NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO(S). 4951/2009

THE STATE OF PUNJAB & ANR.             APPELLANT(S)

                               VERSUS

MOHINDERJIT KAUR (D) TH. L.R.  RESPONDENT(S)

WITH CIVIL APPEAL No. 4952/2009

J U D G M E N T KURIAN, J.

These appeals are filed by the State aggrieved by the  judgment  of  the  High  Court,  wherein  the  High Court  has  taken  a  stand  that  the  employees transferred  to  non-pensionable  establishments  will also be entitled to family pension in case they are covered under Rule 5.3 of the Punjab Service Rules. The said Rule reads as follows:-

“5.3(1)  When  a  Government  employee  is transferred  from  pensionable  Government service to a non-pensionable establishment, he cannot be granted any pension or gratuity admissible to him for the qualifying portion of his service until he actually retires from the non-pensionable establishment to which he is transferred.

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(2) A permanent Government employee who may be permitted to be permanently absorbed in a service or post in or under a corporation or a company wholly or substantially owned or controlled  by  Government  or  in  or  under  a body controlled by Government or in or under a body controlled or financed by Government, or  Municipality,  Panchayat  Samiti  or  Zila Parishad,  shall,  if  such  absorption  is declared by Government to be in the public interest, be deemed to have retired from the Government  service  from  the  date  of  such absorption and shall be eligible to receive retirement benefits which he may have elected or deemed to have elected, and from the date of  such  absorption  or  the  date  of  his voluntary  retirement,  whichever  is  later. Each such Government employee is required to exercise an option within six months of his absorption  for  either  of  the  alternative indicated below:-

(a)  receiving  the  monthly  pension  and death-cum-retirement-gratuity  under  the usual government arrangements; or (b)receiving  the  death-cum-retirement- gratuity and a lump sum amount in lieu of pension worked out with reference to the commutation table obtaining on the date  from  which  the  commuted  value becomes payable.

(3) Where no option is exercised within the specified  period,  the  employee  will  be automatically  governed  by  alternative  (b).

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An  employee  opting  for  alternative  (a)  is entitled to commutation of a portion of the pension admissible to him in accordance with the provisions of rules contained in Chapter XI:

Provided that Government shall have no liability for the payment of family pension in such a case:

Provided  further  that  no  declaration regarding absorption in the public interest in  a  service  or  post  in  or  under  such corporation, company, Municipality, Panchayat Samiti or Zila Parishad shall be required in respect  of  Government  employee  whom Government  may,  by  order  declare  to  be  a scientific employee.”

2. It is the persuasive submission of the learned counsel  appearing  for  the  State  that  the  proviso under  Rule  5.3  is  applicable  only  in  case  of  the pensioners covered under Rule 5.3(2)(a).  In other words, it is the case of the appellants that in the case  of  Government  employees  transferred  to non-pensionable establishments, even if they are in receipt of monthly pension, after their death, the surviving  family  members  will  not  be  entitled  for family pension since the proviso under Rule 5.3(3) has carved out an exception, whereby the Government has been exempted from the liability. 3. We  find  it  difficult  to  appreciate  the submission.  Family Pension Scheme is provided under Rule 6.17, which reads as follows:-

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“6.17.   The  provisions  of  this  rule  shall apply:

(a)  to  a  regular  employee  of  Punjab Government  in  a  pensionable establishment on or after the 1st July, 1964; and  (b) to a Punjab Government employee who was in service on the 30th June, 1964 and came to be governed by the provision of Family Pension Scheme, 1964, for Punjab government Employees.”

4. It is not in dispute that the pensioners in these appeals  are  covered  under  the  Scheme  under  Rule 6.17(b).  Nowhere under the Family Pension Scheme is there a provision carving out the class of pensioners in  receipt  of  monthly  pension  so  as  to  deny  the benefit of family pension.  The Scheme having granted the benefit of family pension to such pensioners, the proviso, even assuming it applies to everybody, under the general rules cannot take away the benefit since the  Family  Pension  Scheme  is  a  special  benefit granted to the pensioners.   5. Thus, we wholly agree with the view taken by the High  Court.  These  appeals  are,  accordingly, dismissed. 6. The arrears of pension shall be disbursed to the respondents  within  a  period  of  twelve  weeks  from today and if not, the same shall carry interest @ 12% from the date of the judgment of the High Court and the  officers  responsible  for  the  delay  shall  be personally liable for the same.

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7. Pending  applications,  if  any,  shall  stand disposed of. 8. There shall be no orders as to costs.

.......................J.               [KURIAN JOSEPH]  

.......................J.               [R. BANUMATHI]  

NEW DELHI; AUGUST 17, 2017.

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