IMPORTANT POINT
DB of High Court has rendered judgment in ignorance of Clause 4 of 1957 resolution for direction of family pension and the same is liable to be set aside.

Headnote:Constitution of India-Articles 14, 21, 32 and 226-Family pension-Minimum period of service-1972 Resolution of Government of Gujarat (The Revised Pension Rules, 1950 as amended) requiring 10 years minimum service-Reduced to 5 years-Respondent s husband a constable dying in harness having service of 3 years and 10 months-Respondent challenged the validity of fixing any period dismissed-She filed petition under Article 226 so as to be entitled to benefit of family pension under 1987 resolution-D.B. of High Court, setting aside single judge, directed appellant to fix the family pension of respondent and to pay the same to her regularly-Whether correct? (No)-Result-Appeal allowed.
       Held : It seems evident that the attention of the High Court was not drawn to Clause 4 of the Resolution dated 31st July, 1987 which clearly stipulates that it shall apply to those Government employees who are/were in service on 1st January, 1986. The husband of the respondent had died in December, 1980. Clearly, therefore, 1987 Resolution is not applicable to the respondent. She cannot claim benefit of family pension under 1987 Resolution. (Para 10)
       The impugned judgment does not make any reference to Clause 4 of 1987 Resolution. It is clear that if the said clause had been brought to the notice of the Division Bench of the High Court there would have been no question of grant of any relief to the respondent as the impugned judgment notices that if 1972 Resolution had not been amended the respondent would not have been entitled to the benefit of family pension. In view of Clause 4 of 1987 Resolution, the respondent is not entitled to benefit of family pension. She is also not entitled to family pension under 1972 Resolution for want of minimum five years continuous service of her husband. No other Resolution, rule or scheme was brought to our notice on basis whereof directions could be issued for grant of family pension to her. For the aforesaid reasons we set aside the impugned judgment of the Division Bench of the High Court and restore that of the learned Single Judge dismissing the writ petition. The appeal is thus allowed leaving the parties to bear their own costs. (Paras 13 and 14)

JUDGMENT

Y.K. Sabharwal, J.-The husband of the respondent joined police service under the appellants as constable on 15th of January, 1977. He died in harness on 12th December, 1980 leaving behind the respondent and her two children. At the time of his death he had put in total service of about 3 years and 10 months as constable. The respondent made several representations for grant of family pension to her but without any success. As a result of denial of family pension a civil suit was filed by her claiming declaration that she was entitled to receive family pension. The said suit was dismissed on 21st September, 1990. The first appeal and second appeal therefrom were also dismissed.

2. The judgment of the High Court dismissing the second appeal was challenged by filing a special leave petition before this court. Along with it, a writ petition was also filed by the respondent under Article 32 of the Constitution of India claiming the relief of family pension and also challenging the eligibility criteria for grant of family pension as laid down in the Government Resolution dated 1st January, 1972. The said Resolution relaxed the minimum period of service so as to be entitled to the benefit of family pension. The 1972 Resolution of Government of Gujarat notices that under the existing orders (The Revised Pension Rules, 1950, as amended) a Government servant has to complete service of not less than 10 years, in order to become eligible for family pension and on review a fresh scheme has been drawn for family pension for the State Government service. It stipulated that the family pension under the scheme would be admissible in case of death while in service on or after 1st June, 1971 provided a Government servant has completed a minimum of five years of continuous service on the date of death. Thus the eligibility period for minimum continuous service stood reduced from 10 years to five years. In Article 32 petition, the respondent also challenged the validity of fixing of any period so as to be entitled to benefit of family pension.

3. The special leave petition and the writ petition were dismissed by this Court on 16th August, 1994 and the following order was passed:

"We do not find any ground to grant the relief for family pension claimed by the petitioner. We may however observe that in case such a benefit is being granted to any other person similarly situate then the authorities may consider the petitioner s case also for grant of similar relief.

Special Leave Petition and the Writ Petition are dismissed with the above observations."

4. After the aforesaid order, the respondent sent representation to the Chief Secretary, Government of Gujarat. A notice under Section 80 of the CPC was also served on the Government. The respondent was informed that her husband did not satisfy the eligibility criteria and she was not entitled to the grant of family pension.

5. Under the aforesaid circumstances a writ petition under Article 226 of the Constitution of India was filed before the High Court seeking quashing of the stipulation of minimum five years service in 1972 Pension Scheme on the ground that it was violative or Articles 14 and 21 read with Articles 38, 39 and 41 of the Constitution of India and also for issue of directions to the State Government to fix family pension and for immediate payment thereof to her. The writ petition was dismissed by the learned Single Judge summarily noticing that the claim of the respondent was contrary to the Family Pension Scheme inasmuch as her husband had not put in five years service as stipulated in the scheme.

6. The matter was taken in appeal before the Division Bench of the High Court.

7. By the impugned judgment the High Court setting aside the order of the learned Single Judge has declared that the respondent is entitled to benefit of family pension with effect from 12th December, 1980. The appellants have been directed to fix the family pension of respondent and to pay the same to her regu

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2002 Supreme(SC) 943

IMPORTANT POINTDB of High Court has rendered judgment in ignorance of Clause 4 of 1957 resolution for direction of family pension and the same is liable to be set aside.

IMPORTANT POINT
DB of High Court has rendered judgment in ignorance of Clause 4 of 1957 resolution for direction of family pension and the same is liable to be set aside.