Entitlement to family pension based on the service rendered in a regular work-charged establishment is governed by the relevant provisions of the Pension Rules of 1979 and 1976.

ORDER

Milind Ramesh Phadke, J. - By this writ appeal under section 2 (1) of Madhya Pradesh Uchha Nyalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, the appellant/petitioner had challenged the judgment dated 15.7.2019 passed by learned Single Judge in W.P. No.3998/2010, whereby the writ petition filed by the appellant/petitioner was dismissed, while holding that since the husband of the petitioner had not qualified minimum requirement service of regularized Work-charged establishment i.e. 10 years to enable him to qualify for pension or family pension, the authorities were justified in not granting the pension or family pension to the petitioner.

2. With consent of the parties the matter is finally heard at motion stage.

3. Brief facts leading to this appeal are that husband of the present petitioner was appointed as a Gangman in the Public Works Department on muster roll on 26/12/1963 and his services were regularized with effect from 01/01/1998 and he stood retired after attaining the age of superannuation on 31/05/2007 after completion of 9 years and 5 months and w.e.f. 26/12/1963 he had completed 43 years of service approx.

4. Before the learned Single Judge, it was the case of the petitioner that the petitioner's husband during his life time had asked for pension after his retirement but the same was denied on the ground that since he had worked only for 9 years as a regular employee, he doesn't qualify the minimum service required to be eligible for grant of pension. It was the case of the petitioner that though similarly situated employee had been granted pension by the department and even the law regarding counting of services rendered while working under Work charged Contingency Department is clear for the purposes of grant of pension, the Department had wrongly denied it and accordingly a prayer was made for a direction to the respondent department to count the services of the husband of the petitioner from initial date of appointment for pension purpose and to grant family pension and arrears with interest.

5. The stand of the respondent-department was that since the husband of the petitioner did not complete 10 years of service as regular employee which is the minimum requirement under the Pension Rules, the petitioner is not entitled for grant of family pension. After hearing the matter the learned Single Judge dismissed the petition holding that since the husband of the petitioner did not qualify the minimum requirement of regularized work-charged establishment i.e. 10 years to enable him to qualify for the pension/family pension, the authorities were justified for non-granting of the pension/family pension to the petitioner.

6. Learned Counsel for the petitioner vehemently argued that the learned Single Judge overlooked the fact that as per rule 6 sub-rule 3 of Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rules, 1979 which deals with commencement of qualifying service, specifically speaks of on absorption of temporary employee without interruption against any regular pensionable post, the service rendered with effect from 1st January, 1974 onwards, if such service is not less than six years shall be counted for pension as if such service was rendered in a regular post. It was further argued that rule 2(c) of the Pension Rules of 1979 defines term 'Permanent Employee' as a contingency paid employee or a work charged employee who had completed fifteen years of service or more on or after 1st of January, 1974 and if in the light of the above definition, the services of the husband of the petitioner is counted, he being in employment since 1963 and had completed more than six years of regular service prior to his regularization on 01/01/1998, was entitled for the pension and consequently the petitioner was entitled for family pension.

7. Per contra the learned Government Advocate argued that since the husband of the petitioner did not complete 10 years of the service as regular employee which is th