Holding

Ad‑hoc appointees are not regular government employees; therefore, their dependents are not eligible for family pension under the Rules and the 1964 Scheme.

Summary

The Supreme Court examined whether the widows of three deceased employees, who had been appointed on an ad‑hoc six‑month basis, were entitled to family pension under the Punjab Civil Services Rules and the 1964 Family Pension Scheme. The Court held that eligibility for family pension is conditioned on the employee being a regular government servant in a pensionable establishment, as defined by the Rules framed under Article 309 of the Constitution. The ad‑hoc appointments were not regularised, did not constitute substantive or permanent posts, and therefore the deceased were not "government employees" for pension purposes. Consequently, the requirement of one year continuous service could not be satisfied. The Court rejected the High Court’s reliance on the Scheme’s wording and noted that the Scheme cannot be read independently of the Rules. The appeals were allowed, setting aside the High Court judgments and denying family pension to the respondents.

Issues considered

Whether dependents of deceased ad‑hoc appointees qualify for family pension under the Punjab Civil Services Rules and the 1964 Family Pension Scheme.
Whether the Family Pension Scheme can be interpreted independently of the Punjab Civil Services Rules.
Whether an ad‑hoc appointment satisfies the conditions of a regular, substantive and permanent government employment required for pension eligibility.
Whether the one‑year continuous service requirement applies to employees appointed on an ad‑hoc basis.

Legislation cited

Constitution of Indias. Article 188, s. Article 309
Electricity (Supply) Act, 1948s. Section 15, s. Section 79(c)

Subjects

family pensionad‑hoc appointmentregularisationgovernment employee statusPunjab Civil Services Ruleseligibilitypensionable establishmentArticle 309constitutional law

Judgment

STATE OF HARYANA & ORS. v. SHAKUNTLA DEVI 63

allowed by the High Court, the State Government filed the A
appeal. The other appeals were filed in similar
circumstances.

Allowing the appeals, the Court

HELD: 1.1. The matter relating to grant of family B
------w1 pension in the State concerned is covered by Part I
Volume II of the Punjab Civil Services Rules and the
Family Pension Scheme, 1964 framed under the Rules.
•._
The Rules having been framed under 'Proviso' to Article
309 of the Constitution of India evidently apply to the c
Government employees. The 1964 Scheme is subject to
the provisions of the Rules. Before a person can be said
to have acquired a right to obtain the benefits of ·1964
Family Pension Scheme, he must satisfy the eligibility as
envisaged under the Rules. Family pension can be. D
granted to the dependent of deceased Government
employee under the Family Pension Scheme only by way
of a further relief and not as independent of the' main
Pension Rules. The Scheme cannot be read independent
of the Rules. If a person was not a Government employee, E
the question of his dependent becoming entitled to the
benefits of family pension scheme would not arise. [Paras
_... 9, 10, 13 and 20] (71-D; 79-8, C]

Arundhati Ajit Pargaonkar v. State of Maharashtra & Ors.,
AIR (1995) SC 962, referred to. F

S.K. Mastan Bee. v. The General Manager, South Central
Railway & Anr., (2003] 1 SCC 184 and Kanta Devi v. State
of Haryana, (2000) 2 SCT 32, held inapplicable.
G
1.2. In terms of the Rules; the following conditions
precedent must be fulfilled before the benefit of family
pension can be extended: 1) the employee must be a
Government employee; (2) he must be employed in a
pensionable establishment; and (3) he must have
H
64 SUPREME COURT REPORTS [2008] 15 S.C.R.

A become eligible to derive the benefit thereof. The
distinction between a pensionable establishment and a
provident fund establishment must be borne in mind.
Pension although is not a bounty, entitlement thereto is
only under a statute. Only when the conditions precedent
B provided for in the statute are fulfilled, an employee
would be entitled thereto. In the instant case, the offers
of appointment made in favour of the employees in no
uncertain terms show that they were appointed on an ad
hoc basis. The appointment was not regular. [Para 22 and
, •• 1
C 23] [79-H; 80-B]
1.3. The very fact that a regularization scheme was
framed by the State is a clear pointer to show that the
employees concerned were not regularly employed. They
had sought for regularization of their service and at least
D in one· case, the request was turned down. The validity
thereof was not questioned. It attained finality. Only when
an employee renders service in a pensionable service, he ·
would be entitled to pension. [Paras 24 and 25] [80-E, F;
81-D]
E
M.P. Housing Board and Anr. v. Manoj Shrivastava,
[2006] 2 SCC 702 and Uttar Har1ana Bijli Vitran Ngam Lt. &
Ors. v. Surji Devi, (2008) 1 SCALE 570, relied on.

/1.11.P. Vidyut Karamchari Sangh v. M.P. Electricity Board,
F (2004] 9 SCC 755; ·Mahendra L. Jain & Ors. v. Indore
Development Authority & Ors., [2005] 1 sec 639 and Punjab
State Electricity Board Ltd. v. Zora Singh and Ors., (2005] 6
sec 776, referred to .
. 1.4. If the initial appointment was for a fixed period
G and the appointment could be terminated without any
notice and without assigning any reason, such
appointment cannot be said to be an appointment on a
permanent post or a temporary sanctioned post. Unless
and until the post itself is a permanent or a temporary one,
H the same would not answer the description of a
STATE OF HARYANA & ORS. v. SHAKUNTLA DEVI 65

substantive and permanent employment. [Para 24] [80-G, A
H; 81-A]
2.1. It is trite that each Government employee should
be borne in his respective cadre, ·cadre' having been
defined to mean the strength of a service or a part of
8
service sanctioned as a separate unit. The Government
employees having regard to the provision enshrined in
Article 309 Qf the Constitution enjoy a 'status'. Their
appointment must be made in teMns of appropriate
recruitment rules and upon compliance of the equality
clauses contained in Articles 14 and 16 of the C
Constitution of India. [Para 13 and 15] [76-F, G; 77-E]
2.2. Only by reason of fulfillment of the conditions
laid down under the contract of service and/or the
statutory rules governing the same, a person can become
< \ 0
a full fledged Government employee. When the terms and
conditions of services are governed by a statute or
statutory rules, no doubt the same would prevail over the
contract of employment but then for the said purpose, the
employee concerned must show that the appointment
was regular in nature and on a post which is a cadre post. E
The Government employee acquires status only when he
becomes entitled thereto by reason of a statute or by his
employer declaring him to be entitled therefor. [Para 25]
[81-E, F]
F
3.1. It cannot be said that the family of an employee •
would be entitled to the benefit of family pension in the
case of his death, if he had completed a minimum period
of one year continuous service without break in a
government .establishment. An employee must be a
Government employee at the first instance. He must be G
working in a pensionable scheme. He, only in that
capacity, should have completed a minimum period of
one year of continuous service without break which
would mean that he must be a temporary or permanent
employee. An appointment on a temporary post on a H
66 SUPREME COURT REPORTS. [2008] 15 S.C.R.

A regular basis and an appointment which is ad hoc in
nature on a temporary basis fall in different classes.
Whereas in the former case, the appointment must be
carried out in accordance with law, in the later, it may not
be. [Para 29 and 30] [84-G, H; 85-A, BJ
B 3.2. The Scheme in terms of paragraph 3 is applicable
to ·all regular employees in pensionable establishment, ),.. ·.
temporary or permanent who were in service. Thus,
whether temporary or permanent, the employee must be
regular employee which would mean employee appointed
C on a regular basis, i.e., in accordance with Rules. Only
because services of ad hoc employees were continued,
the same would not mean that thereby their status has
been changed. Status of an employee can change either
by reason of a contract or by reason of a statute. Nothing
D has been brought on record to show that the employees
concerned either Under the contracts of service or under
any statute or statutory rules became regular employees
of the State. [Para 28] [84-D-E]
E 3.3. It has categorically been stated that husbands of
the respective respondents were not regular Government
employees till their death and, thus, the Family Pension
· Scheme was not applicable in their cases. [Para 33]
[86-F]

F Case Law Reference:
AIR (1995) SC 962 referred to Para 5
)

c20031 1 sec 184 held inapplicable Para 11
(2000) 2 SCT 32 held inapplicable Para 11
G
c2006J 2 sec 102 relied on Para 27
(2008) 1 SCALE 570 relied on Para 34
[2004J s sec 755 referred to Para 27
H c2005J 1 sec 639 referred to Para 27
STATE OF HARYANA & ORS. v. SHAKUNTLA DEVI 67

''!
c2oos1 s sec 776 referred to Para 31 A

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6271 of 2008.

From the final Judgment and Order dated 4.5.2005 of the
High Court of Punjab and Haryana at Chandigarh in C.W.P. No. 8
1858 of 2004.
,_-i
WITH
C.A. Nos. 6272 & 6273 of 2008.
c
P.S. Patwalia, Manjit Singh, Harikesh Singh and T.V.
George for the Appellants.
=t
~
iiif Shikha Roy Pabbi, S.K. Pabbi, Ajit Kumar, S.K.
Sabharwal, Prem Malhotra, Ashu Bhatia, Ravi Pratap Singh and
D
Ajay Choudhary for the Respondent.

The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.
'

2. Whether the respondents being dependents of the E
deceased ad hoc appointees are entitled to grant of 'family
pension' in terms of the provisions of Punjab Civil Services
Rules (for short, 'the Rules') and Family Pension Scheme, 1964
-', (For short, 'the 1964 Scheme) is the question involved in these
appeals, which arise out of judgments and orders dated F
4.5.2005 and 24.4.2007 passed by the High Court of Punjab
and Haryana at Chandigarh in CWP Nos.8401 of 2003, 1858
of 2004 and 13112 of 2006.

3. Respondent Shakuntla Devi is the widow of Late G
Balwant Singh Driver; Respondent Rama Devi is the widow of
Late Karan Singh; and Respondent Sohni Devi is the widow
of Late Dharam Pal.

4. All of them were appointed on ad hoc basis for a period
H
68 SUPREME COURT REPORTS [2008] 15 S.C.R.

A of six months on diverse dates.

Their offers of appointment containing the terms and
conditions thereof,·read as under:

(a) Offer of Appointment of Late Karan Singh
B
"The following applicants are appointed as J.B.T.
on the basis of six months, 011 pay of Rs.125/- and
prescribed allowances total grade of Rs.125/250 in
the Schools mentioned against each. They are
c directed to submit their joining reports to the
concerned Head Master/Head Mistress, Block
Education Officer by 11.7.73 (F.N.). If he fails to join
by this date, other applicants will be appointed in
their place.
..... .
D The service is temporary and liable to be
removed from service at any time without any
notice.

Name of applicant Registration Place of Remarks
E & address No. Appointment
Sh. Karan Singh 2879/73 Govt. Nil
s/o Deep Chand, Secondary
Village Manpur, School,
The. Nuh, Gurgaon Kondal
F
Endst. No. even."

(b) Offer of Appointment o Late Ba/want Singh

"Sub. Ad hoc appointment of Drivers.
G
On the recommendations of the State Employment >
Exchange, Haryana, you are hereby offered a post
of temporary Driver in the Pay scale of Rs.1200-
30-1500-EB-40-2040 plus usual allowances as
H
STATE OF HARYANA & ORS. v. SHAKUNTLA DEVI 69
[S.B. SINHA, J.]

sanctioned by the Haryana Government from time A
to time for a period of six months or till such a
recommendee of Subordinate Services Selection
Board, Haryana reports for duty, whichever event is
earlier.
B
2. Your appointment is temporary and your
services can be terminated without assigning any
reason and without any notice of discharge."

(c) Offer of appointment of Late Dharam Pal
c
"Subject - Appointment on ad hoc basis

The Director of Industrial Training & Vocational
Education Haryana is pleased to appoint you to the
post of Clerk in the grade of 400-104-90/540-15-
0
600-EB-20-660 plus allowance as admissible
under rule purely on ad hoc basis for a period of
six months, or till a regular candidate duly
recommended by the Subordinate Services
Selection Board, Haryana joins, which ever is
earlier, on the terms and conditions mentioned E
below:-

(i) that your services are liable to be terminated at any
time without notice and without assigning any
reasons. F
(ii) That conditions of your ad hoc services will be
governed by the rules and instructions issued by the
Haryana Government from time to time ....... "

All the aforementioned offers of appointment, thus, G
categorically go to show that the same were ad hoc in nature.
Appointments were made for a period of six months only. The
services of the appointees were liable to be terminated without
any notice or without assigning any reason.
H
70 SUPREME COURT REPORTS [2008] 15 S.C.R.

A 5. Temporary servants may be appointed by the State for
satisfying the needs of a particular contingency. Conditions of
service of the temporary servants may be regulated either by
laying down the conditions therefor in the offer of appointment
and/or the rules operating in the field.
B
If an appointment, it is trite, is made to a temporary post,
there can be no permanent appointment therein. He would be
deemed to be· in temporary service only. Even where a
temporary post is made permanent, the same by itself does
not render the employment permanent and, thus, temporary
C employee continues to remain on temporary service. Until a
declaration is made under the relevant rules, he cannot be
deemed to be in a quasi permanent service or absorbed
permanently in Government service. [See Arundhati Ajit
Pargaonkar v, State of Maharashtra & Ors., AIR (1995) SC
o. 962] ..

6. The legal position in relation to termination of services
of temporary employees is, thus, to a substantial exterit, similar
to that of a probationer, as such an employee has no right to
E the post except in cases where the same is arbitrary in nature.

7. Indisputably, however, despite expiry of a period of six
months from the date of their respective dates of appointment,
they were allowed to continue in service. It is furthermore not
F disputed that neither their status had been changed nor their
services had been regularized, In fact; so far as the case of
Balwant Singh is concerned, his prayer for regularization of his
services was specifically rejected by the State. ·

8. For better appreciation of the factual matrix of the matter,
G the respective dates of appointment .of the husbands of the
respondents, dates of their death, dates of making demand/
legal notice for benefit of family pension, dates of rejection of
such prayers and the dates of filing of the writ petition may be

H
STATE OF HARYANA & ORS. v. SHAKUNTLA DEVI 71
[S.B. SINHA, J.]

noticed, which are as under : A
Name Date of Date of Date of Date of Date of
appoint- Death making Rejection filing the
ment demand/ of such writ
legal prayer petition
notice for B
Family
Pension
Balwant 5.1.1990 11.12.1994 15.5.2003 6.10.2003 13.12.2003
• Singh

•
I
Karan 3.7.1973 13.12.1977 01.10.2001 28.5.2002 226.5.2003
Singh c
Dharam 24.3.1987 13.7.1989 - 17.11.1989 11.5.2006
Pal

9. The matter relating to grant of family pension is covered
by the Punjab Civil Services Rules Volume II Part I (for short, D
'the Rules'). In terms of the Rules, Family Pension Scheme,
~ 1964 was framed.

The Rules which are relevant for this case, are as under:

"2.4. In the following cases no claim to pension is E
admitted:-

(a) When a Government employee is appointed for a
..... limited time only, or for a specified duty, on the
. completion of which he is to be discharged. F

•
~
(b) When a person is employed temporarily on monthly
wages without specified limit of time or duty; but a
month's notice of discharge should be given to
such a person and his wages must be paid for any
G
period by which such notice falls short of a month .
...
. (c) When a person's whole-time is not retained for the
public service, but he is merely paid for work done,
such as Government Pleaders and Law Officers not
debarred from private practice . H

.....
72 SUPREME COURT REPORTS [2008] 15 S.C.R.

A (d) When a public servant holds some other
pensionable office, he earns no pension in respect
ofan office of the kind mentioned in clause (c) or
in respect of duties paid for by a compensatory
allowances. ~
B
(e) Wh~n a Government employee serves under an
agreement which contains no stipulation regarding >-- ..,
pension; unless the competent authority specially.· J-
authorizes him to count- such service towards )

pension. }
c \
Note:- The agreements should be so worded as to (
preserve the inviolate and indefeasible right of Government •.
to modify the rules from time to time, at their discretion,
so that no claim may arise to the benefit of the rules as
D they stood at the date when the agreement was executed.

3.12 The service of a Government employee does not
qualify for pension unless it conforms to the following three
conditions :-
E . First - The service must be under Government.

Second - The employment must be substantive and
permanent

Third - The service must be paid by Government.
F
•
I

These three conditions are fully explained in the following
rules.

Note.- The question whether service in a particular office
~-
or department qualifies for pension or not is determined
by rules which were in force at the time such service was
rendered; orders subsequently issued declaring the
service to be non-qualifying, are not applicable with
retrospective effect.
H xxx xxx xxx
STATE OF HARYANA & ORS. v. SHAKUNTLA DEVI 73
[S.B. SINHA, J.]

3.17. In the case of an officer retiring on or after 5th A
January, 1961, if he was holding substantively a permanent
post on the date of his retirement, his temporary or
officiating service under the State Government, followed
without interruption by confirmation in the same or another
post, shall count in full as qualifying service except in B
respect of :-

(i) Period of temporary or officiating service in non-
pensionable establishment.

(ii) Deleted. c
(iii) Period of service paid from contingencies."

Rule 6.16A(2)(b) of the Rules (as applicable to Haryana)
reads as under :
D
"Rule 6.16(2)(b) : The family of a pensionable employee
who dies before completing five years of qualifying service
shall also be eligible for the gratuity equal to six months
employments of a Government employee at the time of his
death except in cases in which death occurs in the first. E
year of service where the gratuity admissible shall be equal
to two months emoluments."

Rule 12.2 of the C.S.R. Vol.I, Part I is reproduced
hereunder:
F
Rule 12.2 : A service book in the form prescribed by the
Comptroller and Auditor-General in Article 188 of Audit
Code (reproduced in Part 11 of Appendix 11) must be
maintained for every employee at the time of First Entry
into Government service has to get himself medically G
examined. The only exception provided is under Rule
3.3.(3) of C.S.R. Vol.No.1, Part I there is no requirement
of medical certificate for those employees who are
appointed on six months basis."
H
74 SUPREME COURT REPORTS [2008] 15 S.C.R.

A 10. The 1964 Scheme was formulated to ·afford further
reliefs stipulated therein to the family of the deceased
employees.

The said scheme carr1e into force with effect from 1st July,
B 1964 and was applicable to all
regular employees on
pensionable establishments. ·

Para 4 and Note 1 of the 1964 Scheme read as under :

"4. This scheme is administered as below:-
c
(i) The family pension is admissible in case of death while
in service or after retirement on or afier the 1st July, 1964,
if at the time of death, the retired officer was in receipt of
a compensation, invalid, retiring or superannuation
pension. The Family Pension will not be admissible in
D
case of death after retirement if the retired employee at
the time of death was in receipt of gratuity only. In case of
death while in service a Government employee should
have 'completed a minimum period of one year of
continuous service without break.
E
Note 1.- The term one year continuous service used in
para-4(i) above is inclusive of permanent/temporary
service in a pensionable establishment but does not
include periods of extraordinary leaves, boy service and
F suspension period unless that is regularized by the
competent authority or before completion of one year
continuous service provided the deceased Government
employee concerned immediately prior to his recruitment
to the service or post was examined by the appropriate
G Medical Authority and declared fit by that authority for
· Government service."

11. The High Court delivered the main judgment in Rama
Devi's case.

H It noticed the relevant dates, the terms of appointment as
STATE OF HARYANA & ORS. v. SHAKUNTLA DEVI 75
[S.B. SINHA, J.]

also the relevant rules. It, in its judgment, took intc consideration A
the decision of this Court in S.K. Mastan Bee. v. The General
Manager, South Central Railway & Anr., [2003] 1 SCC 184
as also the decisions of the High Court of Punjab and Haryana
including the decision of Kanta Devi v. State of Haryana,
(2000) 2 SCT 32. The High Court opined that having regard to B
the paragraph 4 of the Scheme (wrongly stated to be Rule 4)
as also Note 1 appended thereto, any employee who has
completed more than one year's service would become eligible
for grant of family pension. In arriving at the said decision, it
furthermore took into consideration the fact that for the said c
purpose, it was not necessary that the concerned employees
should have been appointed on a permanent or a temporary
post.

12. Mr. Patwalia, learned senior counsel appearing on
behalf of the appellant, would submit that the High Court D
committed a serious error in arriving at the said finding insofar
as it failed to take into consideration the import and purport of
the rules vis-a-vis the scheme. It was contended that in terms
of Rule 3.12, for becoming eligible for grant of family pension,
it was necessary that the employment was to be substantive E
and permanent in nature as explained in Rule 3.17, which
means that the employee should be holding substantively a
permanent post on the date of his retirement, temporary or
officiating service under the State Government, followed without
interruption by confirmation in the same or another post and in F
view of the fact that the employees were not appointed on a
substantive basis, the claim for grant of family pension could
not have been allowed. It was furthermore urged that in any
event as the concerned employees were appointed for a
limited period as envisaged under clause (a) of Rule 2.4, the G
impugned judgments cannot be sustained.

13. Ms. Shikha Roy, Pabbi and Mr. Prem Malhotra, learned
counsel appearing on behalf of Shankuntla Devi and Rama
Devi, on the other hand, would contend ttiat for the purpose of H
76 SUPREME COURT REPORTS [2008] 15 S.C.R.

A grant of family pension in terms of the scheme, it was not
essential that the appointees should have been regularized in
their respective services .. Drawing our attention to the terms
of appointment, it was contended that as the employees were
appointed on temporary basis and they having been in service
B admittedly for a period of more than one year, pc.yment of family
pension was legally permissible.

What was only necessary, according to the learned
counsel, was one year's service without break as would appear
C from paragraph 4 of the Scheme read with note thereto. It was
urged that Rule 3.17 of the Rules would apply only in a case of
retirement and not in a case of death. It was furthermore
contended that as the service records of the concerned
employees were being maintained and they have· been asked
to file medical certificate(s) at the time of appointment, they
D were in effect and substance appointed against a permanent
vacancy on a temporary basis and not on an ad hoc basis for
a period of six months as contended by the appellant .

The Rules, as applicable to the State of Haryana, were
E framed in terms of the 'Proviso' appended to Article 309 of the
Constitution of India. Volume I, Part I of the said Rules provides
for the main rules whereas Part 11 thereof contains appendices
and forms. Volume II of the Rules relate to 'Pension and
Provident Fund': The said Rules having been framed under
F 'Proviso' to Article 309 of the Constitution of India evidently
apply to the Government employees. The Government
employees having regard to the said Constitutional provision
enjoy a 'status'. Their appointment must be made in terms of
appropriate recruitment rules and upon compliance of the
G equality clauses contained in Articles 14 and 16 of the
Constitution of India.

14. The provisions contained in Volume II of the Rules apply
to those Government employees to whom the Rules in Volume
I thereof apply. Rule 1.2 read as under:
H
STATE OF HARYANA & ORS. v. SHAKUNTLA DEVI 77
~
[S.B. SINHA, J.]

"1.2. Except as otherwise provided in rule 1.4 Infra or in A
any other rule or rules, these rules shall apply to all
Government employees belonging to the categories
mentioned below, who are under the administrative control
of-the Haryana Government and whose pay is debitable
to the Consolidated Fund of the State of Haryana :- B
(1) Members of State Services, Classes I and II;

(2) Members of State Services, Class Ill;

(3) Members of State Services, Class IV; c
(4) Holders of Speci_al Posts; and

(5) Any other Government employee or lass of
I
Government employees to whom the competent
authority may, by general or special order, make D
them applicable."

15. We may, therefore, at the outset, notice the.definitions
contained in the Rules.

It is trite that each Government employee should be borne E
in their respective cadre, 'Cadre' having been defined to mean
the strength of a service or a part of service sanctioned as a
separate unit.

'Active service' has been defined in Rule 2.3 to mean: F

"2.3. Active Service, for the purpose of pension, includes
besides time spent on duty in India :-

(i) Leave of all kinds except extraordinary leave not
counting towards increment under rule 4.9(b)(ii); G

(ii) Time spent on the voyage to India by a Government
employee who is recalled to duty before the expiry
of any recognized leave out of India : provides his
return to duty is compulsory. H
78 SUPREME COURT REPORTS [2008] 15 S.C.R.
';-

A (iii) The period of absence from India of a Government.
employee deputed or detained out of India on duty.".: .
'
16. In terms of Rule 1.3 of Vol.ume II of the· Rules, the terms
. defined in .Chapter II of Volume I of the rules have, Linle~s there ·
is anything repugnant in the subject or context, the same
B
meaning and implications ,when used in Chapter II Volume I.
·t-
17. Rule 2.1 states that every pension shall be held to have
been granted subject to the conditions contained in Chapter VII
of the rules. Clause 2.6 provides for claims of widows or heirs,
c stating:

"If a Government employee dies before actually retiring or
being discharged, his heirs have no claim to anything in
respect of his pension except as provided in rules 6.16-
o· A to 6.16-C." f .·.,
18. Clause 3.12 occurring in Chapte.r Ill provides for
'Conditions of Qualifications' which are; firstly, the service must
be under Government; secondly, the employment must be
substantive and permanent; and thirdly, the service must be paid
E by the Government.

19. The second qualification, namely, what would be meant
by substantive and permanent employment has been explained
in Rule 3.17 which, as noticed hereinbefore, means that the
...
F employee must be holding substantively a permanent post on
the date of his retirement, his temporary or officiating service
under the State Government.

20. Family PensionScheme was formulated to afford
further relief to the family of the deceased Government
G employees, i.e. something more than what was contemplated
in the Rules. The same, however, would not mean that the
dependents of those employees who were otherwise not eligible
jl.-
in terms of the Rules would get the benefit thereunder. In other ·
words, the eligibility clause must be satisfied so as to enable
H the dependent of a Government employee to obtain the said
STATE OF HARYANA & ORS. v. SHAKUNTLA DEVI 79
[S.B. SINHA, J.]

benefit. A
The 1964 Scheme is subject to Part II of the Rules. Rules
contained in Part II are subject to Part I, which in turn would be
subject to the constitutional provisions. Thus,· before a person
can be said to have been acquired a right to obtain the benefits
8
of 1964 Family Pension Scheme must satisfy the eligibility as
--1 envisaged under the Rules. Family pension can be granted to
the dependent of the deceased Government employee under
the Family Pension Scheme only by way of a further relief and
not by independent of the main Pension Rules. In other words, C
if a person was not a Government employee, the question of
his dependent becoming entitled to the benefits of family
pension scheme would not arise.

21. The primary question, therefore, is who would be a
Government employee within the meaning of the said scheme. D

We will advert to this a little later. The second question
would be, can the scheme be read independent of the Rules.

Answer thereto must be rendered in the negative. We say
so because in terms of the Rules, the following conditions E
precedent must be fulfilled before the benefit of family pension
can be extended:

1. The employee must be a Government employee.
F
2. He must be employed in a pensionable
establishment.

3. He must have become eligible to derive the benefit
thereof.
G
22. Chapter II of Volume II of the Rules provides for different
provisions relating to grant of pension. The distinction between
a pensionable establishment and a provident fund establishment
must, therefore, be borne in mind. Pension although is not a
bounty, t~e entitlement thereto is only under a statute. Only when H
80 SUPREME COURT REPORTS [2008) 15 S.C.R.

A ·the conditions precedent provided for in the statute are fulfilled,.
an employee would be entitled thereto.

23. We would begin our discussions with the status of an
employee. A Government employee enjoying a status
indisputably must be recruited in accordance with Rules. The
B
offers of appointment made in favour of the employees in no
uncertain terms show that they were appointed on an ad hoc
basis. The appointment was not regular, although in relation to
the case o~ Balwant Singh, the names were said to have been
.f' called for from the Employment Exchange. Nothing has been
c placed on record to show as to what was the cadre strength in
'ii·
the posts to which they were appointed.

No material has been brought on records to show that the
equality clause contained in Articles 14 and 16 had been
D complied with: Any recruitment made in violation of the (
constitutional scheme, as adumbrated therein as also the
recruitment rules framed by the State would render the same
illegal and invalid.

24. The very fact that a regularization scheme was framed
E
by the State is a clear pointer to show that the concerned
employees were not regularly employed. They had sought for
regularization of their service and at least in one case, as
noticed hereinbefore, for one reason or the other, the said
request was turned down. The validity thereof was not
>-
F questioned. It attained finality.

In the case of Rama Devi, a contention was raised in the
wri_t petition that the offer of appointment in law was not for a
period of six months but for· an indefinite period. Such a
G contention cannot be upheld. If the initial appointment was for
a fixed period and the appointment could be terminated without
any notice and without assigning any reason, such appointment
cannot be said to be an appointment on a permanent post or
a temporary sanctioried post.Unless and until the post itself is
H a permanent or a temporary one, the same would not answer
....(

STATE OF HARYANA & ORS. v. SHAKUNTLA DEVI 81
_; [S.S. SINHA, J.]
'
the description of a substantive and permanent employment. A
In this case, it had been shown that the services of Karan Singh
was being renewed for a period of six months on the expiry of
the original or extended tenure.

25. Clause 3.17 of the Rules in no uncertain term explains B
as to what is meant by substantive and permanent employment. .

The contention of the counsel that it applies only to a
person who has retired is not correct because holding of a
substantive permanent post on the date of retirement is followed
by the words his temporary or officiating service under the State c
Government.

Confirmation in service, therefore, whether before
retirement or before death must be held to be sine qua non
for becoming eligible for grant of pension. Only when an D
employee renders service in a pensionable service, he would
be entitled to pension.

Only by reason of fulfillment of the conditions laid down
under the contract of service and/or the statutory rules governing
the same, a person can become a full fledged Government E
employee. When the terms and conditions of services are
governed by a statute or statutory rules, no doubt the same
would prevail over the contract of employment but then for the
said purpose, the concerned employee must show that the
appointment was regular in nature and on a post which is a F
cadre post. The Government employee acquires status only
when he becomes entitled thereto by reason of a statute or by
his employer declaring him to be entitled therefor.

26. When a regularization scheme was framed (assuming - G
.1 that such a scheme is valid and constitutional) the employee
must be regularized. At least he must acquire a right to be
. regularized in service .
• 27. In M.P. Vidyut Karamchari Sangh v. M.P. Electricity
Board, [2004] 9 sec 755, this Court was considering a case H
82 SUPREME COURT REPORTS [2008] 15 S.C.R.
';-

A where there existed a conflict between a statutory regulation
made under Section 79(c) of the Electricity Supply Act, 1948
and Certified Standing Order or a rule made under the M.P.
Industrial Employment (Standing Order) Act, 1961, to hold :

"42. It is one thing to say that when there exists a conflict
B
between a regulation made under Section 79(c) of the Act
and a certified standing order or a rule made under the
1961 Act, the latter shall prevail; but it is another thing to
. say that in absence of any statutory provision governing
the age of retirement, the statutory regulations framed by
c the respondent Board shall have no application. It is not
in dispute that the impugned notification dated 26.12.2000
had been issued by the Board in exercise of its power
under Section 79(c) of Electricity Supply Act. Section 15
of the Act empowers the Board to appoint a Secretary and
D such other officers as may be required to enable the Board
to carry out its functions. Section 79(c) empowers the
Board to make regulations inter alia as regard the duties
of officers and other employees of the Board, and their
salaries, allowances and other conditions of service. The
E Board, therefore, was empowered to make regulations
which are not inconsistent with the provisions of the Act
and the Rules providing for the duties of officers, their
salaries, allowances and other conditions of service.
.>--.

F 43. The power of the Board, therefore, to lay down the
conditions of service of its employees either in terms of
regulation or otherwise would be subject only to any valid
law to the contrary operating in the field. Agreement within
the meani. 1g of proviso appended to ~ule 14A is not a law
and, thus, the regulations made by the Board shall prevail
G
thereover." 11111
>- )

Yet again in Mahendra L. Jain & Ors. v. Indore
Development Authority & Ors., [2005] 1 SCC 639, it was held:

H "33. For the purpose of this matter, we would proceed on
STATE OF HARYANA & ORS. v. SHAKUNTLA DEVI 83
[S.S. SINHA, J.]

the basis that the 1961 Act is a special statute. vis-a-vis A
the 1973 Act and the rules framed thereunder. But in
absence of any conflict in the provisions of the said Act,
the conditions of service including those relating to
recruitment as provided for in the 1973 Act and the 1987
Rules would apply. If by reason of the latter, the appointment B
is invalid, the same cannot be validated by taking recourse
to regularization. For the purpose of regularization which
would confer on the concerned employee a permanent
status, there must exist a post. However, we may hasten
to add that regularization itself does not imply permanency. c
We have used the term keeping in view the provisions of
1963 Rules."

It was also held therein that :

"38. In A Umarani (supra), this Court held that once the D
employees are employed for the purpose of the scheme,
they do not acquire any vested right to continue after the
project is over [See paras 41 and 43]. [See also Kamataka
State Coop. Apex Bank Ltd. v. Y.S. Shetty and Ors.,
[2000] 10 SCC 179 and M.D. U.P. Land Development E
Corporation and Anr. v. Amar Singh and Ors., [2003] 5
sec 388]."

In M.P. Housing Board & Anr. v. Manoj Shrivastava,
[2006] 2 SCC 702 this Court followed the decision in M.P.
Electricity Board to hold : F

"15. A daily-wager does not hold a post unless he is
appointed in terms of the Act and the rules framed
thereunder. He does not derive any legal right in relation
fuere~. G
It was furthermore opined :

"19. The appointment made by a person who has no
authority therefor would be void. A fortiori an appointment
made in violation of the mandatory provisions of the statute H
84 SUPREME COURT REPORTS [2008] 15 S.C.R.

A or constitutional obligation shall also be void. If no
appointment could be made in terms of the statute, such
appointment being not within the purview of the provisions
of the Act would be void; he cannot be brought within the
cadre of permanent employees. The definitions of
B 'permanent employee' and 'temporary employee' as
contained in the rules must, thus, be. construed having
regard to the object and purport sought to be achieved by . \i-o
· the Act."· · · ·· · · · -·

28. With the aforementioned legal principles in mind, we
C may analyse the provisions of the scheme.

The scheme in terms of paragraph 3 is applicable to all
regular employees in pensionable establishment, temporary or
permanent who were in service. Thus, whether temporary or
D permanent, the employee must be regular employee which
a
.·would mean employee appointed on regular basis, i.e., in
accordance with Rules. Only because services of ad hoc
employees were continued, the same would not mean that
thereby his status has been changed. It will bear repetition to
E state that status of an employee can change either by reason
of a contract or by reason of a statute. Nothing has been shown
to us that the concerned employees either under the contracts
of service or under any statute or statutory rules became regular
employees of the State.
F If the scheme did not apply to the respondents, the
provisions as to how the scheme would be administered are
not of any significance.

29. The contention that the family of an employee would
G be entitled to the benefit of family pension in the case of the
death of Government employee, if he had completed a
minimum period of one year continuous service without break
cannot be accepted. As stated hereinbefore, an employee must
be a Government employee at the first instance. He must be
H working in ·a pensionable scheme. He, only in that capacity,
- STATE OF HARYANA & ORS. v. SHAKUNTLA DEVI 85
[S.S. SINHA, J.]

should have completed a minimum period of one year of A
continuous service without break which would mean that he
must be a temporary or permanent employee.

30. It is one thing to say that a person was appointed on
a temporary post on a regular basis but it is another thing to
8
say that an appointment was ad hoc in nature on a temporary
basis. Whereas in the former case, the appointment must be
carried out in accordance with law, in the later, it may not be.

From a perusal of the offers of appointment, as noticed
hereinbefore, it is evident that the appointments of the C
. concerned employees were made for a period of six months
or till a regular appointment was made. The very fact that the
posts were to be filled up on regular basis by the competent
authority clearly goes to show that the nature of appointment
of the said persons was ad hoc one. · o
31 . It may be that on the expiry of six months, the services
were allowed to continue but the same would not, in absence
·of any statutory interdict, mean that the ad hoc employee
ceased to be so and acquired the status of a permanent or
temporary employee. E

Reliance placed on Note 1 of paragraph 4 is not apposite.
What is sought to be explained by Note 1 is the exclusion of
the periods which shall not be counted towards one year's
continuous service. It by itself does not create any new right. F

In Punjab State Electricity Board Ltd. v. Zora Singh and
Ors., (2005] 6 SCC 776, this Court held:

"22. The administrative circulars as thence existed as also
the regulations indisputably require supply of electrical G
energy to the agriculturists within a period of two months
from the date of receipt of the amount asked for in terms
of the demand notice. It may be true that the note
appended thereto provides that the period specified
therein shall be subject to availability of requisite material H
86 SUPREME COURT REPORTS [2008] 15 S.C.R.

A but the same does not absolve the appellant from
performing its statutory duties.

23. In A.P. SRTC v. STAT a Full Bench of the Andhra
Pradesh High Court has noticed thus: (An LT p.544, para
31)
B
"31 [24 ]. The meaning of 'note' as per P. Ramanatha
Aiyar's Law Lexicon, 1997 Edn. is 'a brief statement of >--
.· pa_rticulars of some fact', a passage or explanation."

24. The note, therefore, was merely explanatory in nature
and thereby the rigour of the main provision was not
diluted."

Therefore, reliance on paragraph 4 of the scheme and
Note .1 appended thereto by the High Court, in our opinion is
D misplaced.

32. Submission of the learned counsel that the names of
the concerned employees were being maintained in the records
of the State are not denied and disputed may now be
E examined. The same, in our opinion, in the facts and
circumstances of this case, are wholly immaterial. Even
assuming for the sake of argument that they are correct, the
same would not confer any legal right on him thereby, to which
he was not otherwise entitled to.
F 33. It has categorically been stated that husbands of the
respective· respondents were not a regular Government
employees till their death and, thus, the Family Pension Scheme
was not applicable in their cases.

G 34. The question although not directly but to some extent
has been considered in Uttar Haryana Bijli Vitran Nigam Ltd.
& Ors. v. Surji Devi, (2008) 1 SCALE 570, wherein it was held:

"14. The scheme relating to grant of Family Pension was
made under a statute. A person would be entitled to the
H
STATE OF HARYANA & ORS. v. SHAKUNTLA DEVI 87
-!, [S.B. SINHA, J.]

benefit thereof subject to the statutory interdicts. From a A
bare perusal of the provisions contained in the Punjab Civil
Services Rules, Volume 2 vis-a-vis the Family Pension
Scheme, it would be evident that the respondent was not
entitled to the grant of any family pension. Husband of the
respondent was a work-charge employee. His services B
had never been regularized. It may be unfortunate that he
had worked for 11 years. He expired before he could get
the benefit of the regularization scheme but sentiments and
sympathy alone cannot be a ground for taking a view
different from what is permissible in law. [See Maruti c
Udyod Ltd. v. Ram Lal and Ors., [2005] 2 SCC 638, State
of Bihar & Ors. v. Amrendra Kumar Mishra, (2006) 9
SCALE 549, Regional Manager, SB/ v. Mahatma Mishra,
(2006) 11 SCALE 258, State of Karnataka v. Ameerbi &
Ors., (2006) 13 SCALE 319 and State of M. P. and Ors. v.
D
' Sanjay Kumar Pathak and Ors., (2007) 12 SCALE 72]

They statutory provisions, as noticed hereinbefore, debar
grant of family pension in favour of the family members as
the deceased employee if was a work-charge employee
and not a permanent employee or temporary employee. E
The period during which an employee worked as a work-
charge employee could be taken into consideration only
when his services are regularized and he becomes
.....
permanent and not otherwise."
F
The observations made therein apply to the facts of the
present case also.

35. For the reasons aforementioned, the impugned
judgments cannot be sustained. The same are set aside
accordingly. Appeals are allowed. However, in the facts and G
circumstances of the case, there shall be no order as to costs.

RP. Appeals allowed.