Smt. Gita Devi vs The State of Bihar and Others

R.R. Prasad, J.—Heard the parties.

Learned Counsel appearing for the Petitioner submits that Radha Krishna Bhagat had earlier married to Lila Devi who died on 18.8.1988. After her death, Radha Krishna Bhagat married this Petitioner on 11.11.1988. Unfortunately, the Petitioner''s husband died in harness while he was posted as Executive Magistrate, Dumka on 31.7.1991. Thereupon, sanction order was passed on 15.2.1993 for payment of family pension and gratuity to the Petitioner being widow of the deceased employee. However, that order was cancelled and a fresh order was passed on 30.11.1996 sanctioning payment of 50% of pension to the Petitioner and rest of 50% to the children of first wife with a stipulation that as soon as the children of first wife would attain age of majority, the amount of family pension would be paid to this Petitioner in addition to what she was getting family pension to the extent of 50%. When the children of first wife attained majority, this Petitioner made representation before the Treasury Officer, Dumka for making payment of the amount of full family pension. The Treasury Officer, Dumka on 18.7.2002 wrote a letter to the Accountant General seeking direction in the matter relating to payment of full pension to the Petitioner. The Accountant General in turn wrote to the concerned department as well as the Finance Department to take a decision in the matter and to communicate it to the Petitioner under intimation to Personnel and Administrative Reforms Department. In response to that, a decision was taken by the Department of Finance, as contained in Letter No. 4638 dated 17.11.2003 (Annexure-4), whereby it was communicate to the office of the Accountant General that after attainment of age of majority of the children of first wife, the amount of family pension, which was being paid to the children of first wife, gets ceased in view of note appended to Clause 7 (III) of Memo No. 9505 dated 3.9.1964 issued by the Department of Finance and as such, it is not transferable to the surviving widow-Petitioner. Subsequently, the Department of Personnel and Administrative Reforms vide its Letter No. 5936 dated 21.7.2004 (Annexure-6/A) also communicated its decision of the same effect to the Accountant General who in turn vide its Memo No. PEN-2-3499 dated 9/14.1.2004 (Annexure-5) and Letter No. PEN-2-2940 dated 19.10.2004 (Annexure-6) communicated to the concerned Treasury Officer. The said orders, as contained in Annexures-4, 5 and 6, have been sought to be quashed.

Mr. Rupesh Singh, learned Counsel for the Petitioner, submits that while apportioning the amount of pension in between the Petitioner and the children of first wife, a decision had been taken that as soon as the children of first wife attain majority, the pension, which was being payable to them, would be paid to the Petitioner being widow of the deceased employee but under the impugned orders that right has been taken away by invoking provision as contained in Note-1 of Rule 7 (III) of Memo No. 9505 dated 3.9.1964 which would not be applicable in this case. Moreover, on the date when the impugned order was passed, it had already been deleted by virtue of a circular as contained in Memo No. 10059 dated 6.9.1996 and under this situation, the Petitioner would be entitled to have rest part of 50% of family pension which was being paid to the children of first wife after attainment of age of majority by virtue of the order, as contained in Annexure-3, as the right accrued to the Petitioner cannot be taken back without any justification and in absence of any sanction of law and, therefore, the impugned orders, as contained in Annexures 4, 5 and 6, are fit to be quashed.

I do find substance in the submission advanced on behalf of the partitioner.

Admittedly, the Authority on finding that the Petitioner being widow of the deceased employee and the children of first wife are the claimants decided to apportion the amount of family pension in between the Petitioner and the children of first wife in the ratio of 50%. While passing such order, specific stipulation was made under an order, as contained in Memo No. 5067/92 Ka 12707 dated 30.11.1996 (Annexure-1/A) that after attainment of age of majority by the children of first wife, the amount of family pension, which was being paid to them, would be paid to the Petitioner. The said order was again reiterated vide Memo No. 8371 dated 15.11.2003 (Annexure-3). After the children of first wife attained majority, the Petitioner made representation in the light of the order, as contained in Annexures-1/A and 3 but the payment of full family pension was denied under Annexure-4 taking the ground that relevant Note-1 appended to Clause 7 (III) of Memo No. 9505 dated 3.9.1964 never contemplates such situation. Therefore, said provision needs to be taken notice of. Note-1 to Clause 7 (III) of Memo No. 9505 dated 3.9.1964 reads as follows:

Where an officer is survived by more than one widow, the pension will be paid to them in equal share. On the death of a widow her share of the pension will become payable to her eligible minor child. If at the time of her death, a widow leaves no eligible minor child, the payment of her share of the pension will cease.

Thus, the aforesaid provision what does contemplate is that if the deceased employee is survived by more than two widows, both are entitled to get pension in equal share. On death of a widow, her share of pension will be payable to her eligible minor child. It does further stipulate that if a widow dies without leaving any child, the amount of pension, which she was receiving, gets ceased. But here in the instant case the first wife never died without leaving any child rather children of first wife were getting pension until they attained the age of majority. Thus, the aforesaid clause was never applicable in the case of the Petitioner. Moreover, on the date when the claim of this Petitioner was rejected, that provision was not in existence as the same had been superseded by another circular issued in the year 1996 vide Memo No. 10059 dated 6.9.1996. Thus, the situation is that after the children of first wife attained majority, this Petitioner being widow of the deceased employee would be the only claimant and, therefore, full family pension cannot be denied to her. For other reason also, she would be entitled to full pension. At the time of apportionment of the amount of pension, a specific order was there that after the children of first wife attain majority, the amount of family pension, which was being paid to them, would be paid to the Petitioner and as such, now the Authority without there being any justification cannot be allowed to turn his back to say that it is not admissible.

In that view of the matter, the orders, as contained in Letter No. 4638 dated 17.11.2003 (Annexure-4), Memo No. PEN-2- 3499 dated 9/14.1.2004 (Annexure-5) and Letter No. PEN-2-2940 dated 19.10.2004 (Annexure-6), are hereby set aside.

Accordingly, the Secretary, Department of Personnel and Administrative Reforms, Ranchi (Respondent No. 2) is directed to pass necessary order relating to sanction of payment of full family pension to the Petitioner within two months from today so that it be sent to the office of the Accountant General for issuance of the authority letter. Consequently, the Petitioner would be entitled to have arrears of family pension from 28.12.2002 when the youngest child of the first wife attained majority.

In the result, this application is allowed.