Hukmi Devi vs State of Haryana

Mehtab S. Gill, J.—The petitioner has filed this petition in the nature of certiorari for quashing para 4 (ii) of the Family Pension Scheme, 1964 (as applicable to Haryana State) being ultra-vires to the extent, it excludes parents of a deceased government employee from the definition of "family", for grant of family pension.

The petitioner has averred that her son Basant Kumar was employed as a Peon in the Court of Sub Judge, Karnal with effect from November 13, 1995. He was a regular employee. He expired on February 4, 2000 while in service. His dead body was found in Karnal Tal Park at Karnal. A copy of the death certificate dated February 24, 2000 is annexed with the petition as Annexure P-1.

The petitioner''s husband, who was an advocate, died in the year 1995. She had two sons and a daughter. After the death of Basant Kumar, the petitioner being dependent upon her son, was sanctioned Death-cum-Retirement Gratuity amounting to Rs. 22,854/-.

The petitioner had been requesting the competent authorities in the District Courts, Karnal for release of family pension to her, as she was totally dependent upon her son. Her husband had also passed away before the death of her son. A detailed representation dated May 18, 2001 (Annexure P-2) was made to the District Judge, Karnal for grant of family pension.

The services of petitioner''s son Basant Kumar are governed by the Family Pension Scheme, 1964 (For short "the Pension Scheme"). Para 4 of the Pension Scheme is reproduced as under:-

"4. 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 I xx xx xx

Note II xx xx xx

(iii) Family for purpose of this Scheme includes the following relatives of the officer:-

(a) wife, in the case of a male officer;

(b) husband, in the case of a female officer;

(c) minor sons; and

(d) unmarried minor daughters.

Note 1 (c) and (d) include children adopted legally before retirement.

Note 2 Marriage after retirement is not recognised for purposes of this scheme.

Note 3-A A judicially separated wife/husband does not lose her/his legal status of wife/husband of the Government employee and is thus eligible for the benefit of the Family Pension Scheme, 1964."

In this scheme, the parents of the deceased have been left out.

The petitioner has further averred that the family pension has been given to one Yashoda Devi, wife of Shri Kotu Ram, mother of deceased krishan Lal Gulati, resident of House No. G-504, Mohalla Mirsaidan, Banson Gate, Karnal vide PPO No. 21418/F/HR on August 18, 1998 (Annexure P-3).

Notice of motion was issued.

Written statement was filed.

Learned counsel for the respondents has stated, that as the rule does not provide any family pension for the parents, thus, the family pension could not have been released to the petitioner.

Learned counsel for the respondents has placed reliance on a judgment of the Hon''ble Apex Court rendered in the case of State of Gujarat through Chief Secretary and Ors. v. Sarti Devi, 1996(1) S.L.R. 628, wherein the Hon''ble Apex Court has held that mother, not being a family member, was not entitled to family pension. Further, in para 7 of the judgment, it has been stated that the mother was not included as member of the family to claim any family pension from the Government, as in the definition of "family", mother has not been included. Further, the definition of "family" has been given in para 5 of the judgment.

I have heard the learned counsel for the petitioner, the learned counsel for the respondents and perused the petition and relevant rules.

In the judgment State of Gujarat through Chief Secretary and Ors. v. Sarti Devi (supra), vires of "family" were not challenged. As the vires were not challenged and mother was not included in the family, thus, family pension was not awarded to the mother. In the instant petition, the vires of a family, as given in the Scheme, have been challenged. This is the distinguishing feature between the judgment (supra) and this petition.

Learned counsel for the petitioner has placed reliance on the judgments of this Court rendered in the cases State of Punjab and Anr. v. Kharak Singh Kang and Anr., 1998 (4) S.L.R. 594, Lichhami Devi v. State of Haryana, 2001 (4) S.C.T. 642 and Phool Pati v. Haryana State Electricity Board (Operation) now re-designated as Dakshin Haryana vidyut Parsaran Nigam, Limited, 2002 (3) S.C.T. 266.

In Kharak Singh Kang''s case (supra), a Division Bench of this Court has held that parents are family members. They can not be excluded from the definition of "family". Further, the Division Bench has struck down Rule 6.17 of the Punjab Civil Services Rules, Volume II so far as it excludes the parents from the definition of family. It has been further held that parents are entitled to benefit as members of family of the deceased.

In Lichhami Devi''s case (supra), a Single Bench of this Court has held that parents are entitled for family pension. The rules of exclusion of parents of deceased government employee from the concept of family has no rationale and is totally arbitrary. Parents cannot be excluded from or denied the benefit of family pension.

In Phool Pati''s case (supra), this Court has held that exclusion of parents from the definition of family is unconstitutional.

The judgments, cited by the learned counsel for the petitioner, squarely cover the case of the petitioner. Clause (ii) of para 4 of the Scheme, where the definition of the family is given, is struck down to this extent that parents cannot be excluded from the definition of family.

With the above observations, petition is allowed. Respondents are directed to pay to the petitioner family pension from the date of death of her son, i.e., February 4, 2000. This direction should be complied with within a period of three months from the date of receiving of a copy of this order.