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2015 DIGILAW 3 (MAN)

Longjam Tomba Singh v. State of Manipur

2015-01-06

KH.NOBIN SINGH

body2015
JUDGMENT Kh. Nobin Singh, J. 1. Heard Shri L. Shashibhushan, learned counsel appearing for the petitioner, Shri K. Jagat, learned Govt. Advocate and Shri S. Rupachandra, ASG appearing for the respondents. 2. The present case is one of the unfortunate cases wherein the petitioner, who is suffering from mental retardation since birth, through his brother and legal guardian has filed the above writ petition praying for affording the benefits of family pension to him. The facts in short are as under- (a) Late Shri L. Mera Singh, the father of the petitioner died-in-harness on 25-07-1954 while working as a Head Pandit in the Department of Education, Government of Manipur to the erstwhile Territorial Council. At the time of his death, the Manipur Civil Services (Pension) Rules, 1972 was not in force in the State of Manipur nor was there any enactment or rule or order providing for grant of family pension to the family of the deceased Government Servant who expired prior to 1964. (b) Pursuant to and in compliance of the judgment and order delivered by the Hon'ble Supreme Court in a writ petition filed by widows of Government servants who were not covered by the 1964 scheme, the Government of India issued an O.M. dated 18-06-1985 extending the benefits of the Family Pension scheme, 1964 to all eligible members of the family, in accordance with the provisions of the Rule 54 of the CCS (Pension) Rules, 1972, of those Government Servants who were/are borne on Pensionable Establishment and are presently not covered by the scheme i.e., 1964 Scheme. (c) The State Government vide O.M. dated 07-08-1986 adopted the said O.M. dated 18-06-1985 of the Union of India whereby the benefits of Family Pension Scheme, 1964 was extended to the family of those State Government employees who retired/died before 31-12-1963 and those who were alive on 31-12-1963 and who opted out of the 1964 Scheme and not covered by the Family Pension Scheme of 1964. In terms of the said O.M. dated 07-08-1986, Late Smt. R.K. Indrani Devi, the wife of Late Shri L. Mera Singh and the mother of the petitioner was granted family pension by the State Government. In terms of the said O.M. dated 07-08-1986, Late Smt. R.K. Indrani Devi, the wife of Late Shri L. Mera Singh and the mother of the petitioner was granted family pension by the State Government. It is not in dispute that while filing and submitting the requisite Form for grant of family pension to the authority concerned by the mother of the petitioner, the name of the petitioner and his disability was not reflected/recorded in the list of family members. (d) Since the petitioner has been suffering from mental retardation and was unable to earn his livelihood, he was being looked after and cared for by his parents i.e., Late Shri L. Mera Singh and Late Smt. R.K. Indrani Devi during their lifetime. After the demise of his parents, the petitioner is being presently looked after by his natural brother and guardian appointed by the District & Sessions Court, Manipur West, Imphal under the provisions of the Mental Health Act, 1987. (e) The natural mother of the petitioner i.e., Late Smt. R.K. Indrani Devi expired on 28-06-2006 and after the death of his natural mother, the petitioner through his guardian and natural brother, Shri Longjam Raghubir Singh submitted an application dated 01-10-2006 to the Zonal Educational Officer, Senapati, Department of Education (S), Government of Manipur praying that family pension in the prescribed Form No. 21 be sanctioned and forwarded to the Office of the Accountant General, Manipur for necessary action. Along with the said application, the petitioner submitted as many as 11 (eleven) documents including the legal son certificate. The Zonal Education Officer, Senapati vide its letter dated 11-10-2007 forwarded the same along with the duly filled up form and the enclosures to the Pay Accounts Officer (Pension), Office of the Accountant General, Manipur, Imphal for taking up necessary action. On receipt of the said letter dated 11-10-2007 of the Zonal Educational Officer, Senapati, the Senior Accounts Officer/Pension addressed a letter dated 17-01-2008 to the Zonal Educational Officer, Senapati informing that the claim of the petitioner for grant of family pension could not be considered for the reason that the petitioner is not the son of Late Shri L. Mera Singh as per records submitted by the family pensioners (mother of the petitioner) i.e., Late Shri R.K. Indrani Devi at the time of preferring her claim for family pension. (f) On 22-01-2008, the Zonal Educational Officer, Senapati addressed a letter to the Senior Accounts Officer/Pension, Office of the Accountant General, Manipur, Imphal informing that the petitioner is the son of Late Shri L. Mera Singh as per disability certificate issued by the Director, Social Welfare Department, Imphal and the Electoral Roll issued by the Sub-Deputy Collector, Office of the Deputy Commissioner, Imphal. By the said letter, the Senior Accounts Officer/Pension was requested to consider the claim of the petitioner for grant of family pension at an early date on humanitarian ground. In response thereto, the Senior Accounts Officer vide its letter dated 11-07-2008 reiterated that the claim of the petitioner for grant of family pension could not be entertained as he was not declared as family member by the Claimant/Pensioner (mother of the petitioner) while she was alive. (g) The natural brother and guardian of the petitioner, Shri L. Raghubir Singh submitted an application dated 14-07-2008 to the Pay Accounts Officer, Office of the Accountant General, Imphal informing that Late Smt. R.K. Indrani Devi who had enjoyed the family pension in respect of the service of her husband Late Shri L. Mera Singh died on 28-06-2006 living behind her son, the petitioner who is a mentally retarded person. In the said application, it is also stated that the petitioner is being looked after by the applicant, the natural brother and guardian of the petitioner who prays that family pension be sanctioned in favour of the petitioner. (h) Since the petitioner was not granted family pension, a writ petition being W.P. (C) No. 982 of 2008 was filed before the Hon'ble High Court praying for direction to the respondents therein for grant of family pension on the inter alia ground that since the petitioner is a mentally retarded person, he is entitled to family pension as per the provisions of the CCS (Pension) Rules, 1972. While the said writ petition was pending, the Sr. While the said writ petition was pending, the Sr. Accounts Officer/Pension addressed a letter dated 21-01-2009 to the Joint Secretary (Pension Cell), Government of Manipur informing that the claim of the petitioner for grant of family pension could not be entertained as he was not declared as family member by the Claimant/Pensioner (mother of the petitioner, Late Smt. R.K. Indrani Devi) while she was alive and that one person Shri L. Raghubir Singh as a guardian of the petitioner complained that the petitioner is the mentally retarded son of Late Shri R.K. Indrani Devi and Late Shri L. Mera Singh and requested for grant of benefits of family pension to the petitioner for life. By the said letter, the Sr. Accounts Officer/Pension also requested the Joint Secretary (Pension Cell), Government of Manipur to communicate a concrete decision whether the petitioner is to be granted family pension for life even though his name was not furnished/included in Form - 3 submitted by the wife of Late Shri L. Mera Singh at the earliest so as to avoid legal complications in future. (i) Thereafter, the said writ petition being W.P. (C) No. 982 of 2008 was withdrawn with a liberty to file a fresh petition and accordingly, the present writ petition is filed by the petitioner praying inter-alia that the petitioner should be afforded the benefits of family pension. 3. It is submitted by the counsel appearing for the petitioner that the acts of the respondents in denying the benefits of family pension to the petitioner on the ground that his name was not included in the list of family members submitted by her mother, late Smt. R.K. Indrani Devi while claiming the benefits of family pension are illegal and contrary to the provisions of CCS (Pension) Rules, 1972 and that the right of family pension accruing under the statutory law, cannot be defeated by making a nomination to the contrary. In support of his contention, the counsel appearing for the petitioner has relied upon the order passed by the Hon'ble Supreme Court in the case of G.L. Bhatia -Vs- Union of India, reported in ( : 1999) 5 SCC 237 and the judgment and orders delivered by the Hon'ble Gauhati High Court, Imphal Bench and Aizwal Bench in the case of Accountant General, Manipur -Vs-Moirangthem Bobby Singh, reported in : 2006 (Suppl. 1) GLT 513 and Lalmuanpuii -Vs- State of Mizoram, reported in : 2009 (5) GLT 275 respectively. 4. The above writ petition is contested by the respondent No. 3, the Accountant General, Manipur by filing an affidavit-in-opposition wherein it is stated that at the time of submission of Pre - 1964 family pension papers by Late Shri R.K. Indrani Devi, the name of the petitioner was not included in the "form of application for Pre - 1964 family pension" and "affidavit dated 02-06-1987" sworn to by Late Shri R.K. Indrani Devi while she was alive and that the Identity Card was issued on 11-01-2007 by the Director, Social Welfare Department and not by the respondent No. 1 i.e., the Commissioner/Secretary, Education (S), Government of Manipur. It is further stated that in response to their queries put by the Office of the Accountant General and in respect of some similar cases, the Under Secretary (Finance/PIC), Government of Manipur vide their letters dated 30-05-2007 and 16-01-2009 informed the Sr. Accounts Officer/Pension that the provision of the Rules are categorical and unanimous and that since the name of the claimant therein was not declared as dependent in the service record, the plea of the claimant cannot be entertained for grant of family pension on the basis of the declaration made by the claimant after the death of the government servant/pensioner. Accordingly, it is submitted that the request of the Zonal Educational Officer, Senapati could not be entertained and the same was intimated to the State Government. However, in the interest of the claimant, a clarification was sought from the State Government to furnish a concrete decision whether the petitioner could be granted family pension for life even though his name was not furnished/included in the list of family members submitted by the wife of Late Shri L. Mera Singh followed by various reminders and no reply was received from the State Government. Therefore, there is no violation of the provisions of any statutory law/CCS (Pension) Rules, 1972 on the part of the respondent No. 3. An affidavit-in-opposition on behalf of the respondent Nos. Therefore, there is no violation of the provisions of any statutory law/CCS (Pension) Rules, 1972 on the part of the respondent No. 3. An affidavit-in-opposition on behalf of the respondent Nos. 2 and 4 was filed contending therein that the Pension Cell of the respondent No. 2 had requested the Director of Education (S), Government of Manipur to take a concrete decision as to whether the petitioner would be granted family pension for life time, even though his name was not furnished/included in form of application submitted by the mother of the petitioner in consultation with the Administrative Department. The Principal Secretary (Education/S), Government of Manipur was also requested to furnish the decision of the Government in this regard. Taking the aforesaid stand, it is submitted that the petition may be rejected as being devoid of merit. It appears that no affidavit-in-opposition on behalf of the Respondent No. 1 has been filed. 5. What is "pension" has been interpreted by the Hon'ble Supreme Court in a catena of judgments. It is well settled that pension is not a bounty payable on the sweet will and pleasure of the State Government and that on the other hand, right to pension is a valuable right vesting in the government servant. Entitlement of pension of a Government servant or family pension to the members of his family is provided in the statute itself namely the CCS (Pension) Rules, 1972. Entitlement of pension of a Government servant or family pension to the members of his family is provided in the statute itself namely the CCS (Pension) Rules, 1972. The relevant portion of Rules 54 is quoted below- "Rule 54 (2) - Without prejudice to the provisions contained in sub-rule (3), where a Government servant dies- (a) after completion of one year of continuous service; or (aa) before completion of one year of continuous service, provided the deceased Government servant concerned immediately prior to his appointment to the service or post was examined by the appropriate Medical Authority and declared fit by that authority for Government service; or (b) after retirement from service and was on the date of death in receipt of a pension, or Compassionate Allowance, referred to in Chapter V, other than the pension referred to in Rule 37, the family of the deceased shall be entitled to Family Pension, 1964 (hereinafter in this rule referred to as family pension) the amount of which shall be determined in accordance with the Table below" "Rule 54 (6) - The period for which family pension is payable shall be as follows:- (i) in the case of a widow or widower, up to the date of death or re-marriage, whichever is earlier; (ii) in the case of a son, until he attains the age of (twenty-five) years; and (iii) in the case of an unmarried daughter, until she attains the age of (twenty-five) years or until she gets married, whichever is earlier; Provided that if the son or daughter of a Government servant is suffering from any disorder disability of mind (including mentally retarded) or is physically crippled or disabled so as to render him or her unable to care a living even after attaining the age of (twenty-five years), the family pension shall be payable to such son or daughter for life subject to the following conditions, namely:- "(i) if such son or daughter is one among two or more children of the Government servant, the family pension shall be initially payable to the minor children in the order set out in Clause (iii) of sub-rule (8) of this rule until the last minor child attains the age of twenty-five and thereafter the family pension shall be resumed in favour of the son or daughter suffering from disorder or disability of mind including mentally retarded or who is physically crippled or disabled and shall be payable to him/her for life." 6. As has been submitted by the counsel appearing for the petitioner, the Hon'ble Supreme Court has passed an order in the case of G.L. Bhatia holding 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 statutory provisions, the individual nomination contrary to the statue will not operate." In the case of Accountant General -Vs- Moirangthem Bobby Singh reported in : 2006 (Suppl. 1) GLT 513, the facts in short are that after the death of petitioner's father, the petitioner's mother continued to get family pension till she died on 12-02-2003. After the death of his mother, the petitioner submitted his application for grant of pension as per sub-rule 54 (6) of CCS (Pension) Rules, 1972 on the ground that the petitioner had suffered from physical disability. The petitioner's application was rejected on the ground that his name had not been mentioned in the Form No. 3 mentioned in Rule 54 of the CCS (Pension) Rules, 1972 by the late Government servant. The Hon'ble Gauhati High Court, Imphal Bench held that right to receive pension is a property under Article 31(1) and also a property under Article 19(1)(f) of the Constitution of India and therefore, the petitioner's right to family pension can not be denied on mere lapse on the part of the pensioner to mention the name of the petitioner therein and also on mere lapse on the part of the concerned authority to mention the name of the petitioner in the PPO of the deceased employee. It has also been held as well settled principle of law that the constitutional right of a citizen under the constitution of India can not be denied on the mere administrative lapse of the concerned authority/person. In the case of Lalmuanpuii -Vs- State of Mizoram, reported in : 2009 (5) GLT 275, wherein the application of the petitioner was rejected on the ground that her name does not appear in Form 3 as one of the family members of the late Ramrochunga who died on 02-07-2002, the Hon'ble Gauhati High Court, Aizwal Bench held that the respondent authorities perhaps while attending the application for family pension, made through the guardian of the writ petitioner, failed to take care of the provisions of Rule 54 (7)(c) of the C.C.S. (Pension) Rules, 1972 and thus illegally and erroneously rejected the prayer of the petitioner on account of omission of her name as one of the family members of the deceased Government Servant namely, Ramrochunga in Form 3. 7. In the present case, it is nowhere stated in the affidavits-in-opposition filed either on behalf of the respondent No. 3 or on behalf of the respondent Nos. 2 & 4 that the petitioner is not entitled to family pension at all under the provisions of the CCS (pension) Rules. All that the respondent No. 3 submitted is that the application of the petitioner could not be considered as his name was not furnished/included in the list of family members furnished by his mother while she was alive. Such stand of the State respondent No. 3 is nullified by the decisions of the courts including the Hon'ble Supreme Court as cited above. In fact, there was no need of taking a decision by the State Government as to whether the petitioner would be given family pension, even though his name was not furnished/included in the list of family members or not. The only thing that could have been done by the State Government is to determine whether the petitioner fulfill the criteria prescribed in the CCS (pension) Rules or not and In other words, whether the petitioner was able to produce sufficient materials to prove that he is a member of the family. The only thing that could have been done by the State Government is to determine whether the petitioner fulfill the criteria prescribed in the CCS (pension) Rules or not and In other words, whether the petitioner was able to produce sufficient materials to prove that he is a member of the family. In stead of writing letters to the State Government, the respondent No. 3 itself could have done this exercise and even if the respondent No. 3 was not satisfied with the documents already submitted by the petitioner, it could have asked the petitioner to submit further and requisite documents so that appropriate action could have been taken within a reasonable time. 8. The State Government being an institution is supposed to act fairly and reasonably and instead of taking a decision by itself, the Finance Department directed the Administrative Department to take a concrete decision and the Administrative Department had chosen to remain silent as if it was not concerned with it at all. It may be noted that this court vide its order dated 31-10-2012 directed the Joint Secretary (Pension Cell) to take decision on the letter dated 21-01-2009 written by the Sr. Accounts Officer/Pension. There is no material on record to show that the Joint Secretary (Pension Cell) has duly complied with the said order. From the correspondences available on record, it appears that the respondents are not interested in solving the problem created by them and that the respondents had been making attempts to shift responsibilities to each other. 9. At the time of issuing the certificate by the Director, Social Welfare Department, the petitioner was 56 (fifty-six) years of age. Had the family pension been granted to the petitioner in time, it could have mitigated the hardship suffered by the petitioner. It could well be imagined the hardship that the petitioner would have suffered after the demise of his parents. For no fault of the petitioner, he has suffered a lot which cannot be compensated even in terms of money given today. 10. The stand of the State Government reflected in the letters dated 30-05-2007 and 16-01-2009 which the respondent No. 3 has relied upon, is contrary to the law laid down by the various courts including the Hon'ble Supreme Court as cited above. 10. The stand of the State Government reflected in the letters dated 30-05-2007 and 16-01-2009 which the respondent No. 3 has relied upon, is contrary to the law laid down by the various courts including the Hon'ble Supreme Court as cited above. Respondent No. 3 also being an institution is supposed to be well equipped, through their eminent lawyers/law officers, not only with the latest developments in law enacted by the Parliament or by State Legislature but also the law laid down by the Hon'ble Supreme Court in various cases. 11. The callous attitude shown by the respondents has resulted in denial of family pension to the petitioner. The actions of the respondents in denying the benefits of family pension to the petitioner are illegal and unreasonable which are unwarranted and uncalled for in the facts and circumstances of the case. Accordingly, I allow the present writ petition and direct the respondents to take immediate and necessary action and grant the benefits of family pension to the petitioner within a period of three months from the date of receipt of a copy of the order. No order as to cost.