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2017 DIGILAW 784 (CAL)

Purnima Das Mahanta v. Union of India

2017-09-15

NISHITA MHATRE, TAPABRATA CHAKRABORTY

body2017
JUDGMENT : TAPABRATA CHAKRABORTY, J. 1. The instant appeal has been preferred challenging an order dated 30th July, 2015 passed by the learned Single Judge in WP 16696 (W) of 2015. The said writ petition was preferred by the appellant herein challenging, inter alia, an order dated 19th February, 2015 passed by the respondent No. 4 rejecting the petitioner's prayer for grant of family pension under the Swatantrata Sainik Samman Pension Scheme, 1980 (hereinafter referred to as the said Scheme) formerly known as Freedom Fighter's Scheme, 1972. Shorn of unnecessary details the facts are that one Narayan Das Mohanta, a freedom fighter, was granted pension under the said Scheme on 6th July, 1987. His first wife Smt. Santipriya Das Mohanta expired on 28th January, 2003. Thereafter, he married the appellant on 15th May, 2006. The appellant was earlier married to one Achinta Biswas but on 27th July, 2002 the said marriage was dissolved on the basis of a mutual divorce petition. Narayan Das Mohanta expired on 16th December, 2007. The appellant within six months thereafter applied for family pension on 27th March, 2008. Subsequent thereto, Niharendu Das Mohanta, son of Late Narayan Das Mohanta preferred a Title Suit No. 116 of 2008 seeking a declaration that no marriage took place on 15th May, 2006 between his father and the appellant and that the marriage certificate was false and fabricated and he sought for a permanent injunction to restrain the appellant from withdrawing any pension amount from the State. Upon contested hearing the said suit was dismissed by a judgment dated 31st August, 2012. The said judgment was challenged in a Title Appeal No. 92 of 2012 by Niharendu and upon contested hearing the said appeal was also dismissed by a judgment dated 19th March, 2013. After dismissal of the appeal the appellant renewed her prayer for grant of family pension by submitting a representation on 8th January, 2013 and such claim was ultimately rejected by an order dated 19th February, 2015 passed by the respondent No. 4. 2. Mr. Chattopadhyay, learned advocate appearing for the appellant/writ petitioner submits that the appellant's application for grant of family pension submitted on 27th March, 2008 could not have been rejected on the basis of the Guidelines for disbursement of Central Samman Pensions (hereinafter referred to as the said Guidelines) which came into effect from 6th August, 2014. 3. 2. Mr. Chattopadhyay, learned advocate appearing for the appellant/writ petitioner submits that the appellant's application for grant of family pension submitted on 27th March, 2008 could not have been rejected on the basis of the Guidelines for disbursement of Central Samman Pensions (hereinafter referred to as the said Guidelines) which came into effect from 6th August, 2014. 3. He further submits that the appellant applied for family pension on 27th March, 2008 and in the midst thereof the Title Suit was filed and the said the application was not forwarded by the State authorities as enquiry could not be completed due to pendency of the suit. Such fact would be explicit from the judgment dated 31st August, 2012 passed in the said Title Suit wherein it has been categorically observed that "State defendant is countered by plaintiff as if it is laying stress upon the case of defendant No. 1, but actually the State defendant, in its written statement submitted that it could not finish its enquiry process". 4. Per contra, Mr. Basu, learned advocate appearing for the respondent Nos. 1 and 4 submits that the application for family pension was not submitted to the competent authority prior to coming into effect of the said Guidelines and as such the appellant's claim has been rightly rejected in terms of Para 5 of the said Guidelines and there is also no infirmity in the order impugned by which the learned Single Judge refused to exercise discretion in favour of the appellant. 5. He further submits that marriages were happening with the sole motive of availing pension and as such a bar was incorporated in Para 5 of the said Guidelines to the effect that if the freedom fighter marries after the sanction of pension then family pension to such spouse shall not be admissible. No vested right accrued in favour of the appellant to be considered in terms of the earlier Scheme on the basis of the application submitted before the District Magistrate, who is not the competent and appropriate authority to sanction pension. Such submissions of Mr. Basu have been adopted by Mr. Dey, learned advocate appearing for the respondent Nos. 1 and 3. 6. One of the reasons towards dismissal of the writ petition was that there was no prayer seeking any declaration that the said Guidelines are ultra vires the Constitution of India or the Scheme of 1980. Such submissions of Mr. Basu have been adopted by Mr. Dey, learned advocate appearing for the respondent Nos. 1 and 3. 6. One of the reasons towards dismissal of the writ petition was that there was no prayer seeking any declaration that the said Guidelines are ultra vires the Constitution of India or the Scheme of 1980. Question of seeking any such declaration does not occasion since it had been the specific case of the appellant that the said Guidelines are not applicable in respect of her claim for family pension. 7. The fact that the appellant applied for family pension but the same could not be processed by the State authorities due to pendency of the Title Suit No. 116 of 2008 is explicit from the contents of the judgment delivered in the said suit on 31st August, 2012. Though the application for family pension was submitted by the appellant on 27th March, 2008 much prior to the said Guidelines which came into effect from 6th August, 2014, the same was forwarded by the Government of West Bengal to the respondent No. 4 vide letter dated 5th January, 2015, as would be explicit from the order passed the respondent No. 4 on 19th February, 2015. The delay towards consideration of the appellant's claim is thus attributable to the respondents for which the appellant cannot be made to suffer. 8. The said Scheme of 1980 was not altogether abolished by the said Guidelines. The purpose of issuance the said Guidelines was to clarify the difference between the normal Central Civil Pensioners and the Central Freedom Fighter Pensioners and to remove the possibility of misuse of the said Scheme. There is no clause similar to Para 5 of the said Guidelines in the said Scheme of 1980 and the bar imposed by Para 5 of the said Guidelines could not have been applied in respect of the appellant's claim since the appellant had sought for family pension at a point of time when the said Guidelines were not in existence. Her claim, therefore, was required to be considered in terms of the said Scheme of 1980 which was in vogue on 27th March, 2008 when she submitted her application for family pension. 9. The argument of Mr. Her claim, therefore, was required to be considered in terms of the said Scheme of 1980 which was in vogue on 27th March, 2008 when she submitted her application for family pension. 9. The argument of Mr. Basu that the appellant did not submit her application before the competent authority is also not acceptable to this Court in view of the specific averments made in the affidavit in opposition filed on behalf of the respondent No. 1 to the stay application that the claim for pension can be considered by the Central Government only when the same is duly verified and recommended by the State Government/Union Territory Administrations concerned and that no action is, therefore, possible on the applications sent directly to the Central Government without routing through the State Government/Union Territory Administrations concerned. 10. The grounds towards dismissal of the writ petition are thus indefensible and accordingly the order impugned in the writ petition and the order impugned in the present appeal are set aside and the respondent No. 4 is directed to consider the appellant's claim for family pension, as forwarded by the State Government vide letter dated 5th January, 2015, afresh strictly in terms of the provisions of the said Scheme of 1980 and to pass a reasoned order and to communicate the same to the appellant. 11. The above exercise shall be completed within a period of eight weeks from the date of communication of this order. 12. It is, however, made clear that the respondent No. 4 would be at liberty to examine the legality and veracity of the documents pertaining to the appellant's claim and to call for appropriate records and enquiry report, if any prepared by the State Government upon verification and examination of the appellant's application for grant of family pension. With the above observations and directions the appeal and the connected application are disposed of. There shall, however, be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties upon compliance of all necessary formalities.