Sunita vs State Of Uttarakhand & Others

Sharad Kumar Sharma, J

The admitted facts of the writ petition are that the late husband of the petitioner, who was then working as an Assistant Teacher (LT) Grade, after his initial appointment on 05.12.1990, had worked in the said capacity in the Government Inter College, Matkoorio Sain Gyarhgaon Hindabadh, Block Bhilanghana District Tehri Garhwal. The late husband of the petitioner had solemnized the marriage with the petitioner on 06.02.1998. Out of the wedlock, two children were born namely, the son Paras and daughter Pragati.

The husband of the petitioner on account of his ailment while, he was serving with respondent no.5 had met with the sad demise on 04.08.2014 in Doon Hospital. As a consequence of the death of the late husband of the petitioner, Mr. Suresh Kumar, the information about his death was simultaneously also imparted to the employer of the deceased/husband and after fulfilling all the codal formalities the petitioner has craved for payment of family pension, provident fund, gratuity, insurance covers, dues etc, payable as service dues of her late husband.

The petitioner contends that respondent no.5, responded to the said claim raised by the petitioner in the capacity of being a widow, by recommending the same to respondent no.2, to verify the provident fund passbook and other documents for the grant of pensionary benefits, when no action proceeded and no amount was provided to the petitioner, to her claim for the grant of family pension, she preferred a writ petition praying for a writ of mandamus to the respondents for the payment of family pension to the petitioner and for the payment of provident fund, gratuity and insurance amount dues etc. of her late husband.

During the pendency of the writ petition, Smt. Janki Devi, the mother of the late husband of the petitioner i.e. the mother-in-law of the petitioner had filed an impleadment application on 30.06.2015 on the ground, that all rights and interest of the property vested with late son of the applicant, has been divested to her by way of a will of 01.07.2014, coupled with the fact it was claimed by her that all the other documents shows that the applicant Smt. Janki Devi was dependent on her late son Suresh Kumar. The application thus filed for impleadment under Order 1 Rule 10 of C.P.C., on 30.06.2015, it remained pending till date and no orders have been passed on the same. If at all, the applicant had any right devolved upon her by virtue of the alleged will of 01.07.2014, she will have to have the legal recourse available to her to establish her legal action before the competent civil court for determination of her rights based on the will and the service benefits it will not automatically flow to her nor it will camouflage or cloud a right which accrues to the petitioner as a consequence of the service Rules applicable governing the service conditions of late husband of the petitioner, the issue would be that, out of the two applicant i.e. Smt. Janki Devi, mother of the deceased and Smt. Sunita, the petitioner, who was wife of the, deceased who would be entitled for the grant of retiral benefits payable due to the death of the late husband of the petitioner.

Learned counsel for the petitioner submits that as per the provisions contained under U.P. Retirement Benefit Rules of 1961 as framed under the proviso to Article 301 of the Constitution of India, the aspect of determination of family pension is contained under part III of the said Rules. If part III is taken into consideration particularly that as provided under its Clause 7 (3) it reads as under:-

“No pension shall be payable under this part-

(a) to a person mentioned in clause (b) of sub-rule (4) below, unless the pension sanctioning authority is satisfied that such person was dependent on the deceased officer for support;”

It has been argued by the learned Deputy Advocate General that since the present petitioner was working as a teacher, at the relevant point of time, she will not be treated to be the dependent upon her late husband and she will be ousted from the eligibility from grant of family pension, owing to the implications of Clause 3(a), so is the argument which has been extended by the applicant to the impleadment application Mrs. Janki Devi. But this Court is not in agreement with the argument which has been extended by the learned counsel for the parties/respondents, as far as the implications of Clause 3(a) is concerned for the reason being Clause 3 of part III starts with a non obstinate Clause creating a restriction on the payment of pension and the restriction provided under Clause (a) pertains to determination of dependency of persons covered under Clause (b) of Clause 4 of the Rules of 1961 and that is why under Clause 3(a) where it refers to the two terms i.e., namely,

i. person

ii. Such person,

It would mean that the “person” herein denotes a person prescribed under Clause 4(b) and its in that eventuality where a pension is to be rendered to the persons covered under Clause 4(b) it has to be then only satisfied by the sanctioning authority, as to whether at all there happens to be an entitlement or not. Hence, the use of the word of such “person”, under Clause 3(a) will relate to such persons, which are covered by Clause 4(b) and not by the person who are covered by Clause 4 (a) of the Rules of 1961. Rule 3 is extracted hereunder:-

“(3) No pension shall be payable under this part-

(a) to a person mentioned in clause (b) of sub-rule (4) below, unless the pension sanctioning authority is satisfied that such person was dependent on the deceased officer for support;”

(b) to an unmarried female member of the family, in the event of her marriage;

(c) to a widowed female member of the family, in the event of her re-marriage;

(d) to a brother of the deceased officer on his attaining the age of 18 years; and

(e) to a person who is not a member of the decease officer’s family.

(4) Except as may be provided by a nomination under sub-rule

(5) below:

(a) a pension sanctioned under this Part shall be granted-

(i) to the eldest surviving widow, if the deceased was a male officer or to the husband, if the deceased was a female officer;

(ii) failing the widow or husband, as the case may be to the eldest surviving son;

(iii) failing (i) and (ii) above, to the eldest surviving unmarried daughter;

(iv) these failing, to the eldest widowed daughter and

(b) in the event of the pension not becoming payable under clause (a) the pension may be granted-

(i) to the father;

(ii) failing the father, to the mother;

(iii) failing the father and mother both, to the eldest surviving brother below the age of 18;

(iv) these failing, to the eldest surviving unmarried sister;

(v) failing (i) to (iv) above, to the eldest surviving widowed sister; and (vi) failing (i) to (v) above, to the children of a predeceased son in the order it is payable to the children of the deceased officer under clause (a) (ii), (iii) and (iv), above.”

I am of the view that in view of the provisions contained under Clause 3(a) of the Rules of 1961; Clause 4(a) is absolutely independent to Clause 4(b), due to clear distinction drawn by Clause 3(a) of the Rules of 1961, and the rights flowing to the persons mentioned under Clause 4(a) is not clouded by the determination of right by sanctioning authority for the payment of family pension, to those persons who stand covered under Clause 4(b). Meaning thereby Clause 4(b) has not got its independent legislative existence. The only restriction is that it is in an eventuality, if it’s only when there is a non-suitability of any person under Clause 4(a) of Rules of 1961, which is not covered under Clause 3(a), the family pension is to be given to those person who are covered under Clause 4(b), it was then only Clause 3(a), would be attracted not otherwise. In that eventuality, since the petitioner admittedly being a widow she will be falling under Sub Clause (a) of Clause 4 of the Rules of 1961, being the surviving widow, the consideration claim of persons falling under Clause 4(a), will not figure, necessitating compliance of procedure of determination provided under Clause 3(a).

The learned Deputy Advocate General draws a distinction about the entitlement of the petitioner to receive a family pension on the grounds:-

As pleaded in para 4 of the counter affidavit, that her name does not find place in the service records of late husband, as to be a nominee of his.

That since she being already engaged as a teacher, she will not be entitled for grant of pension.

This argument of learned counsel for the respondent/state is not accepted as raised by the learned Deputy Advocate General for the State, for the reason being that under the Rules of 1961, for the purposes of remittance of pension under part III of the Rules of 1961, Clause 4(a), where it makes the eldest surviving widow to be entitled for receipt of family pension, is not preceded with satisfying the conditions of being a nominee or not being employed in any other engagement, because as already observed, the aspect of determination of dependency has been exclusively confined to be made applicable to the class of dependents covered under Clause 4(b) and not for the purposes of dependents covered under Clause 4(a) of the Rules of 1961.

The argument of the learned Deputy Advocate General pertaining to non mentioning of the name of the petitioner in the service records, is not acceptable by this Court because in the counter affidavit the pleading qua para 4 has been raised has been sworn on the basis of the record, but no record as such has been placed as such on record by the respondents counsel, hence no plausible inference could be drawn from his arguments.

As far as the arguments of learned counsel for the applicant to the implement application is concerned, Smt. Janki Devi, who is yet to be impleaded as party, since she claims her right over the assets of her late son of the applicant, on the basis of the registered will, her determination of rights will be falling within an exclusive domain of the civil court jurisdiction, of the courts created under law. But so far as the service jurisdiction is concerned, the petitioner, who is a widow, would fall to be a class of heirs under 4(a) and she would be entitled for the payment of family pension under Part III of the Rules of 1961.

In view of the aforesaid, the writ petition is allowed. The writ of mandamus is issued to the respondents to forthwith determine the family pension under Part III payable to the petitioner widow, who has been held to be a dependent under Clause 4(a) of the Rules of 1961 and a claim to the contrary by the successors as provided under Clause 4(b) of the Rules of 1961, will not create any embargo in determination of pension payable to the petitioner widow. For the reasons aforesaid, the writ petition stands allowed. The writ of mandamus is issued, accordingly.