Research › Search › Judgment

J&K High Court · body

2012 DIGILAW 154 (JK)

Daya Ram Sharma and ors v. U. O. I. and Ors.

2012-04-10

MUZAFFAR HUSSAIN ATTAR

body2012
One Desraj, Rifleman in the 38th Assam Rifles, while still in service, died on 15th September, 2003. He left behind his old parents and a widow. The family pension was sanctioned in favour of the widow in terms of CCS (Pension Rules), 1972 (for short Rules of 1972 ). The parents in terms of Rule 54(21)(a) were included in the definition of the family w.e.f 1st January, 1996. Respondent issued an order sanctioning family pension in favour of the widow of the deceased Rifleman. An information was given to respondents that widow has remarried. The matter was enquired into and it was found that widow has remarried. Accordingly, order was issued for stopping of the family pension in favour of the widow. The petitioners, who are parents of the deceased rifleman, applied for grant of family pension which was rejected in terms of order dated 20.10.2005, which order is called in question in the writ petition. Respondent have filed the counter affidavit in which two main objections have been raised about the maintainability of the writ petition viz. that the cause of action has accrued at Assam so this Court is lacking jurisdiction to entertain and hear this petition and that the order sanctioning pension in favour of the widow having been issued, petitioners are not entitled to receive the family pension. Learned counsel for the petitioners, while referring to the Rule 54(21) of Rules of 1972, submitted that in terms of Rules 54(21)(b) widow having been remarried, has lost the right to receive the family pension. Learned counsel submitted that the petitioners, who were wholly dependent upon the deceased Rifleman when he was alive, would thus be entitled to receive the family pension. Learned counsel for he respondents while referring to the Rule 54(21)(a)(b) of Rules of 1972, submitted that family pension having once been sanctioned in favour of the widow of the deceased Rifleman, family pension cannot be ordered to be paid to the petitioners. Learned counsel submitted that this court is lacking jurisdiction to entertain to hear this petition. Rule 54(21)(a)(b) of Rules of 1972 are taken note of: 21. Learned counsel submitted that this court is lacking jurisdiction to entertain to hear this petition. Rule 54(21)(a)(b) of Rules of 1972 are taken note of: 21. Dependent parents and widowed/divorced daughter also included in the definition of family from 1.1.1996.- For the purpose of grant of Family Pension, the definition of Family shall also include: a. 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. b. Son/daughter including wodowed/divorced till he/she attains the age of 25 years or up to the date of his/her marriage/remarriage, whichever is earlier. An employer in a State governed by rule of law and recognizing the basic human rights being guaranteed in the shape of Constitutional rights, is duty bound to provide succor and source of sustenance to those dependent families members, who because of untimely death of the employee are stripped-off the same. Providing family pension has a definite purpose. It is neither a concession nor a bounty which is given to the dependent of the deceased employee. An employee who has rendered service and who dies while in service or even in the case of his attaining superannuation is entitled to receive the these benefits for rendering service. In the case of untimely death of an employee the situation for the family member which, even, include parents would become worse because they are deprived of source of sustenance. In such circumstances dependants of the deceased employee would literally totter at the blink of starvation if no assistance is provided to them. The family pension rules in the aforementioned background are beneficial in their context, tone and tenor are to be interpreted in a manner which would advance purpose underlying such rules. Till 31st December, 1995 the parents were not included in the definition of family and were not thus eligible for being considered for being paid family pension. The competent authority after considering the issue in broader perspective ordered for inclusion of parents who were wholly dependant on the government servant when he/she was alive for being entitled to receive the family pension. However, in view of the aforementioned rule, the parents would be entitled to receive the family pension, provided the deceased employee had left behind neither widow nor a child. However, in view of the aforementioned rule, the parents would be entitled to receive the family pension, provided the deceased employee had left behind neither widow nor a child. Admittedly in this case the widow was left behind and order sanctioning family pension was passed in her favour. It is also admitted that widow has remarried and respondents have stopped the payment of family pension to her. It is not brought to the notice of the Court that widow has challenged the action of the respondents in not paying the pension to her. Rules 54(21)(a) provides for payment of family pension to the parents of the Government servant but for that it has to be shown that parents were wholly dependent on the Government servant when he/she was alive. The contention of the learned counsel for the respondents is that when once the order has been passed sanctioning family pension in favour of the widow no second order can be passed, cannot be accepted for the following reasons: a. The concept of payment of family pension is to enable the dependant of the deceased Government employee to sustain themselves. The family pension is not one time grant or concession. The term family pension has a definite concept in service jurisprudence and even in human life. Assume a situation that family pension has been wrongly sanctioned in favour of one person, would it mean that the authorities thereafter cannot pass fresh order for sanctioning pension in favour of eligible persons. Such a situation cannot be countenanced in law. The family pension is a permanent feature and is to be paid to eligible persons in accordance with rules. The respondents having stopped the family pension to the widow on the ground of her remarriage, whether such action is right or wrong cannot be commented upon as that is not an issue in these proceedings but definitely parents of the deceased employee who have stated in this writ petition that they were dependant upon the deceased when he was alive, definitely would entitled to receive the family pension in accordance with aforementioned rules. Any other interpretation placed on the rule would defeat very purpose under lying the said rule. Family pension is like a continuous stream of water. Any other interpretation placed on the rule would defeat very purpose under lying the said rule. Family pension is like a continuous stream of water. At one point of time one person is authorized to use it and at another point of time he ceases to have authority to use it, would mean that no other person, who is, otherwise, authorized to use the stream, can be permitted to take benefit of it, as the earlier person has because of some disability stopped to use it. The benefit of family pension, like a flowing stream has to be given to the named person and cannot be denied on the ground that one category of beneficiary being disabled to use it, so other category will have no right to use the benefits, cannot be countenanced in law. b. The Rule provides that parents are entitled to receive the family pension in accordance with mandate contained in the rule. They are first category of beneficiaries. The moment widow, for any legal disability is not paid family pension, the parents in accordance with rule would be entitled to receive it. The contention of the learned counsel for the respondent that this court is lacking jurisdiction cannot be accepted as the order of rejection has been received by the petitioners at Jammu and thus cause of action has accrued to them within the territorial jurisdiction of this Court. This court thus has jurisdiction to entertain and hear this petition. For the above stated reasons this petition is disposed of along with all connected CMP(s) in the following manner: a. By issuance of writ of Certiorari, Order No. FP/2201603/22AR-1663/2003/NE-III dated 20.10.2005 whereunder the claim of the petitioners for grant of family pension has been rejected is quashed. b. Respondents are directed to consider the claim of the petitioner and accord sanction for payment of family pension in their favour in light of observation made in this order. Respondents to consider and take a decision within a period of eight weeks from the date copy of this order is served upon them. Disposed of along with all connected CMP(s).