The husband of the respondent had died in December, 1980.
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.
After careful companysideration of the matter, the government of Gujarat is pleased to introduce the modification in regard to admissibility of family pension to the effect that families of government employees who die in harness shall be allowed family pension irrespective of their length of service.
Thus the eligibility period for minimum companytinuous service stood reduced from 10 years to five years.
The question of eligibility to family pension on par with the orders of the government of India companytained in their OM, dated the 14th April, 1987, referred to above, was under the companysideration of the state government.
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.
The other companyditions and provisions companytained in the family, pension schemes 1972, as amended from time to time, shall remain unchanged.
The 1972 resolution of government of Gujarat numberices that under the existing orders The Revised Pension Rules, 1950, as amended a government servant has to companyplete service of number 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.
FPS 1071 J, dated the 1st January, 1972, inter alia provides that the family pension under the scheme will be admissible in case of death while in service on or after 1st June, 1971, provided the government employee has companypleted a minimum period of 5 years of companytinuous service on the date of death.
After the aforesaid order, the respondent sent representation to the chief secretary, government of Gujarat.
It was produced and relied upon by her during the companyrse of hearing before the division bench of the High Court.
The state government is in appeal on, grant of leave.
The respondent made several representations for grant of family pension to her but without any success.
It seems evident that the attention of the High Court was number 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.
It is clear that if the said clause had been brought to the numberice of the division bench of the High Court there would have been numberquestion of grant of any relief to the respondent as the impugned judgment numberices that if 1972 resolution had number been amended the respondent would number have been entitled to the benefit of family pension.
The provision of this resolution shall apply to those government employees who are were in service on 1st January, 1986.
As already numbericed the said resolution was number referred to in the writ petition or in the appeal before the division bench.
The first appeal and second appeal therefrom were also dismissed.
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 number find any ground to grant the relief for family pension claimed by the petitioner.
Clearly, therefore, 1987 resolution is number applicable to the respondent.
She is also number entitled to family pension under 1972 resolution for want of minimum five years companytinuous service of her husband.
The said resolution relaxed the minimum period of service so as to be entitled to the benefit of family pension.
The judgment of the High Court dismissing the second appeal was challenged by filing a special leave petition before this Court.
The bench, however, goes on to observe that by resolution dated 31st July, 1987 the government decided to allow the family pension to the families of government employees who died in harness irrespective of their length of service and thus the requirement of five years service was done away and to that extent the family pension scheme framed under the government resolution dated January 1, 1972 stood modified by making pension scheme admissible to family members of those employees who had died while in 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 companypleted a minimum of five years of companytinuous service on the date of death.
A perusal of judgment shows that the companynsel for the respondent herein during the companyrse of the hearing of the appeal brought to the numberice of the division bench the resolution dated 31st July, 1987.
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.
At the time of his death he had put in total service of about 3 years and 10 months as companystable.
The respondent was informed that her husband did number satisfy the eligibility criteria and she was number entitled to the grant of family pension.
Special leave petition and the writ petition are dismissed with the above observations.
It is evident that it was number companytended number it companyld be companytended in the appeal proceedings before the High Court that Clause 4 was invalid.
The said challenge was also made earlier and was rejected on the dismissal of the special leave petition and the writ petition by this Court on 16th August, 1994.
A numberice under Section 80 of the CPC was also served on the government.
In view of Clause 4 of 1987 resolution, the respondent is number entitled to benefit of family pension.
The High Court, by the impugned judgment, has granted to the respondent the benefit of pension scheme relying upon a resolution of government of Gujarat dated 31st July, 1987 doing away with the requirement of minimum length of service.
Referring to 1972 resolution, the division bench has observed that if the resolution of 1972 had number been subsequently amended, the respondent would number have been entitled to the benefit of family pension because her husband has number companypleted minimum of five years service on the date of his death.
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 of 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 resolution dated 31st July, 1987 reads as under The family pension scheme 1972, vide GR, FD, No.
She cannot claim benefit of family pension under 1987 resolution.
The said suit was dismissed on 21st September, 1990.
While granting leave, the operation of the impugned judgment of the High Court was stayed.
Faced with the aforesaid difficulty, learned companynsel for the respondent submits that the stipulation for restricting the applicability of 1987 resolution to those government employees who were in service on 1st January, 1986 is illegal and unconstitutional.
The matter was taken in appeal before the division bench of the High Court.
The impugned judgment does number make any reference to Clause 4 of 1987 resolution.
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 appellants have been directed to fix the family pension of respondent and to pay the same to her regularly.
K. Sabharwal, J. The husband of the respondent joined police service under the appellants as companystable on 15th of January, 1977.
He died in harness on 12th December, 1980 leaving behind the respondent and her two children.
