Moni Sarkar, Daughter Of Late Ajit Sarkar vs Union Of India & Ors

Suchitto Kumar Das, Member A

The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:

"8.1 To direct the Respondent CPWD authority to immediately grant family pension to the Applicant as prayed by her through her representation dated 08.09.2021;

8.2 To direct the Respondent CPWD authority to consider the prayer of the Applicant to grant her family pension of her deceased mother on the ground that she is a divorced unemployed daughter who was totally dependent on her deceased mother's pension during her lifetime;

8.3 To regularly pay family pension of the deceased pension holder to the Applicant with immediate effect as the Applicant is passing her days in acute financial distress;

8.4 Any further order or orders, direction or directions as the Hon'ble Tribunal may deem fit and proper for the ends of justice."

Facts as narrated by the applicant are as follows:-

2.1 The deceased mother of the Applicant was a Peon under the Respondents authority and upon superannuation, she was regularly getting pension from the Respondent authority till her death on 06/10/2020. Apart from the Applicant, the deceased pension holder had two other daughters namely Anindita Kundu and Sovana Sarkar and a son namely Taraknath Sarkar. The applicant states that all of her brother and sisters are residing separately and they did not take care of their mother in her last days and the deceased mother was residing with the applicant during her last days and the applicant took all the case and responsibility of her mother during that time.

2.2 The applicant was married on 01/02/2002. On 03/10/2019 the applicant and her erstwhile husband filed an application under section 13B of the Hindu Marriage Act, 1955 praying inter alia, for a decree of divorce by mutual consent which was registered as Matrimonial Suit No. 1120 of 2019 before Learned District Judge at Howrah. On 31/03/2021 the marriage of the applicant was dissolved on their mutual consent. After obtaining the aforesaid decree for divorce, the applicant, on 08/09/2021 prayed before the Respondent No.2 for sanctioning her the family pension of her deceased mother in her name as she is a divorced and unemployed daughter passing her days in financial hardship.

2.3 In response to the representation of the applicant, the respondents No.2 by a letter dated 24.11.2021 requested her to submit certain documents to their office at earliest for further processing of her case for family pension. The applicant submitted all the necessary documents to the respondent no. 2 as he required in his letter dated 24.11.2021. Thereafter by a letter dated 28.06.2022 the respondent no. 2 forwarded the case of the applicant to the pay and Accounts Officer, CPWD (EZ), Nizam Palace, Kolkata-700 020 for his further necessary action.

2.4 By letter dated 02.11.2022 the Pay and Accounts Officer, CPWD (EZ) Nizam Palace, Kolkata-700 020 informed respondent no. 2 to submit some necessary information as well as related documents by the applicant. Thereafter the respondent authority maintained silence for past two years and the applicant is in complete dark regarding progress in issuance of the family pension of her deceased mother to her. Hence, this O.A.

Learned Counsel for the applicant submits that it is a settled principle of law that a divorced unemployed dependent daughter, even if she completed 25 years of age, is entitled for family pension under CCS Pension Rules, 1972. The divorce proceeding was filed during the life time of the original pension holder. In her case the mutual divorce proceeding was filed on 10.03.2019, and the original pensioner holder i.e. the mother of the applicant died on 06.01.2020.

3.1 Learned Counsel for the applicant further submits that the other legal heirs of the deceased pension holder are married, staying separately, and were not dependent on the pension holder. The other two sisters of the applicant are married and residing separately with their respective husband and kids and the brother of the applicant is also residing separately with his family and all are financially stable. No one among the other legal heirs of the deceased pension holder is physically or mentally disabled or handicapped.

3.2 Learned Counsel for the applicant states that inspite of clear directions and Rules regarding family pension towards divorced unemployed dependent daughter of a pension holder, the respondent authority has miserably failed in sanctioning the family pension of the deceased pension holder to the applicant inspite of her fulfilling all the criteria for obtaining the family pension of her mother, the applicant is unjustly deprived of her family pension. This action, rather inaction on the part of the respondent CPWD authority is a clear violation of the fundamental right of the applicant as well as in utter discrimination as several other similarly placed have been granted family pension but the case of the applicant has not been considered.

The applicant states that she was completely dependent upon her mother and after her death, the applicant is entitled for the family pension of her mother and for want of that she is passing her days in hardship as she has no independent income of her own.

Learned Counsel for the respondents submits that the applicant applied for family pension vide letter no. Nil dated 08/09/2021. In response to the application the respondents asked her to submit necessary documents required for further process vide letter dated 24/11/2021. After submission of the asked for documents, the office forwarded them to The P&AO, CPWD(EZ) vide letter dated 28/06/2022. The P&AO returned the case vide letter dated 02/11/2022 with remarks, a copy of which was handed over to Miss Moni Sarkar on 11/01/2023.

The respondents have not received the No Objection Certificate from other children of the deceased employee in favour of the applicant till date, thus the case of family pension could not be processed further. Lt. Purnima Sakar left behind 03 more children viz. Smt. Anindita Kundu, Smt. Sovana Sarkar & Shri Taraknath Sarkar along with the applicant i.e. Miss Moni Sarkar as per the service records of late Purnima Peon.

Ministry of personnel, Public Grievances and Pensions OM No. 01/16/2011- P&PW(E) dated 08/12/2021 has clarified that "The applicant has also to prove that no other surviving member in the family, who may have a prior entitlement for family pension is eligible. For this purpose, the above and/or any other documents, such as marriage/ death/income certificated of the other members, which may be essential in a given situation may be used". As no such documents was produced by the applicant, respondents could not process the case from his end.

The applicant has filed her rejoinder and reiterated the points made in the O.A. In addition, she states that in her case NOC from her siblings is not required because none of them is eligible for grant of family pension. Such NOC would have been necessary had anybody else other than her was eligible to receive family pension. Since she has submitted all other documents she ought to be granted family pension.

Heard the parties. Perused material on record.

From the submissions of the rival parties as well as from the pleadings it is apparent that eligibility of the applicant for grant of family pension is contingent upon her furnishing the NOC from her siblings in the form of an affidavit sworn before 1st class judicial magistrate. All other requirements have been met by the applicant including a certificate to the effect that she was dependent on her mother. This certificate has been issued by the SDO on the basis of a police report. Respondent Nos. 2 and 3 are directed to treat the SDO's certificate dated 03/01/2022 (Annexure A5 to the OA) as a valid dependency certificate and not to insist on a certificate from the Head of Office. Such a certificate is neither mandatorily required from the Head of Office nor is it logical to insist on it when the competent civil authority after due verification has already certified that she was dependent on her mother.

I now proceed to consider the issue of NOC from the applicant's siblings. In this context, DOP&T's OM dated 08/12/2011 is quoted below:-

The applicant has also to prove that no other surviving member in the family who may have a prior entitlement for family pension is eligible For this purpose, the above and/or any other documents, such as marriage/death/income certificates of the other members, which may be essential in a given situation may be used.

A plain reading of the above quoted provision makes it clear that in case of grant of family pension to anyone other than the spouse of the deceased employee, it has to be ascertained that there are no other eligible claimants to the family pension. An NOC from the sibling of the applicant will serve the purpose. Other documents like the marriage certificate, death certificate or income certificate of the persons who may have had prior eligibility (siblings of the applicant in this case) but are no longer eligible on account of age, marriage, death etc. can also be used. In this case, the applicant being the divorced daughter of the pensioner, an NOC from her siblings is required even if the siblings are no longer eligible for payment of family pension. Alternatively the applicant can produce proof of in eligibility of her siblings in the form of their birth income /marriage certificates.

Accordingly, the applicant is directed to furnish an NOC from her siblings in the form of an affidavit sworn before first class judicial magistrate and submit it to the respondents or furnish any other tangible proof of the ineligibility of her brother and sisters to receive family pension in the form of documents mentioned above. On receipt of the NOC or the proof, the Respondents will grant family pension to the applicant without insisting on any other document or requirement within a period of 60 days after the receipt of the NOC or the proof.

The O.A. is disposed of. No costs.