complete one year continuous service, his dependent would still be entitled to grant of family pension provided he was found medically fit at the time of appointment. The Rule does not envisage any such condition of one year qualifying service. While taking this view, the ratio laid down in Savitri Devi's case (supra) has been followed. Taking the similar view, Civil Writ Petition No.3515 of CIVIL WRIT PETITION NO.8183 OF 2009 :{ 6 }: 2009 Mahender Kaur Vs. State of Haryana and others), was allowed by this Court on 5.10.2009.
- 35 - [2020:HHC:10518-DB] Following the ratio laid down in the above-noted cases, it is held that the petitioners would be entitled to the grant of family pension even when husband of petitioner No.1 had not completed one year continuous service as prior to his joining, her husband had appeared for medical examination and had been offered appointment only on having been found fit. Order Annexure P-2 would show that the petitioner was appointed after having been declared medically fit. Once the petitioners are held entitled to grant of family pension, they would be eligible for grant of compassionate financial assistance in terms of the Rules as they would be eligible under Rule 3, which reads as under:-
"Eligibility. 3. The eligibility to receive financial assistance, these rules shall be as per the provision in pension/ family pension scheme 1964."
The writ petition is accordingly allowed. Direction is issued to the respondent-State to grant compassionate financial assistance to the petitioners under the Rules. Needless to mention that the petitioners would also be entitled to the family pension though in terms of the Rules."
11(iii). While dealing with the claim for pension, the Hon'ble Supreme Court held in Union of India and others Vs. Meena Devi [CWP No.34 of 2014] decided on 23.07.2018 that it would be travesty of justice to deny family pension/retirement benefits simply on the ground, that deceased employee was not a permanent employee of the Department, in
- 36 - [2020:HHC:10518-DB] the following terms:-
"12. There is also on record a judgment, dated 3rd October, 2013, passed by the Division Bench of Punjab and Haryana High Court in CWP No. 10597-CAT of 202 [O&M], titled as Union of India and others Vs. B.N. Jaggi and others, which reads as under:-
"The respondent served the petitioner- Department w.e.f. 24.01.1963 till he was retired from service w.e.f. 10.09.1975. In this manner, he served the Department for 12 years, 7 months and 17 days. The question was whether the respondent is entitled to be paid pension for the above stated service ?
The Tribunal has relied upon a decision of the Hon'ble Supreme Court in SLP No. 6365 of 1988 [Yashwant Hari Katakkar Vs. Union of India & Ors.], decided on 19.09.1994 where the employee had served for 18 ½ years but denied pension on the ground that he was not a permanent employee. The Supreme Court held that it would be travesty of justice if the retiree was denied pensionary benefits simply on the ground that he was not a permanent employee of the Department even after serving for 18½ years.
It is not in dispute that in the instant case also, the respondent was denied pension only on the ground that he did not hold the post on permanent basis. The Tribunal has, thus, rightly relied upon the cited decision rendered in somewhat similar circumstances and accepted the claim of the respondent.
It is informed by learned counsel for the respondent that the order passed by the Tribunal has already been implemented even before filing of the writ petition and pension stands granted to him.
- 37 - [2020:HHC:10518-DB] For the reasons afore-stated and also keeping in view the fact that the respondent retired way back in the year 1975, we decline to interfere with the impugned order.
Dismissed.
Learned counsel for the respondent informs us that this judgment has attained finality."
CONCLUSION:
12. Pension including family pension is payable on the consideration of past service rendered by a government servant. The object, intent and purpose of pension/family pension is to provide sustenance in old-age and provide protection and to secure support in old-age which would have flown upon retirement of a companion in normal course but for unforeseen death during service or post-retirement also. Rule 54 (2) (a) (i) read with Rule 54 (14) of CCS [Pension] Rules, entitles an eligible member of family, including widow for family pension in case, deceased employee-Government servant dies after one year's continuous service in temporary capacity and in a pensionable establishment. An eligible family member, could only be disentitled for family pension,
- 38 - [2020:HHC:10518-DB] in case the deceased Government servant was under
suspension prior to death or such Government servant had rendered continuous service before attaining the age of eighteen years or was receiving family pension or was entitled for family pension under any other Rules of Central/State Government/PSU/Autonomous body/Local Body of Central/State Government [under Rules 54 (14) (a) read with Rule 54 (13-B) of the CCS [Pension] Rules. No other disqualification clause in CCS [Pension] has been shown, disentitling the petitioner-widow, for family pension despite the deceased granted service having rendered more than five years and three months of service [as work charge-temporary capacity]. In fact-situation of the instant case, once none of these disqualifications are applicable, then, petitioner, Satya Devi, being widow of late Shri Jagat Ram, who had died after having rendered more than five years three months service from 01.01.2002 till death on 17.03.2007, i.e. more than one year's continuous service is eligible and entitled for grant of family pension, on the basis
- 39 - [2020:HHC:10518-DB] of work charge service rendered in temporary capacity in a pensionable establishment, as per the mandate of Law in Sukru Ram and Matwar Singh, which were upheld in SLP's and were implemented also.
Further, the entitlement of the petitioner for family pension, could neither be taken away nor curtailed or restricted without any authority of law; when, the right to family pension comes within the ambit of property under Article 300-A of the Constitution of India and such a right could neither be curtailed nor taken away, or denied or deprived, without any authority of law. Further, no statutory provision [Act or Rules] has been brought to the notice of this Court, which disentitles, the present petitioner for family pension, in facts of this case. Moreover, once the petitioner's deceased husband has performed the same work job, functions, duties which was performed by other regular employees in all respects, coupled with the fact that the petitioner's husband had died as a daily wager and was accorded work charge status posthumously vide order dated
- 40 - [2020:HHC:10518-DB] 10.05.2016 [Annexure R-1] w.e.f. 01.01.2002 and in such an eventuality, the requirement of substantive appointment if any, did not apply due to untimely and belated action of State Authorities in extending this benefit then, the claim for family pension has merit. Moreover, the distinction between temporary and permanent employees for grant of pension, including family pension and other pecuniary benefits ceases to exist as per OM dated 28.03.1988 [Government of India decision No.2 under Rule 3 of CCS [Pension] Rules and therefore, the denial of family pension is uncalled for and is accordingly quashed and set-
aside. The claim by the petitioner's widow for family pension carries weight in view of the mandate of law, outlined in cases of Kalawati, Meena Devi, M.I. Solkar and Neeraj Yadav [supra].
13. Further, the stand taken by State Authorities is that the petitioner has not rendered ten years of regular service and the family pension cannot be granted. The above plea of Learned State Counsel cannot be permitted to operate so as to defeat the
- 41 - [2020:HHC:10518-DB] intent and object of Rule 54 (2) (a) read with Rule 54 (14) of CCS [Pension] Rules, which entitles an eligible family member for pension after one year's continuous service, whereas in facts of this case, the petitioner's husband late Shri Jagat Ram, had rendered more than 5 years and 3 months service. Thus, deprivation of family pension arbitrarily and without authority of law cannot sustain. Denial of family pension despite being eligible as per provisions of Rule 54 of CCS [Pension] Rules, without prior notice, without affording an opportunity of personal hearing is just to defeat the rights under the Rules, which cannot be permitted, resulting in malice in law in instant case. In addition, the claim for family pension became due and payable to the petitioner w.e.f. 17.03.2007 i.e. date of death of her deceased husband but these benefits have been denied till institution of OA No.4828 of 2016 [renumbered as CWPOA No. 267 of 2020], therefore, the petitioner herein is held entitled for family pension w.e.f. 17.03.2007 i.e. date of death of her Late husband,
- 42 - [2020:HHC:10518-DB] Shri Jagat Ram notionally but actual arrears shall accrue for three years preceding the filing of first petition OA No.4699 of 2015, In re; Satya Devi versus State of Himachal Pradesh and even in view of subsequent-present petition [OA No.4828 of 2016, re-numbered as CWPOA No 267 of 2020 on 21.09.2016] with fixation of family pension, from due date as revised and enhanced from time to time.
DIRECTIONS:
14. In view of the above discussion and for reasons recorded hereinabove, the instant petition, is allowed, in the following terms:-
(i) Petitioner, Satya Devi, is held entitled for Family Pension, upon death of her Late husband, Shri Jagat Ram w.e.f.
17.03.2007 with all consequential benefits;
(ii) Action of the State Authorities in denying Family Pension to the petitioner w.e.f. 17.03.2007; without any authority of law and dehors the intent; object of Rule 54 of CCS [Pension] Rules, as applicable in the instant case, is quashed and set- aside;
(iii) State Authorities are mandated to process the case and to ensure the sanction and release of Family Pension to the petitioner in accordance with Rule 54 of CCS [Pension] Rules and/or the law in Sukru Ram and Matwar Singh; and/or
- 43 - [2020:HHC:10518-DB] the communication dated 25.11.1975 {[OM dated 28.03.1988 Government of India decision No.2 under Rule 3 of CCS [Pension] Rules [supra]}; with all admissible monetary benefits notionally from due date [17.03.2007] and to release actual monetary benefits for three years preceding filing of the writ petition, OA No. 4699 of 2015 in accordance with law on or before 31st July, 2025;
(iv) Failure to release Family Pension and admissible benefits accruing therefrom shall mandate the Respondents to give interest at the rate of 7% per annum, beyond 31.07.2025 till realization; and
(v) Parties to bear their own costs. In aforesaid terms, the instant petition is allowed and pending miscellaneous application(s), if any, shall stand disposed of accordingly.
(Vivek Singh Thakur) Judge (Ranjan Sharma) Judge June 04, 2025 [Bhardwaj/tm]