1995 INSC 1045
                             State of Gujarat Through Chief Secretary and Others

                                                           Vs

                                                     Savitri Devi

                                         Civil Appeal No. 11662 of 1995

                                       (K. Ramaswamy, B. L. Hansaria JJ)

                                                      27.11.1995

                                                        ORDER

1. Leave granted.

2. Lal Singh, son of the respondent who died in harness, had worked as a 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 1987, the respondent laid the
suit in the Court of Additional Senior Sub-Judge, Mohindergarh, Haryana State claiming family
pension. The trial 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 of 1994 by an order dated 17-12-1994 dismissed it, as usual, in limine.
Thus this appeal by special leave.

3. Two questions have been raised in this appeal. First relates to the 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
appellants' 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 consent to 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.

4. The next question is whether the 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 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 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 life to the widow of the
                  deceased government servant as detailed."

'Family' has been defined in Rule 3 of the Rules :
                  "'Family' for purposes of this scheme will include the following relatives of the
                  government servant :

                  (a) wife, in the case of a male government servant;

                  (b) husband, in the case of the female government servant;

                  (c) minor sons; and

                  (d) unmarried or minor daughters.

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

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

5. 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 government servant and minor sons and unmarried or minor daughter. In the case of the
children, legally adopted children, before retirement/death also 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 widow Savitri Devi was not given pension
after her remarriage in 1976.

6. The question is whether mother is a dependant. In view of the 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 the trial court as affirmed by the appellate court and second appeal, are clearly
illegal.

7. It is stated that the mother-respondent is an 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 the appellant-State to pay a
sum of Rs. 6000 to the appellant as ex gratia.

8. Accordingly, the decree of the court below is set aside. It is directed that the State is 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 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 disbursed to the address so stated.
The appeal is disposed of. No costs.