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2019 DIGILAW 502 (GAU)

Lalbiakmawii v. Union Of India

2019-04-24

NELSON SAILO

body2019
JUDGMENT : 1. Heard Mr. Zoramchhana, the learned counsel for the petitioner and Ms. Zairemsangpuii, the learned CGC appearing for all the respondents. 2. Essential facts necessary for disposal of the writ petition may be narrated at the outset. 3. The petitioner is the widowed daughter of Sh. Hranghlira, who retired and got discharged from the Assam Rifles in the rank of Lance Naik w.e.f. 10.12.1972. The said Ex-Serviceman was married to Smt. Saithangkhumi and out of their wedlock, they have five children. The petitioner is the youngest of the five and she was born on 06.05.1975, after her father was discharged from service. Lance Naik Sh. Hranghlira after his discharge from service was receiving his pension/retirement dues till he expired on 21.11.2014. In so far as his wife Smt. Saithangkhumi is concerned, she predeceased him on 06.08.2010. The petitioner although was married at one point of time, but however, her husband expired on 14.10.2000. She has two children born out of her marriage and after her husband expired, she moved back to her parental home alongwith her children. Since her father expired on 21.11.2014, she being the widowed daughter, she submitted a claim for family pension to the respondents through the Assam Rifles Ex-Serviceman Association after obtaining a Succession Certificate from the competent Court at Aizawl certifying that she is the legal successor of her late father, Lance Naik Hranghlira in respect of the SBI, Main Branch, Aizawl, Account No. 30113854011 through which, he used to receive family pension. However, the petitioners application was rejected by the respondent authorities on a ground that her name was not found in the service record of her late father. The said rejection was communicated to the petitioner vide communication dated 20.10.2016 through the Assam Rifles Ex-Serviceman Association. Being aggrieved, the petitioner is before this Court. 4. Mr. Zoramchhana, the learned counsel submits that since the petitioner was born only on 06.05.1975, her name could not be entered in the service record of her late father as her late father was discharged from service on 10.12.1972. He further submits that since his mother expired on 06.08.2010, she is the only person in the family eligible to receive family pension. He further submits that since his mother expired on 06.08.2010, she is the only person in the family eligible to receive family pension. The learned counsel by referring to Rule 54 (20) of the CCS (Pension) Rules, 1972 submits that a widowed/ divorced daughter is eligible to receive family pension till she attains the age of 25 years or up to the date of her remarriage, whichever is earlier. He submits that the petitioner has two children born out of her marriage with her husband and she has not remarried till date. She is, therefore eligible to receive family pension in terms of the said provision. He also submits that in support of her case, the petitioner submitted a Succession Certificate as well as a Birth Certificate to the respondent authorities. But however, her claim was rejected on the sole ground that her name was not entered in a service record of the late Ex-Serviceman. He submits that when the right of the petitioner is governed by statutory provisions, she cannot be denied of her dues merely on technical ground. She submits that it was only due to the birth of the petitioner after her father was discharged from service that her name did not find a place in his service record. Therefore, Court may be pleased to direct the respondent authorities to grant the petitioner family pension with effect from the date when it was last received by her late father and also with interest for the delayed payment as may be found appropriate by this Court. 5. Mr. Zoramchhana, the learned counsel in support of his submission has relied upon the following authorities:- (i) G.L. Bhatia Vs. Union of India and Another, (1999) 5 SCC 237 . (ii) State of Jharkhand and Others Vs. Jitendra Kumar Srivastava and Another, (2013) 12 SCC 210 . (iii) H. Dawngi (Smti) Vs. Union of India and Others, 2001 (3) GLT 349. (iv) Sati Lakhi Roy (Smti) Vs. G.O.C. Eastern Command and Others, 2001 (1) GLT 312. 6. Ms. Zairemsangpuii, the learned CGC defending the impugned Order dated 20.10.2016 submits that since the name of the petitioner was not found in the service record of late Lance Naik Hranghlira, the respondent authorities cannot be faulted in not granting family pension to her. (iv) Sati Lakhi Roy (Smti) Vs. G.O.C. Eastern Command and Others, 2001 (1) GLT 312. 6. Ms. Zairemsangpuii, the learned CGC defending the impugned Order dated 20.10.2016 submits that since the name of the petitioner was not found in the service record of late Lance Naik Hranghlira, the respondent authorities cannot be faulted in not granting family pension to her. She also submits that the Birth Certificate of the petitioner was only issued belatedly on 11.05.2016 and which is rather unusual. Therefore, the respondents rightly rejected the petitioners claim for family pension. 7. By referring to Rule 54 (12) of the CCS (Pension) Rules, 1972, the learned CGC submits that a Government servant is required to communicate to the head of the office any subsequent change in the size of the family, including the fact of marriage of his or her child. In the present case, the late Ex-Serviceman failed to bring to the notice of the respondent authorities that the petitioner was born on 06.05.1975 after he was discharged from service. Having failed to comply with the said provision, rejection of the claim of the petitioner for family pension is only justified. She thus submits that the writ petition being without merit, the same should be dismissed. 8. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 9. As may be noticed, the issue to be decided is as to whether the petitioner can be said to be entitled to family pension despite the fact that her name has not been entered in the service record of the late Ex- Serviceman. 10. The case of the petitioner is that she was born on 06.05.1975 after her father was discharged from service on 10.12.1972. It is also her case that she is a widowed daughter of her late father since her husband expired on 14.10.2000, whereafter she rejoined her parental home. From the materials available on record, it is seen that the only objection raised by the respondent is that the name of the petitioner is not included in the service record of the late Ex-Serviceman. From the materials available on record, it is seen that the only objection raised by the respondent is that the name of the petitioner is not included in the service record of the late Ex-Serviceman. While considering this aspect, it will be gainful to abstract the relevant provision of Rule 54 of the CCS (Pension) Rules, 1972, more particularly, Rule 54 (20) (b) which is reproduced below:- “(20) Dependent parents and widowed/ divorced daughter also included in the definition of family from 01.01.1996. - (b) Son/daughter including widowed/ divorced daughter till he/she attains the age of 25 years or up to the date of his /her marriage/ remarriage, whichever is earlier.” 11. From what has been abstracted above, it can be seen that a widowed daughter or a divorced daughter is also included in the definition of family for the purpose of grant of family pension w.e.f. 01.01.1996. Therefore, as per the said provision and considering the stand taken by the petitioner alongwith the supporting documents produced by her, she will only be entitled to family pension. It is no doubt true that a Government servant is required to communicate to the head of the office subsequent changes in the size of the family after retirement as pointed out by the learned CGC, but failure to do the same in my considered view cannot be the ground for denying family pension to the petitioner. 12. This Court in the case of H. Dawngi (Smti) (Supra) having regard to the fact that since Heirship Certificate was produced by the petitioner to establish that she was the dependent of the deceased Government servant, this Court held that the petitioner therein was entitled to family pension. In addition to such communication, interest @ 12% per annum was also granted to the petitioner on the unpaid amount of the family pension. 13. In the case of Jitendra Kumar Srivastava and Another (Supra), the Apex Court held that pension and gratuity are not bounty but in fact property and the earned benefit of the Government servant. Such benefits cannot be taken away arbitrarily without due compliance of the process of law. 14. 13. In the case of Jitendra Kumar Srivastava and Another (Supra), the Apex Court held that pension and gratuity are not bounty but in fact property and the earned benefit of the Government servant. Such benefits cannot be taken away arbitrarily without due compliance of the process of law. 14. In the case of G.L. Bhatia (Supra), the Apex Court held that merely because husband was not included in the nomination made by the wife, his right to family pension as provided under Rule 54 of the CCS (Pension) Rule, 1972, which are statutory in nature cannot be curtailed. 15. Under the given facts and circumstances, I am of the considered view that the petitioner is able to make out the case for the interference of this Court. In the result, the respondents, more particularly, the respondent Nos. 2 and 3 are hereby directed to grant family pension to the petitioner as permissible in law with effect from the period when the last payment was made to the retired Ex-Serviceman i.e. Lance Naik Hranghlira. 16. In so far as the payment of interest on the delayed payment of family pension is concerned, I am of the considered view that ends of justice will be served if the petitioner is granted interest for delayed payment @ 9 % per annum with effect from the date she applied for the family pension till the date on which actual payment is made to her. The respondent Nos. 2 and 3 shall process the family pension as entitled to the petitioner for payment to her as expeditiously as possible. The entire exercise should be carried out within the outer limit of 6 (six) weeks from the date of receipt of a certified copy of this order. 17. With the above observation and direction, the writ petition stands disposed of. No cost.