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2023 DIGILAW 542 (UTT)

Baraili Devi Sundriyal v. Union Of India

2023-09-20

MANOJ KUMAR TIWARI, PANKAJ PUROHIT

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JUDGMENT : Manoj Kumar Tiwari, J. Petitioner is the wife of late Govind Prasad Sundriyal, who retired as Assistant Commandant from Border Security Force on 01.09.1980 and passed away on 05.07.2017. Petitioner applied for family pension soon after death of her husband, regarding which certain clarifications were sought by respondent no. 3. According to petitioner, she satisfied all the issues raised by respondent no. 3 and also furnished no objection from all family members, yet family pension is not released to her. 2. Thus feeling aggrieved, petitioner has filed this writ petition seeking following substantive reliefs:- “(i) A writ order or direction in the nature of mandamus directing the Respondent no 1, 2 and 3 to release the family pension of her late husband (Late Shri Govind Prasad Sundriyal Ex-Ac Regiment No. 1230 Pension PPO number 240558010904) in favor of petitioner along with all other retirement funds from the date of death of her Late husband along with 12% bank interest. (ii) A writ order or direction in the nature of mandamus directing the Respondents not to deny the pension and retirement funds to the petitioner of her late husband (Late Shri Govind Prasad Sundriyal Ex-Ac Regiment No. 1230 Pension PPO number 240558010904) on the ground of plural marriage (exempted under Rule BASF 7).” 3. From the pleadings made in writ petition, it is revealed that late Govind Prasad Sundriyal was appointed as Sub Inspector in Rajasthan Armed Constabulary on 08.11.1950, and thereafter, he was absorbed in Border Security Force with all service benefits w.e.f. 01.04.1966 and re-retired as Assistant Commandant from Border Security Force on 01.09.1980. 4. Late Govind Prasad Sundriyal was given exemption from operation of BSF Rule 7 by the Central Government, vide order dated 18.09.1974, as he had married twice. Rule 7 of Border Security Force Rules, 1969 is extracted below:- “[7. Disqualification.—No person, (a) who has entered into or contracted a marriage with a person having a spouse living, or (b) who, having a spouse living, has entered into or contracted a marriage with any person, shall be eligible for appointment in the Force: Provided that the Central Government may, if satisfied, that such marriage is permissible under the personal law applicable to such person and the other party to the marriage and that there are other grounds for so doing, exempt any person from the operating of this rule.]” 5. It is not in dispute that late Govind Prasad Sundriyal was married to Smt. Maheshwari Devi Sundriyal (respondent no. 4 in this writ petition) and during her lifetime, he married the petitioner. Admittedly late Govind Prasad Sundriyal nominated the petitioner for receiving amount of Benevolent Fund, Provident Fund, Death-cum-Retirement Gratuity and other service related monetary dues. 6. From counter affidavit filed by Sri Sukhdev Raj, DIG SHQ, BSF, Indreshwar Nagar, Jammu, it is revealed that family pension was not released even in favour of Smt. Maheshwari Devi Sundriyal, the first wife of Late Govind Prasad Sundriyal. It is also revealed from the counter affidavit that the first wife (Smt. Maheshwari Devi) had not staked claim for family pension and she had desired that it may be paid to the second wife (petitioner). Paragraph nos. 17 & 18 of the said counter affidavit are reproduced below:- “17.That the contents of paragraph no. 10 of the writ petition are admitted to the extent that Late Shri Govind Prasad Sundriyal, Ex-Assistant Commandant got exemption from the operation of Rule 7 of BSF Rules. However, said exemption under Rule 7 of BSF Rules did not make the petitioner i.e. second wife of Late Sh. Govind Prasad Sundriyal Ex-Assistant Commandant, entitled for the family pension as the family pension is dealt under the CCS (Pension) Rules, 1972 and the DOP&PW, Govt. of India have already clarified that the second wife will not be entitled for family pension as a legally wedded wife. 18. That the contents of paragraph No. 11 of the writ petition is not admitted. It is submitted that as per provisions of rule 54 of CCS (Pension) Rules 1972, Smt. Maheshwari Devi (Ist wife) is only entitled to receive family pension even though she submits undertaking regarding forgoing her claim. As such, the petitioner Smt. Baraili Devi Sundriyal is not entitled to get family pension even though the entitled family pensioner i.e. Smt. Maheshwari Devi forgoes her claim of pension. Further, the clarification asked from the NOK of above retiree have not been received by the PAD BSF, New Delhi.” 7. Smt. Maheshwari Devi Sundriyal (respondent no. As such, the petitioner Smt. Baraili Devi Sundriyal is not entitled to get family pension even though the entitled family pensioner i.e. Smt. Maheshwari Devi forgoes her claim of pension. Further, the clarification asked from the NOK of above retiree have not been received by the PAD BSF, New Delhi.” 7. Smt. Maheshwari Devi Sundriyal (respondent no. 4) has filed a separate counter affidavit, wherein it is stated that she has no objection of any kind if the Government decides to give family pension and other retiral benefits to petitioner and further that petitioner’s marriage with late Govind Prasad Sundriyal was solemnised as per local customs, prevailing in Grahwal region. 8. Learned counsel for petitioner made a statement at the Bar that Smt. Maheshwari Devi Sundriyal has passed away on 24.05.2022. 9. Learned Central Government Standing Counsel appearing for respondent nos. 1 to 3 submitted that as petitioner is the second wife of late Govind Prasad Sundriyal, therefore, she is not entitled to family pension in view of provision contained in Rule 54 of Central Civil Services (Pension) Rules, 1972. 10. Learned counsel for petitioner, however, disputed the said contention and submitted that there is nothing in Rule 54, which comes in the way of granting family pension to petitioner. He placed reliance upon Rule 54(7) (a) (i) of Central Civil Services (Pension) Rules, 1972 for contending that the Rules provide where two or more widows are staking claim for pension, then the amount of family pension has to be paid to all the widows in equal shares. Thus, he submits that Rule 54 of Central Civil Services (Pension) Rules, 1972 cannot be pressed into service for denying family pension to petitioner. Sub-rule 7 of Rule 54 of Central Civil Services (Pension) Rules, 1972 is extracted below for ready reference:- “(7) (a) (i). Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares. (ii) On the death of a widow, her share of the family pension shall become payable to her eligible child: Provided that if the widow is not survived by any child, her share of the family pension shall not lapse but shall be payable to the other widows in equal shares, or if there is only one such other widow, in full, to her. (b) Where the deceased Government servant or pensioner is survived by a widow but has left behind eligible child or children 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 the death of the Government servant or pensioner. [Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares shall not lapse, but shall be payable to the other widow or widows and/or to other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child] [(c) Where the deceased Government servant or pensioner is survived by widow by has left behind eligible child or children from a divorced wife or wives the eligible child or children shall be entitled to the share of family pension which the mother would have received at the time of the death of the Government servant or pensioner had she not been so divorced. Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares, shall not lapse, but shall be payable to the other widow or widows and/or to the other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child. (d) Where the family pension is payable to twin children it shall be paid to such children in equal shares: Provided that when one such child ceases to be eligible his/her share shall revert to the other child and when both of them cease to be eligible for family pension shall be payable to the next eligible single child/twin children.” (emphasis supplied) 11. In the present case, we find that the Competent Authority in the Central Government has granted exemption from operation of Rule 7 of Border Security Force Rules, 1969, vide order dated 18.09.1974. In the present case, we find that the Competent Authority in the Central Government has granted exemption from operation of Rule 7 of Border Security Force Rules, 1969, vide order dated 18.09.1974. Such exemption can be given only when the Central Government is satisfied that second marriage by a person during subsistence of first marriage is permissible under the personal law applicable to such person and the other party to such marriage. Sub-rule 7 of Rule 54 of Central Civil Services (Pension) Rules, 1972 contemplates a situation where there are more than two widows claiming family pension and provides that in such a case family pension shall be paid to such widows in equal shares. 12. Learned Central Government Standing Counsel relied upon executive instructions issued by Central Government, which is enclosed as Annexure-2 to the counter affidavit filed by official respondents. 13. It is settled position in law that executive instructions cannot override the express provision of law. Central Civil Services (Pension) Rules, 1972 is statutory in nature, therefore, it is the law governing the field. The instructions to the contrary issued by Government of India for guidance of its officers cannot override the express provision of Central Civil Services (Pension) Rules, 1972. Thus a right created by statutory Rules cannot be permitted to be taken away by instructions issued by Central Government. 14. In the present case, the Competent Authority has not taken any decision on petitioner’s claim for family pension. Petitioner is a senior citizen aged more than 75 years and she has a legitimate expectation that decision on her claim for family pension is taken at the earliest. Her husband died in July, 2017 and she immediately made application for family pension, but, no decision has been taken in the matter so far. This is a deplorable state of affairs which needs to be corrected immediately. 15. Accordingly, writ petition is disposed of with a direction to the Director General, Border Security Force, New Delhi to examine petitioner’s claim for family pension in the light of relevant statutory provisions, as discussed above, and take appropriate decision by passing a reasoned and speaking order, within two months from the date of presentation of certified copy of this order. Petitioner shall be at liberty to approach this Court, in case, she is dissatisfied by decision taken by the Director General.