State of Haryana
& Ors. Vs. Shakuntla Devi  INSC 1840 (24 October 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6271 OF 2008 (Arising
out of SLP (C) No.1502 of 2006) State of Haryana & Ors. ... Appellants
Versus Shakuntla Devi ... Respondent WITH
CIVIL APPEAL NOS. 6272 & 6273 OF 2008 (Arising out of SLP (C) No.2759/06
S.B. Sinha, J.
the respondents being dependents of the deceased ad hoc appointees are entitled
to grant of `family pension' in terms of the provisions of Punjab Civil
Services Rules (for short, `the Rules') and 2 Family Pension Scheme, 1964 (For
short, `the 1964 Scheme) is the question involved in these appeals, which arise
out of judgments and orders dated 4.5.2005 and 24.4.2007 passed by the High
Court of Punjab and Haryana at Chandigarh in CWP Nos.8401 of 2003, 1858 of 2004
and 13112 of 2006.
Shakuntla Devi is the widow of Late Balwant Singh Driver; Respondent Rama Devi is
the widow of Late Karan Singh; and Respondent Sohni Devi is the widow of Late
of them were appointed on ad hoc basis for a period of six months on diverse
Their offers of
appointment containing the terms and conditions thereof, read as under :
(a) Offer of
Appointment of Late Karan Singh "The following applicants are appointed as
J.B.T. on the basis of six months, on pay of Rs.125/- and prescribed allowances
total grade of Rs.125/250 in the Schools mentioned against each. They are
directed to submit their joining reports to the concerned Head Master/Head
Mistress, Block Education Officer by 11.7.73 (F.N.). If he fails to join by
this date, other applicants will be appointed in their place.
The service is
temporary and liable to be removed from service at any time without any notice.
3 Name of applicant
& Registration Place of Remarks address No. Appointment Sh. Karan Singh s/o
2879/73 Govt. Nil Deep Chand, Village Secondary Manpur, The. Nuh, School,
Gurgaon Kondal Endst. No. even."
(b) Offer of
Appointment o Late Balwant Singh "Sub. Ad hoc appointment of Drivers.
recommendations of the State Employment Exchange, Haryana, you are hereby
offered a post of temporary Driver in the Pay scale of Rs.1200-
30-1500-EB-40-2040 plus usual allowances as sanctioned by the Haryana
Government from time to time for a period of six months or till such a
recommendee of Subordinate Services Selection Board, Haryana reports for duty,
whichever event is earlier.
2. Your appointment
is temporary and your services can be terminated without assigning any reason
and without any notice of discharge."
(c) Offer of
appointment of Late Dharam Pal "Subject - Appointment on ad hoc basis The
Director of Industrial Training & Vocational Education Haryana is pleased
to appoint you to the post of Clerk in the grade of 400-104-
90/540-15-600-EB-20-660 plus allowance as admissible under rule purely on ad
hoc basis for a period of six months, or till a regular candidate duly
recommended by the Subordinate Services Selection Board, Haryana joins, which
ever is 4 earlier, on the terms and conditions mentioned below :- i) that your
services are liable to be terminated at any time without notice and without
assigning any reasons.
ii) That conditions
of your ad hoc services will be governed by the rules and instructions issued
by the Haryana Government from time to time......."
aforementioned offers of appointment, thus, categorically go to show that the
same were ad hoc in nature. Appointments were made for a period of six months
only. The services of the appointees were liable to be terminated without any
notice or without assigning any reason.
servants may be appointed by the State for satisfying the needs of a particular
contingency. Conditions of service of the temporary servants may be regulated
either by laying down the conditions therefor in the offer of appointment
and/or the rules operating in the field.
If an appointment, it
is trite, is made to a temporary post, there can be no permanent appointment
therein. He would be deemed to be in temporary service only. Even where a
temporary post is made permanent, the same by itself does not render the
employment permanent and, thus, temporary employee continues to remain on
temporary service. Until a declaration is made under the relevant rules, he
cannot be deemed to be in a quasi 5 permanent service or absorbed permanently
in Government service. [See Arundhati Ajit Pargaonkar v. State of Maharashtra
& Ors. [AIR 1995 SC 962].
legal position in relation to termination of services of temporary employees
is, thus, to a substantial extent, similar to that of a probationer, as such an
employee has no right to the post except in cases where the same is arbitrary
however, despite expiry of a period of six months from the date of their
respective dates of appointment, they were allowed to continue in service. It
is furthermore not disputed that neither their status had been changed nor
their services had been regularized. In fact, so far as the case of Balwant
Singh is concerned, his prayer for regularization of his services was
specifically rejected by the State.
better appreciation of the factual matrix of the matter, the respective dates
of appointment of the husbands of the respondents, dates of their death, dates
of making demand/legal notice for benefit of family pension, dates of rejection
of such prayers and the dates of filing of the writ petition may be noticed,
which are as under :
6 Name Date of Date
of Date of Date of Date of appointmen Death making Rejection filing the t
demand/ of such writ legal notice prayer petition for Family Pension Balwant
5.1.1990 11.12.1994 15.5.2003 6.10.2003 13.12.2003 Singh Karan 3.7.1973
13.12.1977 01.10.2001 28.5.2002 26.5.2003 Singh Dharam Pal 24.3.1987 13.7.1989
-- 17.11.198 11.5.2006 9
matter relating to grant of family pension is covered by the Punjab Civil
Services Rules Volume II Part I (for short, `the Rules'). In terms of the
Rules, Family Pension Scheme, 1964 was framed.
The Rules which are
relevant for this case, are as under :
"2.4. In the
following cases no claim to pension is admitted:- (a) When a Government
employee is appointed for a limited time only, or for a specified duty, on the
completion of which he is to be discharged.
(b) When a person is
employed temporarily on monthly wages without specified limit of time or duty;
but a month's notice of discharge should be given to such a person and his
wages must be paid for any period by which such notice falls short of a month.
(c) When a person's
whole-time is not retained for the public service, but he is merely paid for
work done, such as Government Pleaders and Law Officers not debarred from
(d) When a public
servant holds some other pensionable office, he earns no pension in respect of
an office of the kind mentioned in clause (c) or in respect of duties paid for
by a compensatory allowances.
(e) When a Government
employee serves under an agreement which contains no stipulation regarding
pension, unless the competent authority specially authorizes him to count such
service towards pension.
Note:- The agreements
should be so worded as to preserve the inviolate and indefeasible right of
Government to modify the rules from time to time, at their discretion, so that
no claim may arise to the benefit of the rules as they stood at the date when
the agreement was executed.
3.12 The service of a
Government employee does not qualify for pension unless it conforms to the
following three conditions :- First - The service must be under Government.
Second - The
employment must be substantive and permanent Third - The service must be paid
conditions are fully explained in the following rules.
8 Note.- The
question whether service in a particular office or department qualifies for pension
or not is determined by rules which were in force at the time such service was
rendered; orders subsequently issued declaring the service to be
non-qualifying, are not applicable with retrospective effect.
XXX XXX XXX 3.17. In
the case of an officer retiring on or after 5th January, 1961, if he was
holding substantively a permanent post on the date of his retirement, his
temporary or officiating service under the State Government, followed without
interruption by confirmation in the same or another post, shall count in full
as qualifying service except in respect of :- (i) Period of temporary or
officiating service in non-pensionable establishment.
(iii) Period of
service paid from contingencies."
Rule 6.16A(2)(b) of
the Rules (as applicable to Haryana) reads as under :
: The family of a pensionable employee who dies before completing five years of
qualifying service shall also be eligible for the gratuity equal to six months
employments of a Government employee at the time of his death except in cases
in which death occurs in the first year of service where the gratuity
admissible shall be equal to two months emoluments."
9 Rule 12.2 of the
C.S.R. Vol.I, Part I is reproduced hereunder :
Rule 12.2 : A service
book in the form prescribed by the Comptroller and Auditor-General in Article
188 of Audit Code (reproduced in Part 11 of Appendix 11) must be maintained for
every employee at the time of First Entry into Government service has to get
himself medically examined. The only exception provided is under Rule 3.3.(3)
of C.S.R. Vol.No.1, Part I there is no requirement of medical certificate for
those employees who are appointed on six months basis."
1964 Scheme was formulated to afford further reliefs stipulated therein to the
family of the deceased employees. The said scheme came into force with effect
from 1st July, 1964 and was applicable to all regular employees on pensionable
Para 4 and Note 1 of
the 1964 Scheme read 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 10 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 1.- The term one
year continuous service used in para-4(i) above is inclusive of
permanent/temporary service in a pensionable establishment but does not include
periods of extraordinary leaves, boy service and suspension period unless that
is regularized by the competent authority or before completion of one year
continuous service provided the deceased Government employee concerned
immediately prior to his recruitment to the service or post was examined by the
appropriate Medical Authority and declared fit by that authority for Government
High Court delivered the main judgment in Rama Devi's case.
It noticed the
relevant dates, the terms of appointment as also the relevant rules. It, in its
judgment, took into consideration the decision of this Court in S.K. Mastan
Bee. v. The General Manager, South Central Railway & Anr. [(2003) 1 SCC
184] as also the decisions of the High Court of Punjab and Haryana including
the decision of Kanta Devi v. State of Haryana [2000 (2) SCT 32]. The High
Court opined that having regard to the paragraph 4 of the Scheme (wrongly
stated to be Rule 4) as also Note 1 appended thereto, any employee who has
completed more than one year's 11 service would become eligible for grant of
family pension. In arriving at the said decision, it furthermore took into
consideration the fact that for the said purpose, it was not necessary that the
concerned employees should have been appointed on a permanent or a temporary
Patwalia, learned senior counsel appearing on behalf of the appellant, would
submit that the High Court committed a serious error in arriving at the said
finding insofar as it failed to take into consideration the import and purport
of the rules vis-`-vis the scheme. It was contended that in terms of Rule 3.12,
for becoming eligible for grant of family pension, it was necessary that the
employment was to be substantive and permanent in nature as explained in Rule
3.17, which means that the employee should be holding substantively a permanent
post on the date of his retirement, temporary or officiating service under the
State Government, followed without interruption by confirmation in the same or
another post and in view of the fact that the employees were not appointed on a
substantive basis, the claim for grant of family pension could not have been
allowed. It was furthermore urged that in any event as the concerned employees
were appointed for a limited period as envisaged under clause (a) of Rule 2.4,
the impugned judgments cannot be sustained.
Shikha Roy, Pabbi and Mr. Prem Malhotra, learned counsel appearing on behalf of
Shankuntla Devi and Rama Devi, on the other hand, would contend that for the
purpose of grant of family pension in terms of the scheme, it was not essential
that the appointees should have been regularized in their respective services..
Drawing our attention to the terms of appointment, it was contended that as the
employees were appointed on temporary basis and they having been in service
admittedly for a period of more than one year, payment of family pension was
What was only
necessary, according to the learned counsel, was one year's service without
break as would appear from paragraph 4 of the Scheme read with note thereto. It
was urged that Rule 3.17 of the Rules would apply only in a case of retirement
and not in a case of death. It was furthermore contended that as the service
records of the concerned employees were being maintained and they have been
asked to file medical certificate(s) at the time of appointment, they were in
effect and substance appointed against a permanent vacancy on a temporary basis
and not on an ad hoc basis for a period of six months as contended by the
appellant The Rules, as applicable to the State of Haryana, were framed in
terms of the `Proviso' appended to Article 309 of the Constitution of India.
13 Volume I, Part I
of the said Rules provides for the main rules whereas Part II thereof contains
appendices and forms. Volume II of the Rules relate to `Pension and Provident
Fund'. The said Rules having been framed under `Proviso' to Article 309 of the
Constitution of India evidently apply to the Government employees. The
Government employees having regard to the said Constitutional provision enjoy a
`status'. Their appointment must be made in terms of appropriate recruitment
rules and upon compliance of the equality clauses contained in Articles 14 and
16 of the Constitution of India.
provisions contained in Volume II of the Rules apply to those Government
employees to whom the Rules in Volume I thereof apply. Rule 1.2 read as under :
"1.2. Except as
otherwise provided in rule 1.4 Infra or in any other rule or rules, these rules
shall apply to all Government employees belonging to the categories mentioned
below, who are under the administrative control of the Haryana Government and
whose pay is debitable to the Consolidated Fund of the State of Haryana :- (1)
Members of State Services, Classes I and II;
(2) Members of State
Services, Class III;
(3) Members of State Services,
(4) Holders of
Special Posts; and 14 (5) Any other Government employee or lass of Government
employees to whom the competent authority may, by general or special order,
make them applicable."
may, therefore, at the outset, notice the definitions contained in the Rules.
It is trite that each
Government employee should be borne in their respective cadre, `Cadre' having
been defined to mean the strength of a service or a part of service sanctioned
as a separate unit.
`Active service' has
been defined in Rule 2.3 to mean:
Service, for the purpose of pension, includes besides time spent on duty in
India :- (i) Leave of all kinds except extraordinary leave not counting towards
increment under rule 4.9(b)(ii);
(ii) Time spent on
the voyage to India by a Government employee who is recalled to duty before the
expiry of any recognized leave out of India : provides his return to duty is
(iii) The period of
absence from India of a Government employee deputed or detained out of India on
terms of Rule 1.3 of Volume II of the Rules, the terms defined in Chapter II of
Volume I of the rules have, unless there is anything repugnant 15 in the
subject or context, the same meaning and implications ,when used in Chapter II
2.1 states that every pension shall be held to have been granted subject to the
conditions contained in Chapter VII of the rules. Clause 2.6 provides for
claims of widows or heirs, stating:
"If a Government
employee dies before actually retiring or being discharged, his heirs have no
claim to anything in respect of his pension except as provided in rules 6.16-A
3.12 occurring in Chapter III provides for `Conditions of Qualifications' which
are; firstly, the service must be under Government;
employment must be substantive and permanent; and thirdly, the service must be
paid by the Government.
second qualification, namely, what would be meant by substantive and permanent
employment has been explained in Rule 3.17 which, as noticed hereinbefore,
means that the employee must be holding substantively a permanent post on the
date of his retirement, his temporary or officiating service under the State
Pension Scheme was formulated to afford further relief to the family of the
deceased Government employees, i.e. something more than what was contemplated
in the Rules. The same, however, would not mean that the dependents of those
employees who were otherwise not eligible in terms of the Rules would get the
benefit thereunder. In other words, the eligibility clause must be satisfied so
as to enable the dependent of a Government employee to obtain the said benefit.
The 1964 Scheme is
subject to Part II of the Rules. Rules contained in Part II are subject to Part
I, which in turn would be subject to the constitutional provisions. Thus,
before a person can be said to have been acquired a right to obtain the
benefits of 1964 Family Pension Scheme must satisfy the eligibility as
envisaged under the Rules. Family pension can be granted to the dependent of
the deceased Government employee under the Family Pension Scheme only by way of
a further relief and not by independent of the main Pension Rules. In other
words, if a person was not a Government employee, the question of his dependent
becoming entitled to the benefits of family pension scheme would not arise.
primary question, therefore, is who would be a Government employee within the
meaning of the said scheme.
17 We will advert to
this a little later. The second question would be, can the scheme be read
independent of the Rules.
Answer thereto must
be rendered in the negative. We say so because in terms of the Rules, the
following conditions precedent must be fulfilled before the benefit of family
pension can be extended:
1. The employee must
be a Government employee.
2. He must be
employed in a pensionable establishment.
3. He must have
become eligible to derive the benefit thereof.
II of Volume II of the Rules provides for different provisions relating to
grant of pension. The distinction between a pensionable establishment and a
provident fund establishment must, therefore, be borne in mind. Pension
although is not a bounty, the entitlement thereto is only under a statute. Only
when the conditions precedent provided for in the statute are fulfilled, an
employee would be entitled thereto.
would begin our discussions with the status of an employee. A Government
employee enjoying a status indisputably must be recruited in accordance with
Rules. The offers of appointment made in favour of the employees in no
uncertain terms show that they were appointed on an ad hoc basis. The
appointment was not regular, although in relation to the case 18 of Balwant
Singh, the names were said to have been called for from the Employment
Exchange. Nothing has been placed on record to show as to what was the cadre
strength in the posts to which they were appointed.
No material has been
brought on records to show that the equality clause contained in Articles 14
and 16 had been complied with. Any recruitment made in violation of the
constitutional scheme, as adumbrated therein as also the recruitment rules
framed by the State would render the same illegal and invalid.
very fact that a regularization scheme was framed by the State is a clear
pointer to show that the concerned employees were not regularly employed. They
had sought for regularization of their service and at least in one case, as
noticed hereinbefore, for one reason or the other, the said request was turned
down. The validity thereof was not questioned. It attained finality.
In the case of Rama
Devi, a contention was raised in the writ petition that the offer of
appointment in law was not for a period of six months but for an indefinite
period. Such a contention cannot be upheld. If the initial appointment was for
a fixed period and the appointment could be terminated without any notice and
without assigning any reason, such appointment 19 cannot be said to be an
appointment on a permanent post or a temporary sanctioned post. Unless and
until the post itself is a permanent or a temporary one, the same would not
answer the description of a substantive and permanent employment. In this case,
it had been shown that the services of Karan Singh was being renewed for a
period of six months on the expiry of the original or extended tenure.
3.17 of the Rules in no uncertain term explains as to what is meant by
substantive and permanent employment.
The contention of the
counsel that it applies only to a person who has retired is not correct because
holding of a substantive permanent post on the date of retirement is followed
by the words his temporary or officiating service under the State Government.
service, therefore, whether before retirement or before death must be held to
be sine qua non for becoming eligible for grant of pension? Only when an
employee renders service in a pensionable service, he would be entitled to
Only by reason of
fulfillment of the conditions laid down under the contract of service and/or
the statutory rules governing the same, a person can become a full fledged
Government employee. When the terms and 20 conditions of services are governed
by a statute or statutory rules, no doubt the same would prevail over the
contract of employment but then for the said purpose, the concerned employee
must show that the appointment was regular in nature and on a post which is a
cadre post. The Government employee acquires status only when he becomes
entitled thereto by reason of a statute or by his employer declaring him to be
entitled there for.
a regularization scheme was framed (assuming that such a scheme is valid and
constitutional) the employee must be regularized. At least he must acquire a
right to be regularized in service.
M.P. Vidyut Karamchari Sangh v. M.P. Electricity Board [(2004) 9 SCC 755], this
Court was considering a case where there existed a conflict between a statutory
regulation made under Section 79(c) of the Electricity Supply Act, 1948 and
Certified Standing Order or a rule made under the M.P. Industrial Employment
(Standing Order) Act, 1961, to hold :
"42. It is one
thing to say that when there exists a conflict between a regulation made under
Section 79(c) of the Act and a certified standing order or a rule made under
the 1961 Act, the latter shall prevail; but it is another thing to say that in
absence of any statutory provision governing the age of retirement, the
statutory regulations framed by the respondent Board shall have no application.
It is not in dispute that the impugned notification dated 26.12.2000 had been
issued by the 21 Board in exercise of its power under Section 79(c) of
Electricity Supply Act. Section 15 of the Act empowers the Board to appoint a
Secretary and such other officers as may be required to enable the Board to
carry out its functions. Section 79(c) empowers the Board to make regulations
inter alia as regard the duties of officers and other employees of the Board,
and their salaries, allowances and other conditions of service. The Board,
therefore, was empowered to make regulations which are not inconsistent with
the provisions of the Act and the Rules providing for the duties of officers,
their salaries, allowances and other conditions of service.
43. The power of the
Board, therefore, to lay down the conditions of service of its employees either
in terms of regulation or otherwise would be subject only to any valid law to
the contrary operating in the field.
Agreement within the
meaning of proviso appended to Rule 14A is not a law and, thus, the regulations
made by the Board shall prevail thereover." Yet again in Mahendra L. Jain
& Ors. v. Indore Development Authority & Ors. [(2005) 1 SCC 639], it
was held :
"33. For the
purpose of this matter, we would proceed on the basis that the 1961 Act is a
special statute. vis-`- vis the 1973 Act and the rules framed thereunder. But
in absence of any conflict in the provisions of the said Act, the conditions of
service including those relating to recruitment as provided for in the 1973 Act
and the 1987 Rules would apply. If by reason of the latter, the appointment is
invalid, the same cannot be validated by taking recourse to regularization. For
the purpose of regularization which would confer on the concerned employee a
permanent status, there must exist a post.
However, we may
hasten to add that regularization itself 22 does not imply permanency. We have
used the term keeping in view the provisions of 1963 Rules."
It was also held
therein that :
"38. In A
Umarani (supra), this Court held that once the employees are employed for the
purpose of the scheme, they do not acquire any vested right to continue after
the project is over [See paras 41 and 43]. [See also and Others, (2000) 10 SCC
179 and M.D. U.P. Land and Others, (2003) 5 SCC 388]."
In M.P. Housing Board
& Anr. v. Manoj Shrivastava [(2006) 2 SCC 702] this Court followed the
decision in M.P. Electricity Board to hold :
"15. A daily-wager
does not hold a post unless he is appointed in terms of the Act and the rules
framed thereunder. He does not derive any legal right in relation thereto.
It was furthermore
appointment made by a person who has no authority therefor would be void. A
fortiori an appointment made in violation of the mandatory provisions of the
statute or constitutional obligation shall also be void. If no appointment
could be made in terms of the statute, such appointment being not within the
purview of the provisions of the Act would be void; he cannot be brought within
the cadre of permanent 23 employees. The definitions of `permanent employee'
and `temporary employee' as contained in the rules must, thus, be construed
having regard to the object and purport sought to be achieved by the Act."
the aforementioned legal principles in mind, we may analyse the provisions of
the scheme. The scheme in terms of paragraph 3 is applicable to all regular
employees in pensionable establishment, temporary or permanent who were in
service. Thus, whether temporary or permanent, the employee must be regular
employee which would mean employee appointed on a regular basis, i.e., in
accordance with Rules. Only because services of ad hoc employees were continued,
the same would not mean that thereby his status has been changed. It will bear
repetition to state that status of an employee can change either by reason of a
contract or by reason of a statute. Nothing has been shown to us that the
concerned employees either under the contracts of service or under any statute
or statutory rules became regular employees of the State.
If the scheme did not
apply to the respondents, the provisions as to how the scheme would be
administered are not of any significance.
contention that the family of an employee would be entitled to the benefit of
family pension in the case of the death of Government employee, if he had
completed a minimum period of one year continuous service without break cannot
be accepted. As stated hereinbefore, an employee must be a Government employee
at the first instance. He must be working in a pensionable scheme. He, only in
that capacity, should have completed a minimum period of one year of continuous
service without break which would mean that he must be a temporary or permanent
is one thing to say that a person was appointed on a temporary post on a
regular basis but it is another thing to say that an appointment was ad hoc in
nature on a temporary basis. Whereas in the former case, the appointment must
be carried out in accordance with law, in the later, it may not be.
From a perusal of the
offers of appointment, as noticed hereinbefore, it is evident that the
appointments of the concerned employees were made for a period of six months or
till a regular appointment was made. The very fact that the posts were to be
filled up on regular basis by the competent 25 authority clearly goes to show
that the nature of appointment of the said persons was ad hoc one.
may be that on the expiry of six months, the services were allowed to continue
but the same would not, in absence of any statutory interdict, mean that the ad
hoc employee ceased to be so and acquired the status of a permanent or
Reliance placed on Note
1 of paragraph 4 is not apposite. What is sought to be explained by Note 1 is
the exclusion of the periods which shall not be counted towards one year's
continuous service. It by itself does not create any new right.
In Punjab State
Electricity Board Ltd. v. Zora Singh and Others [(2005) 6 SCC 776], this Court
administrative circulars as thence existed as also the regulations indisputably
require supply of electrical energy to the agriculturists within a period of
two months from the date of receipt of the amount asked for in terms of the
demand notice. It may be true that the note appended thereto provides that the
period specified therein shall be subject to availability of requisite material
but the same does not absolve the appellant from performing its statutory
23. In A.P. SRTC v.
STAT a Full Bench of the Andhra Pradesh High Court has noticed thus: (An LT
p.544, para 31) "31. The meaning of `note' as per P. Ramanatha Aiyar's
Law Lexicon, 1997 Edn. is `a brief statement of particulars of some fact', a
passage or explanation."
24. The note,
therefore, was merely explanatory in nature and thereby the rigour of the main
provision was not diluted."
on paragraph 4 of the scheme and Note 1 appended thereto by the High Court, in
our opinion is misplaced.
of the learned counsel that the names of the concerned employees were being
maintained in the records of the State are not denied and disputed may now be
examined. The same, in our opinion, in the facts and circumstances of this
case, are wholly immaterial. Even assuming for the sake of argument that they
are correct, the same would not confer any legal right on him thereby, to which
he was not otherwise entitled to.
has categorically been stated that husbands of the respective respondents were
not a regular Government employees till their death and, thus, the Family
Pension Scheme was not applicable in their cases.
question although not directly but to some extent has been considered in Uttar
Haryana Bijli Vitran Nigam Ltd. & Ors. vs. Surji Devi [2008 (1) SCALE 570]
wherein it was held :
"14. The scheme
relating to grant of Family Pension was made under a statute. A person would be
entitled to the benefit thereof subject to the statutory interdicts.
From a bare perusal
of the provisions contained in the Punjab Civil Services Rules, Volume 2
vis-`-vis the Family Pension Scheme, it would be evident that the respondent
was not entitled to the grant of any family pension. Husband of the respondent
was a work-charge employee. His services had never been regularized. It may be
unfortunate that he had worked for 11 years. He expired before he could get the
benefit of the regularization scheme but sentiments and sympathy alone cannot
be a ground for taking a view different from what is permissible in law. [See
Maruti Udyod Ltd. v. Ram Lal and Others, (2005) 2 SCC 638, State of Bihar &
Ors. v. Amrendra Kumar Mishra, 2006 (9) SCALE 549, Regional Manager, SBI v.
Mahatma Mishra, 2006 (11) SCALE 258, State of Karnataka v. Ameerbi & Ors.
2006 (13) SCALE 319 and State of M.P. and Ors. v. Sanjay Kumar Pathak and Ors.
[2007 (12) SCALE 72] They statutory provisions, as noticed hereinbefore, debar
grant of family pension in favour of the family members as the deceased
employee if was a work-charge employee and not a permanent employee or
temporary employee. The period during which an employee worked as a work-charge
employee could be taken into consideration only when his services are
regularized and he becomes permanent and not otherwise."
28 The observations
made therein apply to the facts of the present case also.
the reasons aforementioned, the impugned judgments cannot be sustained. The
same are set aside accordingly. Appeals are allowed.
However, in the facts
and circumstances of the case, there shall be no order as to costs.