Khimiya Bai vs The State of Madhya Pradesh

K.K. Trivedi, J.—The petitioner is aggrieved by order dated 13.8.2009 by which it is communicated that the petitioner would not be entitled to the family pension as the husband of the petitioner was serving as a work charged contingency employee.

It is contended that the issue is squarely covered by a decision rendered by this Court in W.P. No. 13653/2009 (s) decided on 11.1.2010 and, therefore, the similar directions may be issued.

On perusal of the order passed by this Court in W.P. No. 13653/2009 (s) - Smt. Rambai Rajak vs. State of M.P. and others it is clear that the decision rendered by this Court in Bal Kishan Patel v. State of M.P. and others (WP No. 4357/2004) was taken note of. It was held that in terms of the provisions of M.P. Civil Services (Pension) Rules, 1979, which are made applicable for the work charged contingency employees, the petitioner in the said case would be entitled to grant of family pension. The decision in the said case reads thus:-

"14. It is apparent that for the purpose of family pension Rule 4-A of the Pension Rules of 1979 read with Rule 47 of the Rules of 1976 makes it clear that if an incumbent has rendered not less than 7 years continuous service, family of the incumbent is entitled for the family pension. It is not in dispute that deceased Jabmohan Singh Gond had rendered the continuous service for more than 7 years. Rule 6(3) of the Pension Rules of 1979 clearly provides that without interruption for not less than 6years such services shall be counted for pension as if such services has rendered on on regular post, qualifying service has to be given effect to while considering the length of the service, as specified in Rule 2(c) of the Rules of 1979 otherwise the purpose of fiction created of Rule 6(3) stands defeated. Thus the submission raised by the respondents that as per Rule 6(3), services cannot be computed towards qualifying service, cannot be accepted. The services which have been rendered, as qualifying service, under Rule 6(3) of the Pension Rules of 1979 has to be counted, as rendered on a regular post. Thereafter entitlement has to be determined by the respondents in accordance with law."

In the case at hand the petitioner''s husband was engaged on daily-wage basis in the Work-charged establishment of Rani Awantibai Sagar Project. Thereafter, by order dated 29.6.1996 was brought on regular Work-charged establishment in grade 825-900-20-1220 as Time Keeper. The late husband of the petitioner while in service expired on 12.2.2001. The petitioner after death of her husband approached the authorities for grant of family pension. The said request was turned down by letter dated 13.9.2006 on the ground that petitioner''s husband since has not rendered 10 years of service in the Work-charged establishment she was not entitled for the family pension. It is this denial which has forced the petitioner to prefer the instant writ petition.

A "Work-charged employee" is defined under Rule 2(b) to mean ''a person employed upon the actual execution, as distinct from general supervision of a specified work or upon subordinate supervision of the departmental labour, store, running and repairs of electrical work, excluding the daily paid labour and muster-roll employee employed on the work''.

Whereas, "permanent employee" as defined under clause (c) of Rule 2 of Rule 1979 means "a contingency paid employee or a work-charged employee has completed fifteen years of service or more on or after the 1st January, 1974:

Provided that in respect of a contingency paid employee or a work charged employee who has attained the age of superannuation on or after the First April, 1981, permanent employee means an employee who has completed 10 years of service on or after 1st January, 1974.

Rule 4A which was inserted vide notification dated 13.9.1982, pub. In M.P. Rajpatra. Pt. IV (ga), dated 26.12.1982, page 133; stipulates:

"4A. Notwithstanding 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 the Madhya Pradesh Civil Services (Pension) Rules, 1976 except sub-rule (3) of the said rule."

Admittedly the aforesaid provisions have an overriding effect over Rule 4 wherein the stipulations have been laid down as to the minimum qualifying service which a person engaged on work-charged establishment should have at his credit, i.e., 10 years, before he is held entitled for grant of pension on his retirement. In other words the bar as created under Rule 4, in the considered opinion of this Court will not be attracted in case a member of a regular Work-charged establishment dies in harness; meaning thereby that even a day''s service rendered by a workman brought on regular work-charged establishment in case if he dies thereafter would entitle the family of such workman for a family pension as per stipulations contained in Section 4A. The only guiding factor while applying Rule 4A of Rules of 1979 would be the conditions stipulated in Rule 47 of M.P. Civil Services (Pension) Rules, 1979, Sub-rule (2) of Rule 47 of the Rules, 1976 stipulates:

(2) without prejudice to the provisions contained in sub-rule (3), where a Government servant dies-

(a) While in service provided he had been medically examined and found fit for appointment under the Government.

(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, on the date of death.

The family of the deceased shall be entitled to contributory family pension (hereinafter in this rule referred to as Family Pension) the amount of which shall be determined as follows:

In the present case, the claim of the petitioner was rejected only on the ground that husband of the petitioner was not entitled to grant of pension under the provisions of Rules as referred to hereinabove. However, it has already been held that even if the employee concerned has not completed the requisite years of service in the work charged contingency establishment, the family would be entitled to grant of family pension in terms of the specific provisions made in that respect under Rule 47 of the Pension Rules applicable to the State Government employees. That being so, the rejection of the claim of the petitioner by the impugned order is not sustainable.

In view of the aforesaid, the writ petition is allowed. The order impugned dated 13.8.2009 is hereby quashed with the direction to the respondents to fix the family pension of the petitioner within a period of two months from the date of communication of the order passed today and to pay arrears of pension to the petitioner with interest @ 6% per annum from the date of entitlement till the date of payment.

The writ petition stands allowed. However, there shall be no order as to costs.