important point
Family pension is admissible to members of pensionable establishment only.

judgment

S.B. Sinha, J. —

1. Leave granted.

2. The short question involved in these appeals, arising out of the judgments and orders dated 18.09.2003 and 5.03.2004 passed by the High Court of Punjab and Haryana in C.W.P. Nos. 631, 1110 of 2003 and Review Application No. 71 of 2004 respectively, is as to whether family members of a deceased employee who was appointed on a work-charged basis would be entitled to family pension?

3. For the purpose of disposal of these appeals, we would note the factual matrix only from the Civil Appeal arising out of SLP (C) No. 4392 of 2004 titled Uttar Haryana Bijli Vitran Nigam Ltd. & ors. v. Surji Devi.

4. Appellant No. 1 was the successor of Haryana State Electricity Board which was constituted under Section 5 and incorporated under Section 12 of the Electricity (Supply) Act, 1948. Respondent (Surji Devi) is the widow of Late Shri Krishan. He was appointed on a work-charge basis on or about 12.08.1974. Indisputably he continued to serve the appellant no. 1 in the same capacity. While in service, he expired on 11.08.1985. Respondent was appointed on compassionate ground in the services of the appellant Corporation in terms of an exgratia scheme.

Concededly, the deceased was a member of a Contributory Provident Fund constituted under a Scheme.

Despite the same, the respondent filed an application for grant of family pension, which pertains to altogether a different scheme.

5. Concededly, Late Shri Krishans services were never regularized. The scheme for regularization also came into force in 1986.

As the claim of the respondent no. 1 for grant of family pension was declined, she filed a writ petition before the High Court of Punjab and Haryana. The High Court by reason of the impugned judgment dated 18.09.2003, relying on or on the basis of its earlier decision rendered in Civil Writ Petition No. 7506 of 1998 titled Kanta Devi v. State of Haryana and Others decided on 16.12.1999, allowed the same directing:

“–It is the conceded position that the petitioner had received the benefit of pension under the EPF scheme, but it is also the admitted position that the amount which the petitioner would now receive on account of family pension will be higher than the amount received by her under the EPF scheme.

Mr. Malik accordingly undertakes that the petitioner will refund/ adjust the amount, which she had already received towards the amount, which she will now receive by way of family pension.”

6. Mr. Neeraj Kumar Jain, learned counsel appearing on behalf of the appellants, in support of the appeal would submit:

(i)Having regard to the Punjab Civil Services Rules, Volume 2 as applicable to the State of Haryana, the impugned judgment is wholly unsustainable.

(ii)Respondents husband having been a member of the Contributory Provident Fund, the Family Pension Scheme was not applicable in her case.

7. Mr. Jasbir Singh Malik, learned counsel appearing on behalf of the respondent, on the other hand, urged:

(i)Appellants having not questioned the correctness of Kanta Devi (supra), now cannot turn round and contend that the Family Pension Scheme is not applicable.

(ii)The High Court in Kanta Devi (supra) having interpreted para 4 of the Family Pension Scheme, the appellants are bound thereby.

8. The State of Punjab made the Punjab Civil Services Rules. The said Rules, subject to modifications, became applicable to the State of Haryana. Volume 2 of the said Rules inter alia provide for service qualifying for pension. Rule 3.12 thereof reads as under:

“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 by Government.”

9. Rule 3.17 of the Rules provides that 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 officiati