The Commissioner, Corporation of Chennai vs V. Sumathi and V. Suresh Babu

Markandey Katju, C.J.—This writ appeal has been filed against the impugned order of the learned single Judge dated 19.3.2004 passed in

Writ Petition No. 18781 of 1996.

We have heard the learned counsel for the appellant and have perused the record and find no merit in this appeal.

The writ petitioner, since deceased, was a widow. Her husband late C. Venkataiah was appointed as temporary worker from 4.3.1978 and it is

alleged that he was made permanent on 26.2.1987 and was working as sanitary worker under the Corporation of Madras. He is missing from

24.12.1987, regarding which, the writ petitioner (his widow) has filed a complaint, but he is still missing. The writ petitioner claimed family pension

which has been granted by the learned single Judge who has allowed the writ petition.

Learned counsel for the appellant has invited our attention to Rule 49 (2-A) of the Tamil Nadu Pension Rules (hereinafter referred to as the

Rules"") which states as follows:

The family pension payable to a family of a Government servant or a retired Government servant who died on or after the 1st April 1979, shall be

regulated as under, provided he has completed continuous qualifying service for a period of not less than two years -

(i) the amount of monthly family pension shall be calculated at the uniform rate of 30 per cent of pay drawn, subject to a minimum of Rs.245 per

mensum and maximum of Rs.1000 per mensum.

(ii) In the case of death after retirement, the quantum of family pension as calculated above shall not exceed the uncommuted value of

superannuation pension. A flat rate of family pension shall be sanctioned to the eligible member of the family of the Government servant who died in

service after retirement and who were hitherto not eligible for family pension.

Explanation - The date of disappearance of the Government servant shall be reckoned from the date on which the complaint is lodged with the

police.

Learned counsel for the appellant submitted that the writ petitioner is not covered by the provisions of the Rule 49 (2-A) of the Rules. We do

not agree. In the counter affidavit filed by the appellant before the learned single Judge it is alleged in paragraph 2 as follows:

I submit that the husband of the petitioner was first appointed as substitute sanitary worker on 4.3.1978 and was appointed subsequently as

Sanitary worker on 26.2.1987 in the permanent vacancy. He disappeared from 24.12.1987 onwards. The group insurance scheme amount of

Rs.20,000/- and S.P.F.G. were already settled.

Learned counsel for the appellant submitted that the writ petitioner''s husband was only appointed as a substitute sanitary worker on 4.3.1978

and hence he cannot be regarded as having been appointed in a temporary capacity under Rule 11 of the Rules. Rule 11(1) states:

Commencement of qualifying service -

(1) Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post

to which he is first appointed either substantively or in an officiating or temporary capacity. In the case of a Government servant retiring on or after

the 1st October, 1969, temporary or officiating service in a pensionable post whether rendered in a regular capacity or not shall count in full as

qualifying service even it is not followed by confirmation.

In our opinion, there is no merit in the submission of the learned counsel for the appellant. It must be understood that employees are of two

categories, permanent and temporary. The general category of temporary employee has under it several sub categories e.g. daily wage employee,

casual employee, ad hoc employee, substitute employee (such as the writ petitioner''s husband) etc. A substitute appointee who is appointed on

leave vacancy is a temporary appointee. All appointees who are not permanent appointees are temporary appointees. Hence even if the husband

of the writ petitioner was a substitute appointee he was certainly a temporary appointee and hence covered by Rule 11 of the Rules. Learned

counsel for the appellant then submitted that the husband of the writ petitioner did not work continuously from 1978 to 1987 and there was break

in his service. There is no such allegation in the counter affidavit and hence we cannot accept this submission merely on the oral argument of

learned counsel for the appellant since there is no material on record in support of such argument. We have already quoted paragraph 2 of the

counter affidavit which indicates that the writ petitioner''s husband worked continuously from 1978 to 1987. Thus he has certainly completed more

than two continuous years of service. As such we are of the opinion that the writ petitioner is entitled to family pension under Rule 49(2-A) of the

Rules as her husband must be presumed to be dead vide Section 108 of the Evidence Act. There is no force in the appeal and it is dismissed. No

costs. However, as prayed for by the learned counsel for the appellant, one month time is allowed to the appellant to comply with this judgment

and the judgment of the learned single Judge. W.A.M.P. No. 1544 of 2005 is dismissed.