Smt. Khasti Devi vs State of Uttarakhand and others

SHARAD KUMAR SHARMA, J.

Delay Condonation Application (CLMA No. 7985 of 2018) filed in support of Short Counter Affidavit has sufficiently explained the delay.

Accordingly, the Application for condonation of delay is allowed. Delay thus chanced will stand condoned. Short Counter Affidavit filed on behalf of

the respondents is taken on record and with the consent of the parties, the writ petition is being heard finally today itself because the matter pertains to

the grant of family pension.

2 The petitioner is a widow of late Mr. Dan Singh. Her case is that her husband was appointed as Beldar with the respondents on daily wage basis as

back as in the year 1975. Later on, he was taken into the work-charged establishment w.e.f. 01.01.1989. Taking into consideration the satisfactory

services rendered by him he was regularized into the services on 24.08.1999, till he attained the age of superannuation on 24.08.2009 after retirement.

It is the case of the petitioner that she had been consistently requesting respondents for the grant of payment of family pension after taking into

consideration the period of services rendered by her late husband in a work-charged establishment. Though, the late husband of the petitioner did

retired on 24.08.2009 and had met with the sad demise on 10.09.2014, there may be a case of the respondents who may contend that the claim is

belated, but looking to the fact that the grant of the pensionary benefits which otherwise now in view of the judgment of this Court dated 26.04.2018 it

has been held to be payable and as a consequence there to after providing continuity in service, after including the period of service discharged in a

work-charged establishment, the action for the petitioner to institute a writ petition for the grant of family pension would be recurring in nature. As

such even if the late husband of the petitioner has died on 20.09.2014 or he has retired on 24.08.2009 will have no bearing on the payment of family

pension, reason being entitlement of family pension to the widow would accrue only after husband died which was on 20.09.2014.

It has already been laid down by this Court and subsequently affirmed by the Hon’ble Apex Court that the services rendered by an employee

under the work-charged establishment is to be taken into consideration for the purposes of post retrial dues.

Para nos. 3, 4, 16d and 16e of the amended writ petition where the petitioner seeks the parity of judgment by Hon’ble Apex Court in Habib

Khan’s case and by Division Bench in bunch of Special Appeals on 26.04.2018, averments have been made in following paras, which reads as

follows:

“3. That the petitioner in accordance to the order passed by this Hon’ble court preferred a fresh representation mentioning there in that since

1975 husband of the petitioner continue worked as Beldar and in the year 1989 he has given the work charge establishment and after calculating his

work charge service he had worked more than 20 year. The petitioner further submitted that the Hon’ble Court and supreme court in the case of

similarly situated person already directed that work chage service followed by the regularization will count for pensionary benefit, as such petitioner

request for family pension to the petitioner.

That the respondent authority on 27/02/2018 in an illegal and arbitrary manner and in violation of Apex Court as well High Court judgment, illegally

held that the petitioner husband has only completed 9 year 4 month 4 days regular service and did not completed 10 year regular service as such he is

not entitled for family pension.

16d That the Hon’ble supreme court in the case of Habib Khan vs. state of Uttarakhand and others confirm the finding of Uttarakhand high court

and held that period of service render as work charge will be treated as qualifying service for pension and shall count for the purpose of pensionary

benefit, the Hon’bleApex Court further observe that the rule 370 ii of the UP Civil Service Regulation Rule is voilatery of article 14 of Constitution

of India. The Hon’ble High Court of Uttarakhand in writ petition no. 1142 of 2016 s/s Bharma Pal Singh vs. State and other petition already struck

out the 370 ii of UP Civil Service Regulation Rule. A copy of Apex Court judgment passed in Habib Khan vs. State of Uttarakhand is being annexed

herewith and marked as Annexure no. 9 to the writ petition.

16e. That the case of the petitioner is squarely covered by the judgment passed by the Hon’ble Apex Court in case of Habib Khan vs. State of

Uttarakhand and petitioner is entitled for family pension after counting the service render by her husband as work charge establishment.â€​

The learned counsel for the petitioner submits that the controversy in this Writ Petition is squarely covered by the judgment of Habib Khan, which

has been subsequently followed by the Division Bench in its judgment rendered in a bunch of Special Appeals with leading Special Appeal being

Special Appeal No. 494/2017 ‘State of Uttarakhand & Another vs. Brahm Pal Singh’ as decided on 26.04.2018. By virtue of this judgment the

State’s Appeal against the judgment of learned Single Judge dated 05.06.2017 directing to include the service rendered in work charge

establishment for the purposes of pension, retiral dues and other service benefits has been affirmed, and State’s Special Appeal has been

dismissed on 26.04.2018. This specific contention about the controversy being similar in nature to that of Habib khan’s case and the decision in

Special Appeals rendered on 26.04.2018 has already quoted above.

The reason which has been assigned by the respondent no. 2 while rejecting the claim of the petitioner for the grant of retrial dues including the

family pension is that the petitioner’s husband had not completed the requisite period of services as required for determination of the post retrial

dues. The reason which has been assigned by the respondent no. 2 is that though the late husband of the petitioner has been brought under the work

charge establishment and his services were regularized w.e.f 24th August, 1999 hence if the period of service is calculated from 24th August, 1999 till

he attained the age of superannuation on 2nd January, 2014, he had completed only 9 years, 4 months and 4 days of period which is less than the

minimum period required i.e. 10 years. This view expressed by the impugned order has been recently dealt with by the Hon’ble Apex Court in

Habib Khan’s case

as decided by his Lordship on 23rd August, 2017 whereby it has been held that the period of service rendered in the work charge establishment has to

be included together for the purposes of calculating the post retrial dues.

In the instant case, the late husband of the petitioner was taken into work charge establishment on 1st January, 1989 and thereafter he retired on

2nd January, 2014, hence for the purposes of retrial dues, his service benefit has to be calculated from 1st January, 1989.

In that view of the matter, the impugned order dated 27th February, 2018 passed by respondent no. 2 cannot be sustained and the same is quashed.

A writ of mandamus is issued to the respondents to forthwith pay to the petitioner family pension after including in it the services rendered by the late

husband of the petitioner in the work charge establishment in the light of the judgment rendered in the Habib Khan’s case as decided by the

Hon’ble Apex Court on 23rd August, 2017 as well as by the Division Bench of this Court in bunch Special Appeals as decided on 26.04.2018

being leading Special Appeal No. 494/2017 ‘State of Uttarakhand & Another vs. Brahm Pal Singh’, the payment of family pension would be

commenced by the respondents forthwith, but under no condition beyond the period of one month from the date of service of certified copy of this

order and pay the entire arrears of family pension with interest to be calculated @ 7 per cent from the date of retirement i.e. 2nd January, 2014, the

respondents would ensure compliance of the above mandamus positively within two months from today, however payment of family pension would

start forthwith. Subject to above direction, the writ petition would stand allowed.

However, there would be no order as to costs.