STATE OF GUJARAT THROUGH CHIEF SECRETARY AND ORS.versusSARTI DEVI

                   STATE OF GUJARAT THROUGH                                     A
                    CHIEF SECRETARY AND ORS.
                                v.
                            SARTI DEVI

                           NOVEMBER 27, 1995
                                                                                B
             [K. RAMASWAMY AND B.L. HANSARIA, JJ.)

       Se1vice Law:

       Revised Pension Rules, 1950 : Rule 3.
                                                                                c
       Pension-Family Pension-Famil:r-Scope of-Mother-Held not in-
 cluded in the family-Not entitled to family pension-Direction for ex-gratia
 payment to mother.                 ·

       Code of Civil Procedure, 1908 : Section 20.                              D
      Jurisdiction-Claim for f amity pension-Suit instituted in a Court where
 no cause of action had arisen--Decree held nullity.

        The respondent's son, a Constable in the Gujarat State Reserve
  Police died in harness. The widow of the deceased Constable was granted E
  family pension but as she contracted second marriage the payment of
  pension was stopped. Thereafter the mother of the deceased Constable, the
  respondent, instituted a suit in the Court of Additional Senior Sub-Judge,
  Mohindergarh, Haryana claiming family pension which was decreed. The
. first appellate Court and the High Court affirmed the decree. State of
  Gujarat preferred appeal before this Court.                                F

       Disposing the appeal, this Court

        HELD : 1. Section 20 of the Code of Civil Procedure, 1908 envisages
 institution of the suit in the court within whose jurisdiction the defendants G
 ordinarily reside etc. The deceased Constable served in the State of
 Gujarat. The appellant's offices are situated in Gujarat State and no part
 of the cause of action had arisen in Haryana. Neither counsel can waive
 the jurisdiction nor by consent confer jurisdiction on courts situated in
 the State of Haryana. Therefore, none of the courts in Haryana has any
 territorial Jurisdiction to entertain the suit for the payment of pension by H
                                       691
     .692                     SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R .

A the, State of Gujarat. Under these circumstances, the decree of the trial
     court is one of total lack of jurisdiction. It is a nullity. [693-B-C]

           2. In view of the express definition of the family in Revised Family
     Pension Scheme, mother has not been included as a member of the family
     to claim any family pension from the Government, much less after the
B    maximum period of ten years. Under these circumstances, in either event,
     the decree of trial court as affirmed by appellate Court and second appeal,
     are clearly illegal. The respondent-mother is an aged woman of 85 years.
     She has no other source except her dependence on her deceased son. In
     view of these peculiar facts, without treating the order of this Court as a
C    precedent an ex-gratia payment of Rs. 6,000 shall be made by the State to
     the respondent within a period of two months from the date of the order.
                                                                       [694-D-F]
             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11662 of
     1995.
D
          From the Judgment and Order dated 19.12.94 of the Punjab &
     Haryana High Court in RS.A. No. 1660 of 1994.

             V. Desai and Ms. H. Wahi for the Appellants.

E            S.S. Khaduja, Y.P. Dhingra and V.S. Satija for the Respondent.

            . The following Order of the Court was delivered :

             Leave granted.

·F        Lal Singh, son of the respondent who died in harness, had worked
    as Constable in Gujarat State Reserve Police in the year 1975. He was
    recruited in the year 1965 as a Constable. After his demise, his widow
    Savitri was granted family pension. She contracted second marriage in
    1976. Consequently, the appellant stopped paying pension to the widow. In
G 1987, the respondent laid the suit in the Court of Additional Senior
  ··Sub-Judge, Mohindergarh, Haryana State claiming family pension. The
    Trhl Court decreed the suit. On appeal, the District Court refused to
    condone the delay of 107 days and confirmed the decree of the Trial Court
    and when second appeal was preferred, the High Court in RSA No.
    1660/94 by an order dated 17th December, 1994 dismissed it, as usual, in
H limine. Thus this appeal by special leave.
                         STATEv. SARTI DEVI                            693

       Two questions have been raised in this appeal. First relates to the A
jurisdiction and the second to the entitlement of the respondent to pension.
It is an admitted fact that the deceased Lal Singh served as a Constable in
the State of Gujarat. Section 20, Code of Civil Procedure, 1908 envisages
institution of the suit in the Court within whose jurisdiction the defendants
ordinarily reside etc. The appellant's offices are situated in Gujarat State
                                                                              B
and no part of the cause of action had arisen in Haryana. Neither counsel
can waive the jurisdiction nor consent confer jurisdiction on Courts
situated in the State of Haryana. Therefore, none of the Courts in Haryana
has any territorial jurisdiction to entertain the suit for the payment of
pension by the State of Gujarat. Under these circumstances, the decree of
the Trial Court is one of total lack of jurisdiction. It is a nullity.       c
       The next question is whether respondent is entitled to the family
pension. The State of Gujarat made family pension under revised family
pension scheme in 1972 enabling the dependents to get pension for a
maximum period of 10 years. As mentioned in the preamble of the order D
itself:

        "Under the existing orders (The revised pension Rules 1950, as
        amended) a Government servant has to complete service of not
        less than 10 years in order to become eligible for the benefit of
        Family Pension and also duration of the pension is limited to a      E
        maximum period of 10 years. The existing provisions were not
        found to be adequate and as such the position has been reviewed
        and a fresh scheme has been drawn up which provides at varying
        rates a pension for the life to the widow of the deceased Govern-
        ment servants as detailed."
                                                                             F
      'Family' has been defined in Rule 3 of the Rules :

        "Family" for purposes of this scheme will include the following
        relatives of the Government servants :

        (a) wife, in the case of a male Government servant;                  G
        (b) husband, in the case of a female Government servant;

        (c) minor sons; and

        (d) unmarried or minor daughters.                                    H
    694                  SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.

A            Note 1-(c) and (d) will include children adopted legally before
             retirement/death.

             Note 2-Marriage after retirement will not be recognised for pur-
             poses of this scheme."

B        A reading thereof clearly indicates that the family consists of the
  relatives, namely, the widow (if he happens to be married) of the deceased
  in case of male Government servant and husband in case of female Govern-
  ment servant and minor sons and unmarried or minor daughter. In the case
  of the children, legally adopted children, before retirement/death also
C would become members of the family. If the widow remarries, she becomes
  disentitled to the pension as she ceases to be the member of the family.
  Obviously, for this reason, the wiaow Savitri Devi was not given pension
  after her remarriage in 1976.

          The question is whether mother is a dependent. In view of the
D express definition of the family, mother has not been included as a member
    of the family to claim any family pension from the Government, much less
    after the maximum period of ten years. Under these circumstances, in
    either event, the decree of trial court as affirmed by appellate court and
    second appeal, are clearly illegal.
E
          It is stated that the mother-respondent is aged woman of 85 years.
    She has no other source except her dependence on her deceased son and,
    therefore, some consideration may be shown to the aged mother. In view
    of the peculiar facts, without treating this order as a precedent, we think
    that an ex-gratia payment will be made by the State. Accordingly, we direct
F   the appellant-State to pay a sum of Rs_. 6,000 to the appellant as ex-gratia.

        Accordingly, the decree of the court below is set aside. It is directed
  that the State to pay the amount within a period of two months from the
  date of the receipt of this order. The learned counsel for the respondent
G would give the address of the respondent to the counsel for the State which
  would be communicated to the appellants and the amount shall be dis-
  bursed to the address so stated. The appeal is disposed of. No costs.
                                                                                    f
    T.N.A.                                                  Appeal disposed of.