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2013 DIGILAW 581 (MP)

Ankita Sailor (Ku. ) v. Meera Devi

2013-05-02

D.K.Paliwal, S.K.Gangele

body2013
ORDER 1. Heard on I.A.No.1594 of 2012, an application filed on behalf of appellants for condonation of delay. 2. Considering the reasons assigned in the application, the said I. A. is allowed and delay of 327 days in filing this appeal is hereby condoned. 3. Heard. 4. This writ appeal has been filed by the appellants against the order dated 23.2.2011 passed by learned Single Judge in Writ Petition No.4637/2010(S). 5. Deceased -Shri Ashok Kumar Sailor died when he was working as Teacher. Initially, he had married Smt. Sharada Devi. She died. From their wedlock, appellants, namely, Ku. Ankita Sailor and Ku. Mona Sailor were born. Subsequently, after death of Smt. Sharada Devi, Shri Ashok Kumar Sailor was married with Smt. Meera Devi (herein respondent No.1). From their wedlock, two children were born, namely, Kumari Ashmita and Shivam Sailor. After death of Shri Ashok Kumar Sailor, existing wife- respondent No.1 submitted an application before the authority for grant of family pension. When that was not decided, she filed a petition i.e. Writ Petition No.4637/2010(S) before this Court. The learned Single Judge vide order dated 23.2.2011, disposed of the aforesaid writ petition with the following direction:- “ Considering this fact, it is just and proper to direct the respondents to settle the claim of the petitioner who is legally married wife of late Shri Ashok Kumar Sailer within a period of six weeks from the date of filing of certified copy of the order.” 6. In the aforesaid writ petition, the present appellants were not party. When the present appellants came to know about the passing of the order, they filed the present appeal. 7. It is contended on behalf of the appellants that the appellants are legitimate daughters of deceased Shri Ashok Kumar Sailor and they have also a right to receive family pension and this fact has not been considered by the learned writ Court. 8. Although the appellants were not made party before the writ Court, however, the appellants claimed that they are entitled to receive family pension on the basis of provisions contained in Rule 47(7) of Madhya Pradesh Civil Services (Pension) Rules, 1976 [hereinafter referred to as ‘’the Pension Rules of 1976”]. Hence, in our opinion, the appeal filed by the appellants is maintainable. 9. Hence, in our opinion, the appeal filed by the appellants is maintainable. 9. The main question for consideration of this appeal is whether the appellants are eligible to receive family pension of their father in accordance with Rule 47(7) of the Pension Rules of 1976. It is a fact that deceased -Shri Ashok Kumar Sailor in his nomination in accordance with Rule 5 (6) in Form “E” nominated respondent No.1 Smt. Meera Devi as ‘‘nominee’’ to receive family pension. 10. Rule 47(7)(b) of the Pension Rules of 1976 prescribes about the payment of pension to the children from another wife who is not alive. The relevant Rule is as under:- “(b). Where the deceased Government servant or pensioner is survived 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 death of Government servant or pensioner.” 11. In accordance with the aforesaid Rule, if the Government servant or pensioner is survived 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. 12. Rule 47(7)(a)(i) of the Pension Rules of 1976 shows that “Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares.” 13. Rule 47(7)(a)(ii) of the Pension Rules of 1976 shows that “On the death of a widow, her share of family pension shall be become payable to her eligible child” 14. In accordance with the aforesaid Rule 47(7)(a)(i) and Rule 47(7)(a)(ii) of the Rules of 1976, appellants are eligible to receive family pension in equal proportionate to respondent No.1 i.e. Smt. Meera Devi. The respondent No.1 is eligible to receive 50% family pension and both the appellants, namely, Ku. Ankita Sailor and Ku. Mona Sailor, are eligible to receive 25% family pension each [total 50% family pension]. 15. Learned counsel for the respondent No.1 has submitted that the deceased- employee nominated the respondent No.1 Smt. Meera Devi as ‘‘nominee” in the Nomination Form to receive family pension. Ankita Sailor and Ku. Mona Sailor, are eligible to receive 25% family pension each [total 50% family pension]. 15. Learned counsel for the respondent No.1 has submitted that the deceased- employee nominated the respondent No.1 Smt. Meera Devi as ‘‘nominee” in the Nomination Form to receive family pension. The aforesaid point has been considered by Hon’ble the Supreme Court in the case of G.L.Bhatia v. Union of India and another (1999) 5 SCC 237 , which has been quoted by this Court in the case of Girija Bai W/o. Raghuwar Dayal v. State of MP; 2008 (3) MPLJ 407 . Hon’ble the Supreme Court in the case of G. L.Bhatia (supra) in regard to grant of family pension has held as under :- “2. The sole question that arises for consideration in this appeal is whether the appellant, who happens to be the husband of the deceased Government servant, is entitled to family pension under the provisions of the Central Civil Services (Pension) Rules (for short ‘’the Rules’’) notwithstanding the fact that the deceased wife in her nomination did not include the husband. The forums below have taken the view agreeing with the authorities that since the nomination was not in favour of the husband and the husband was staying separate from the wife, the husband would not be entitled to family pension in question. This view cannot be sustained in view of the provisions contained in Rule 54 of the Rules. It is too well settled that where rights of the parties are governed by the statutory provisions, the individual nomination contrary to the statue will not operate.” 16. From the aforesaid judgment of Hon’ble Supreme Court, it is clear that where rights of the parties are governed by statutory provisions, the individual nomination contrary to the statue will not operate. Hence, the objection raised by learned counsel for the respondent No.1 cannot be accepted. 17. Learned counsel for the respondent No.1 has also contended that the appellants are getting pension from their mother because their mother was also a Government servant. Hence, the appellants are not eligible to receive family pension of deceased- father Late Shri Ashok Kumar Sailor. 18. Looking to the provisions of statute, we cannot accept the aforesaid submission also. 17. Learned counsel for the respondent No.1 has also contended that the appellants are getting pension from their mother because their mother was also a Government servant. Hence, the appellants are not eligible to receive family pension of deceased- father Late Shri Ashok Kumar Sailor. 18. Looking to the provisions of statute, we cannot accept the aforesaid submission also. Hence, this writ appeal filed by the appellants is disposed of with the following directions:- (I) The impugned order dated 23.2.2011 passed by learned Single Judge in Writ Petition No.4637/2010(S) is modified to the extent that the appropriate authority shall fix family pension of deceased Late Shri Ashok Kumar Sailor in accordance with provisions contained in Rule 47(7)(a)(ii) of the Pension Rules of 1976 and also fix the amount of pension accordingly. (II) Necessary order in this regard be passed within a period of six weeks from the date of receipt of copy of this order.