Somwati vs Union of India and Others

Rameshwar Singh Malik, J.—Present writ petition is directed against the order dated 25.05.2011 (Annexure P-2) as well as the order dated 15.12.2011 (Annexure P-4) passed by respondent authorities, whereby petitioner was denied the benefit of special family pension, on account of death of her late son, Rajesh Kumar. Notice of motion was issued and pursuant thereto written statement was filed on behalf of the respondents. Petitioner filed her replication.

Learned counsel for the petitioner, while placing reliance on Rule 54 of the CCS Pension Rules, 1972 ("Rules of 1972" for short), submits that Smt. Amita Devi w/o. late Rajesh Kumar has already remarried with one, Arvind on 03.03.2009 and she has given an undertaking, to the effect that she has no objection in case the special family pension is granted in favour of the petitioner. He further submits that the entitlement of the petitioner was hardly in dispute. However, since the respondent authorities misdirected themselves while not appreciating this crucial aspect of the matter, while passing the impugned order, the same was not sustainable in law. He prays for setting aside the impugned order, by allowing the present writ petition.

Learned counsel for the respondents submits that the case of the petitioner does not fall within the ambit of Rule 54 of the Rules of 1972, because widow of deceased employee was still available. He further submits that if Smt. Amita Devi widow of Late Sh. Rajesh Kumar comes forward at a later point of time to put her claim for the special family pension, the respondent authorities would be under legal obligation to grant the same to her, instead of the petitioner. He prays for dismissal of the writ petition.

Having heard the learned counsel for both the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this court is of the considered opinion that, in the given fact situation of the present case, instant writ petition deserves to be allowed for the following more than one reasons.

It is a matter of record and not in dispute that late Sh. Rajesh Kumar son of the petitioner was serving with the respondent authorities. He died on 15.05.2007, leaving behind his widow Smt. Amita Devi. It is the own pleaded and argued case on behalf of the respondents that Smt. Amita Devi has given a written undertaking that since she has already re-married with Mr. Arvind on 01.03.2009 and will not be staying with her in-laws, she has no objection in case the claim of the petitioner for family pension is accepted and the same is granted in her favour.

In this regard, averments taken in para 3 of preliminary objections in the written statement, read as under:-

"That Smt. Amita Devi gave an undertaking that she has remarried with one Arvind on 01.03.2009 and thus she will not be staying with her in-laws.

She also gave an affidavit that she has no issue from Rajesh Kumar and she has no objection, if the amount what-so-ever is due to her from the BSF is paid to the petitioner/Somwati, mother of Rajesh Kumar since deceased and she will not claim any amount from the BSF of any kind."

Once the above said undertaking was already been submitted by Smt. Amita Devi, widow of Late Rajesh Kumar, it clearly entitles the petitioner for grant of family pension under Rule 54 of the Rules of 1972. This factual aspect of the matter has gone undisputed on record. Having said that, this Court feels no hesitation to conclude that the impugned orders are patently illegal and the same can not be sustained.

A bare reading of the impugned order (Annexure P-2) shows that the above said material aspect of the matter, has not been considered, by the respondent authorities, before passing the impugned order. Similarly, the impugned order (Annexure P-4) is also patently illegal in this regard. It is undisputed on record that the petitioner, being the mother, was Class-I heir of deceased employee. When a pointed question was put to learned counsel for the respondents that once the petitioner falls in Category II Clause (d) of Rule 54 of the Rules of 1972 and comes within the definition of family then why she was not entitled for family pension, he had no answer and rightly so because it was a matter of record.

In the abovesaid circumstances of the case, petitioner may not be entitled for extra ordinary pension or special family pension but she is certainly entitled for grant of family pension under Rule 54 of the Rules of 1972. Thus, the petitioner is declared entitled for receiving the family pension on account of death of her late son Rajesh Kumar.

No other argument was raised.

Considering the peculiar facts and circumstances of the case, noted hereinabove, coupled with the reasons aforementioned, this court is of the considered view, that since the respondent authorities acted without jurisdiction and contrary to the abovesaid relevant provisions of law, while passing the impugned orders, the same can not be sustained and are hereby set aside.

Consequently, petitioner is held entitled for family pension with effect from the date of death of her son late Rajesh Kumar. Respondent authorities are directed to do the needful within a period of 3 months from today. In case the needful is not done within a period of 3 months, petitioner shall be entitled for arrears of family pension alongwith interest @ 9% from 15.05.2007 till the date of actual payment. Resultantly, with the above said observations made and directions issued, present writ petition is allowed, however, with no order as to costs.