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Himachal Pradesh High Court · body

2011 DIGILAW 2527 (HP)

Kamlesh Mamgain v. H. P. S. E. B.

2011-11-03

SURJIT SINGH

body2011
JUDGEMENT Surjit Singh, Judge(Oral) Petitioner is one of the two wives of Dinesh Mamgain, who was an employee of the State Electricity Board and on account of whose death, family pension is payable to his family members. Said Dinesh Mamgain had a daughter from a pre-deceased wife. She has been impleaded as respondent No.3, in the present petition. When family pension was sanctioned, initially, respondent No.3 Jaya Mamgain was less than 25 years of age and so 50% of the family pension was made payable to her and the remaining 50% to the present petitioner. It was by virtue of the provision of Rule 54(7)(b) of the CCS Pension Rules. Respondent No.3 attained the age of 25 years on 21st February, 2007 and because of that she ceased to be eligible to receive pension, in view of the provision of Rule 54(6)(iii) of the CCS Pension Rules. Her share of pension was made payable to the petitioner, she being the only eligible surviving widow of the deceased. 2. On 22nd December, 2009, order copy Annexure P-4 was issued by respondent No.2 that full pension, authorized in favour of the petitioner, be not released.Petitioner made representation, on 7th January, 2010, copy Annexure P-5. She was informed vide Annexure P-6, which is dated 16th March, 2010, that clarification is being sought from the Competent Authority. Thereafter, representation dated 8th April, 2010, copy Annexure P-7, was made by the petitioner, for payment of full pension to her. No action had been taken till the petitioner filed the present petition, seeking issuance of a direction to the respondents to restore full pension to her, including the share of respondent No.3. 3.Respondents, in their reply, have stated that by virtue of Government of India, Department of Pen. & P.W.,F.Order No.38/37/08-P&PW(A), dated 2nd September, 2008, Paras 8.1 to 8.6, a daughter is eligible to get pension until she marries or starts earning, irrespective of her age. Also, the respondents have pleaded that 50% of the total amount of family pension has been ordered to be paid to respondent No.3, vide order dated 9th November, 2010, copy Anneuxre RA-VI. 4.I have heard learned counsel for the parties and perused the record, as also the relevant Rules. Also, the respondents have pleaded that 50% of the total amount of family pension has been ordered to be paid to respondent No.3, vide order dated 9th November, 2010, copy Anneuxre RA-VI. 4.I have heard learned counsel for the parties and perused the record, as also the relevant Rules. 5.Submission made on behalf of the petitioner is that as per Rule 54(6)(iii), an unmarried daughter is entitled to pension only upto the age of 25 years or till she is married, whichever is earlier. She submits that respondent No.3, having attained the age of 25 years, has ceased to be entitled to get 50% of the total amount of family pension, which she had been getting, by virtue of the provision of Rule 54(7)(b) of the CCS Pension Rules. What learned counsel for the petitioner submits would have been correct but for a change in the Rules brought about by the Government of India, vide aforesaid Order dated 2nd September, 2008, vide Paras 8.1. to 8.6. 6.As per aforesaid notification, “family” for family pension has been described as follows:“ ‘Family’ for Family Pension.-For the purpose of grant of Family Pension, the ‘Family’ shall be categorized as under: Category-I (a) Widow or widower, up to the date of death or re-marriage, whichever is earlier; (b) Son/daughter (including widowed daughter), up to the date of his/her marriage/re-marriage or till the date he/she starts earning or till the age of 25 years, whichever is the earliest. Category-II (c) Unmarried/ widowed/ divorced daughter, not covered by Category I above, up to the date of marriage/re-marriage or till the date she starts earning or up to the date of death, whichever is earliest. (d) Parents who were wholly dependent on the Government servant when he/she was alive, provided the deceased employee had left behind neither a widow nor a child. Family pension to dependent parents, unmarried/divorced/widowed daughter will continue till the date of death. Family pension to unmarried/widowed/ divorced daughters in Category II and dependent parents shall be payable only after the other eligible family members in Category I have ceased to be eligible to receive family pension and there is no disabled child to receive the family pension. Family pension to dependent parents, unmarried/divorced/widowed daughter will continue till the date of death. Family pension to unmarried/widowed/ divorced daughters in Category II and dependent parents shall be payable only after the other eligible family members in Category I have ceased to be eligible to receive family pension and there is no disabled child to receive the family pension. Grant of family pension to children in respective categories shall be payable in order of their date of birth and younger of them will not be eligible for family pension unless the next above him/her has become ineligible for grant of family pension in that category. Income Criteria.- The dependency criteria for the purpose of family pension shall be the minium family pension along with dearness relief thereon. Childless widow.-The childless widow of a deceased government employee shall continue to be paid family pension even after her remarriage subject to the condition that the family pension shall cease once her independent come from all other sources becomes equal to or higher than the minimum prescribed family pension in the Central Government. The family pensioner in such ceases would be required to give a declaration regarding her income from other sources to the pension disbursing authority every six months. [G.I., Dept. of Pen. & P.W., F. No.38/37/08- P&PW(A), dated the 2nd September, 2008.” This changed provision is to be read alongwith Rule 54(7)(a) & (b), which is reproduced as follows:“54(7)(a)(i) Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares. (ii) On the death of a widow, her share of the family pension shall become payable to her eligible child:Provided that if the widow is not survived by any child, her share of the family pension shall not lapse but shall be payable to the other widows in equal shares, or if there is only one such other widow, in full, to her.(b) Where the deceased Government servant or pensioner is survived by a widow but has left behind eligible child or children from another wife who is not alive, the eligible child or children shall be entitled to the share of family pension which the mother would have received if she had been alive at the time of the death of the Government servant or pensioner. Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares shall not lapse, but shall be payable to the other widow or widows and/or to the other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child.” 7.From a reading of the definition of “family”, as reproduced hereinabove and introduced vide decision dated 2nd September, 2008, it is clear that an unmarried daughter has been made eligible for pension till she starts earning upto the date of her death. An unmarried daughter of a deceased widow of the concerned government servant gets the pension alongwith the surviving widow(s) of the government servant. 8.Learned counsel, representing the petitioner, submits that an unmarried daughter spoken of in Category II of the aforesaid order dated 2nd Spetember, 2008, cannot get pension, when an eligible person mentioned in Category I is there. She supports her submission by unnumbered para-2 below Category II (b). This para is to be read alongwith Rule 54(7)(b) of the CCS (Pension) Rules, which says that sons/daughters of a deceased wife of the Government servant shall be paid their mother’s share, which she would have got had she been alive, simultaneously with a living widow or widows, if there are more than one. An unmarried daughter, who is not earning, is eligible for pension, per clause (d) of Category II. Admittedly, respondent No.3 has yet not started earning and is also unmarried. Therefore, she is entitled to half of the total amount of family pension, payable on account of death of her father. 9.In view of the abovestated position, action of the respondents and the order of restoration of half of the family pension in favour of respondent No.3 cannot be said to be illegal. Hence, the petition is dismissed.Pending application also stands disposed of.