The petitioner claimed family pension for her husband who died after two months of service. The court held that the petitioner was not entitled as the appointment was temporary, not on probation against a permanent post, requiring one year of service which was not completed.
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
JAIPUR BENCH, JAIPUR
ORDER
SB Civil Writ Petition No.7642/2007
Kamla versus State of Rajasthan & ors
7.1.2014
HON'BLE MR. JUSTICE MN BHANDARI
Mr KC Sharma - for petitioner(s)
Ms Priyanka Pareek, Dy GC – for respondents
BY THE COURT:
The writ petition has been filed to claim family pension by the petitioner, whose husband died on 15.7.2990 while in service.
Learned counsel for petitioner submits that vide order dated 20.2.1990, petitioner's husband Kanhaiya Lal Meena was appointed on the post of Teacher Gr III on regular and substantive basis. It was after selection pursuant to the advertisement bearing No.1/89. The petitioner's husband unfortunately died after two months of joining the service. As per rule 268B of the Rajasthan Service Rules, then existing, an employee appointed on probation and against permanent post was entitled to pensionary benefits
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even if he had not completed one year of service. The petitioner should have been extended benefit of family pension in view of abovesaid provision.
Learned counsel for the respondents, on the other hand, submits that petitioner's husband was initially appointed on temporary basis based on the application received through the Employment Exchange office. A separate order for regularisation/ confirmation was later on issued by the respondents for others but, at that time, petitioner's husband was not alive. In absence of completion of one year of service, petitioner is not entitled to the benefit of family pension. The writ petition has been filed after a delay of more than 17 years without explaining or justifying the same. In view of above, writ petition may be dismissed.
I have considered the submissions made by learned counsel for the parties and perused the record.
The denial of pensionary benefits is in absence of completion of one year's service after appointment. As per rule 268B of the RSR, then existing, one is entitled to the family pension if the employee concerned died on or after 1.3.1964 while in service provided he has already completed one year's service,
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however, condition to complete one year of service would not apply if the employee was appointed on probation against permanent post. In view of above, rule 268B (i) of the RSR, then existing, at the time of death of the petitioner's husband, claim of family pension has been made.
The question is as to whether the petitioner's case fall under rule 268B of the RSR or not inasmuch as petitioner's husband did not complete one year's service before his death. The exception to get benefit is referred by sub-rule (i) of rule 268B. In view of the aforesaid, it would be necessary to look into the order dated 20.2.1990 by which petitioner's husband was appointed.
The perusal of the opening para of the appointment order shows it to be in accordance with the Rajasthan Sanskrit Education Subordinate Service Rules, 1978, however, appointment therein has been given on temporary basis and not on probation. To fall under rule 1268B (i) of the RSR, appointment should be on probation against a permanent post. A different has to be made between 'temporary appointment' and 'appointment on probation'. The appointment has been given on temporary basis even after issuance of the advertisement due to ban on appointment imposed by the State Government as has been
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mentioned in last three line of fist para of the appointment order dated 20.2.1990. The appointment order further makes a reference of appointment of those whose names and applications were received through the Employment Exchange offices. If the appointment is made from and amongst the candidates whose applications were received from Employment Exchange, it cannot be said to be an appointment on probation in conformity to the Subordinate Service Rules.
The rejoinder to the reply shows separate order of regularisation/ confirmation of those who were appointed along with the petitioner's husband. The regularisation is required only when initial appointment was not on regular or permanent basis. The facts narrated in the rejoinder thus support the order dated 20.2.1990. In absence of appointment on probation against a permanent vacancy, rule 268B(i) of the RSR, then existing, in the year 1990, cannot be applied. In view of aforesaid, petitioner is not entitled to the family pension as her husband died after working for two months only thus has not completed one year's service after appointment on temporary basis. In the result, writ petition is dismissed.
(MN BHANDARI), J.
bnsharma
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All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-JW
2 issues framed by the court
Whether an applicant under the Rajasthan Service Rules is entitled to family pension if the employee died after two months of temporary appointment without completion of one year's service.
Whether a difference exists between temporary appointment and appointment on probation against a permanent post for the purpose of availing pensionary benefits.
2 provisions across 2 enactments
Kamla
State of Rajasthan
MN BHANDARI
As recorded by the court registry
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