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Judgment
Manindra Mohan Shrivastava, J.—By this petition under Article 226/227 of the Constitution of India, the petitioners have assailed correctness, legality and validity of order dated 10-2-2000 (Annexure P-7) in so far as it directs payments of 50% of the amount of family pension to respondent No. 5. The petitioners have prayed for direction to pay family pension to the petitioner @ Rs. 9,028/- per month. The petitioners have also prayed for direction to settle the claim of the petitioner for provident fund as well as death-cum-retirement gratuity. The petitioners have also prayed for direction for grant of compassionate appointment to petitioner No. 1. During the course of arguments, however, learned counsel for the petitioners confined his submissions only in so far a challenge to order dated 10-2-2000 (Annexure P-7) and claim for compassionate appointment are concerned.
Brief factual matrix, relevant for determination of controversy involved in the petition, are that B.L. Soni, husband of petitioner No. 1, died on 1-2-1991 while in service. It is the case of the petitioner No. 1 that her husband Late B.L. Soni performed first marriage with one Usha Devi and there was no issue out of this wedlock. Usha Devi died in the year 1987 and, thereafter, Late B.L. Soni married petitioner. Out of this wedlock, two sons, petitioners No. 2 & 3 were born. Respondent No. 5 is the nephew (brother'' son) of Late B.L. Soni. According to the petitioners, respondent No. 5 is not dependent, but is earning. Even though the petitioner claimed payment of family pension to her, she being the widow of deceased Govt. employee, she was informed vide communication dated 13-10-1995 (Annexure P-5) that family pension is to be apportioned between the petitioner and respondent No. 5. This was objected to by the petitioner vide representation (Annexure P-6) which was ignored and impugned order was passed on 10-2-2000, by which 50% of the amount of family pension alone has been sanctioned for the petitioner upto 1-2-2006 with further stipulation of payment of amount of Rs. 2,709/- per month as family pension. 50% amount of pension has been granted to respondent No. 5 for the period from 2-2-1999 to 6-9-1999 i.e. upto to the age of 25 years.
Learned counsel for the petitioners argued that the petitioner No. 1, being the widow, alone is entitled to full family pension and pension amount could not be apportioned between the petitioner No. 1 and respondent No. 5 as long as petitioner No. 1 is alive. Alternative submission of learned counsel for the petitioners is that even if it is assumed that till attaining the age of 25 years i.e. upto 6-9-1999, such apportionment was permissible under the relevant rules, after respondent No. 5 became ineligible to get pension upon completion of 25 years of age, the whole amount of family pension was to be paid to the petitioner after 6-9-1999. It is argued that distribution of family pension amount to more than one eligible persons, under the scheme of the rules, is merely a facility to more than one persons to get benefit of family pension. But, when other persons are rendered ineligible for any reason to get their share of family pension amount, the entire amount of family pension is liable to be paid to one who is eligible and getting a part of pension.
Learned counsel for the petitioners also contended that compassionate appointment policy entitled petitioner No. 1 to get compassionate appointment, but she has not been granted the said benefit. Therefore, a direction be issued in this regard also.
Submission of learned counsel for respondents No. 1 to 4 is that respondent No. 5 was adopted son of deceased employee. Further, deceased employee had made a nomination in his favour also. In such a case, according to pension rules, respondent No. 5 is also entitled to pension in equal share with the petitioner No. 1. Claim of compassionate appointment has been denied on the ground that petitioner is not entitled to such benefit after such a long time when she has managed to earn livelihood for herself and two children all these years.
It is not in dispute that the provisions of Madhya Pradesh Civil Services (Pension) Rules, 1976 (for short "the Rules of 1976") have been adopted by the Electricity Board for its employee. This is clear from the return of respondents.
Grant of family pension is governed by the provision contained in Rule 47 of the Rules of 1976. A bare perusal of sub-rule (2) of Rule 47 reveals that upon death of Govt. servant either while in service or after retirement from service, the family of the deceased shall be entitled to a contributory family pension. This provision further provides for determination of the amount. The determination of the amount of family pension depends upon the pay of the deceased employee. Under sub-rule (3) of Rule 47, higher rate of family pension is prescribed in cases where employee dies having rendered not less than seven years continuous service. In such a case, the rate of family pension to the family is equal to 50% of the pay last drawn or twice the family pension admissible under sub-rule (2), whichever is less, with further stipulation that the amount so admissible shall be payable from the date following the date of death for a period of seven years or up to the date on which the employee would have attained the age of 65 years had he survived, whichever period is less. Sub-rule (3)(b) of the Rule 47 makes provision where Govt. servant dies after retirement. There also the amount of family pension is calculated on the basis of the pay last drawn by the pensioner. Similarly sub-rule (3)(c) also deals with other contingencies. But there also, the rate of family pension is based on the pay of the deceased employee. Rule 3(d) further provides that after the expiry of the period referred to in clause (a) or (b), the family, in receipt of family pension under those clauses or clause (c), shall be entitled to family pension at the rate admissible under the sub-rule (2). The aforesaid provisions contained in sub-rules (2) and (3) of Rule 47, makes it explicitly clear that the amount of family pension is required to be calculated on the basis of the pay drawn by the servant who died either while in service or after retirement.
Rule 47(7) provides for apportionment of the family pension in case where there are more than one eligible persons entitled to receive family pension. Rule 47(7)(b) provides as follow:
47(7)(b)--Where the deceased Govt. servant or pensioner is survived 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 death of Govt. servant or pensioner.
The aforesaid provision shows that in cases where deceased servant or pensioner is survived 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 death of the servant. In the present case, the respondents authority have determined on the basis of nomination made by the deceased employee that respondent No. 5 is son of the deceased employee. In fact, nomination which has been placed on record, clearly shows respondent No. 5 as the son of deceased employee. It is, therefore, clear that respondent No. 5 has been held entitled to 50% share of pension in his capacity as the son of wife who is not alive. Though a dispute has been raised by the petitioner before the Court with regard to status of respondent No. 5 as the son of Late B.L. Soni, in the return filed by respondent No. 5 as well as by the official respondents, it has been stated that he was the adopted son of the deceased employee. Respondent authorities have accepted this on the basis of the nomination made by the deceased employee. Therefore, no further enquiry in this regard was required to be made by the employer. The employer cannot go into the question of legality or validity of the adoption. Once the deceased employee has made a nomination in favour of respondent No. 5, as his son, he is entitled to be treated as such. Therefore, I am unable to accept the contention that respondent No. 5 was not entitled to receive any share. The entitlement of respondent No. 5 to receive share in the family pension is clearly borne out from the provisions as referred to above.
The next question which arises for consideration is whether after respondent No. 5 is rendered ineligible to receive pension upon attaining the age of 25 years, petitioner would continue to receive only 50% of the pension or the share of pension which was being paid to respondent No. 5 will revert back to the petitioner.
The provisions contained in Rule 47 are silent in that regard. Therefore, this aspect is to be examined keeping in view the spirit and object of grant of family pension under the Rules of 1976. As has already been referred to herein-above, the amount of pension payable under the rules is dependent on the pay of the deceased employee. This is graphically clear from bare reading of the provision contained in Rule 47(2), (2A) and (3) referred to above. Apportionment of the amount of pension so derived on the basis of pay of the deceased employee takes place only in case where there are more than one eligible members of the family entitled to receive family pension. The provision intends to benefit more than one member of family of the deceased employee without, however, containing any stipulation to the effect that where more than one eligible members of family are there, pension shall be separately calculated for each of them. The laudable object based on public policy behind such provision is to provide financial support to the members of the family of the deceased employee. This provision certainly has nothing to do with the fixation of family pension under the rules. As far as fixation of family pension is concerned, that fixation is done under the formula provided in sub-rule (2), (2A) and sub-rule (3) of the Rule 47. Once family pension is fixed according to that formula, it becomes payable to the eligible members of the family whether one or more in number. In case there is only a widow, she would be entitled to full family pension. In case there are some other category of members of the family as specified in sub-rule (7), they all will be entitled to receive family pension. This, therefore, logically follows that where, for any reason, other family members are rendered ineligible to receive family pension, one who is eligible to receive family pension will receive full amount of family pension determined in the manner provided under sub-rule (2), (2A) and sub-rule (3) of Rule 47. Therefore, in a case where widow and son of a pre-deceased wife both are getting family pension in equal share by virtue of provision contained in sub-rue (7)(b) of Rule 47, the moment son of predeceased wife is rendered ineligible to get family pension on account of he attaining the age of 25 years, the whole amount of family pension would become payable to the surviving widow. Neither expressly nor by any necessary intendment, it follows from any of the provision of the rules that in the eventuality where one of the recipients is rendered ineligible, the amount of family pension which was being paid to such recipient, would not be payable to the other recipient. It has to be noted that provisions of family pension are in the nature of beneficent provision of law meant to provide financial are rendered ineligible, the amount which was being paid to such recipient would lapse and would not revert back to one who continues to be eligible recipient of family pension. The view of this Court finds support from the benefit to the eligible members of family of the deceased. Therefore, there is no need to give restricted meaning to hold that where family pension is being paid to more than one eligible recipient and, thereafter, the other recipient or recipients judgment of the learned single Judge of High Court of Madhya Pradesh in the case of Dropti Bai v. High Court of Madhya Pradesh and another W.P. No. 6373/2000, decided on 26-2-2012. A copy of the order is placed on record as Annexure A-1 along with an application for final disposal of the petition.
Therefore, this Court is of the view that even though apportionment of family pension under impugned order between the petitioner and respondent No. 5 does not warrant any interference, after respondent No. 5 is rendered ineligible on account of he having attained the age of 25 years i.e. after 6-9-1999, the petitioner would be entitled to full amount of family pension i.e. Rs. 9,028/- for the period stipulated in the order dated 10-2-2000 (Annexure P-7). The respondents are accordingly directed to work out the balance amount payable to the petitioner.
In so far as claim of petitioner No. 1 for grant of compassionate appointment is concerned, in the peculiar circumstances of the present case where the petitioner No. 1, who alone was eligible to get employment in the year 1999, has now attained more than 60 years of age (as per the age disclosed in the cause title), I am not inclined to issue any such direction in favour of petitioner No. 1. Claim in that regard is rejected.
Accordingly, it is directed that full amount of family pension payable to the petitioner as per the direction of this Court shall be paid by the respondents as early as possible preferably within a period of 3 months from the date of receipt of copy of this order. The petition is according partly allowed in the manner and to the extent indicated above.