Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agrawal, J. allowed a second appeal filed by the first wife of the deceased who died in harness while working as Supervisor in Chhattisgarh State Power Generation Co. Ltd., and held that his second wife was not entitled to any share in the family pension.

Provisions of the Chhattisgarh Civil Services (Pension) Rules, 1976, provide that where a Government servant dies, while in service, the family of the deceased shall be entitled to contributory family pension. Rule 47(a)(i) provides that where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares.

First wife of the deceased filed a suit claiming the entire family pension. Per contra, the second wife relied on Rule 47(a)(i) and claimed an equal share in the family pension.

Relying on Section 5 read with Section 11 of the Hindu Marriage Act, 1955, and several decisions of the Supreme Court, including Lila Gupta v. Laxmi Narayan, (1978) 3 SCC 258 and A. Subash Babu v. State of A.P., (2011) 7 SCC 616, the High Court held that since the second wife married the deceased during subsistence of her marriage with the first wife, therefore, the marriage of the second wife with the deceased was void and she could not be said to be the legally wedded wife of the deceased and therefore her claim in the family pension was liable to be rejected.

Furthermore, reference was made to Rule 22 of the Chhattisgarh Civil Services (Conduct) Rules, 1965, sub-section (1) of which, prohibits Government servants for performing second marriage during the lifetime of their spouse living, without obtaining permission from the Government. The said prohibition is absolute and unconditional, and even if the personal law of the employee permits second marriage, then also, it is prohibited unless done with the leave of the Government. In other words, the applicable statutory rule will prevail over the personal law applicable to the Government servant concerned.

It was held that the second wife of the deceased Government employee was not entitled to any share in the family pension. Resultantly, the judgment of the first appellate court reversing the decision of the trial court and decreeing the second wife’s claim of equal share in the family pension was set aside. The Court also recorded appreciation for Hari Agrawal, Advocate, who acted as Amicus Curiae, for providing valuable assistance to the Court on short notice. [Nanbai Rathore v. Meena Bai, Second Appeal No. 373 of 2018, decided on 14-10-2019]

Case BriefsHigh Courts

Meghalaya High Court: H.S. Thangkhiew, J.  directed respondents 1 and 2 to substitute the name of petitioner in place of the deceased wife and directed them to communicate the same with respondent 3 for issuance of authorization for payment of pension.

The deceased husband of the petitioner worked as havaldar under respondent 2 and retired from service. After the death of his first wife, he married the petitioner, and out of the wedlock a female child was born. Thereafter the deceased employee had filed a representation to the authorities for the inclusion of the name of the petitioner and the child for the benefit of pension, but the said representation was not replied leading to the filing of a Writ Petition for necessary directions. However, during the pendency of the writ petition, he expired, after which the said writ petition was withdrawn and petitioner being lawfully wedded wife filed this petition.

Learned counsel of the petitioner S. Bhattacharjee, submitted that the petitioner should not be denied the pension as of Note (2) of Rule 48 of the Meghalaya Civil Services (Pension) Rules, 1983, permits post-retiral spouses and children born/adopted legally after retirement to be eligible for family pension. She further submitted that respondents had admitted the request of family pension and had informed the Accountant General.

Learned Additional Senior GA appearing on behalf of respondents 1 & 2 did not refute the submissions. He further referred to the letter issued by the Office of the Accountant General, wherein it was stated that change of nomination for family pension the deceased would depend upon the orders passed by this Court.

As there was no dispute regarding the marital status of the petitioner with regards to the deceased employee, it was directed that the name of the deceased wife be substituted with the name of the petitioner and same to be communicated to respondent 3 for issuance of authorization for payment of pension. The name of the child out of the said wedlock was also to be inserted.[Marcyana N. Marak v. State of Meghalaya, 2019 SCC OnLine Megh 89, decided on 15-05-2019]

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agrawal, J. has held that a Government servant is not entitled to make a Will of the family pension which is granted in accordance with the service rules.

Vijay Kumar Kaushik, Head Constable in the Police Department, died in harness. He had two wives and children from each of them. After his death, the first wife and her children (petitioners) made an application under Section 372 of the Indian Succession Act, 1925 for grant of Succession Certificate claiming family pension, gratuity, and other benefits. This was opposed by the second wife and her children (respondents) contending that Vijay Kumar had already made a Will in their favour and also nominated them in service records, and therefore the petitioners were not entitled for grant of succession certificate. Petitioner’s application was rejected by the trial court, which decision had been affirmed by the appellate court. Aggrieved thereby, the petitioners filed the present revision petition under Section 388(3) of the 1925 Act.

Shivali Dubey, Advocate appeared for the petitioners; Devesh Chandra Verma, Advocate represented the respondents (second wife and her children); and Hari Agrawal, Advocate appeared as amicus curiae, whose assistance was appreciated by the Court.

Applying the principles laid down by the Supreme Court in Jodh Singh v. Union of India, (1980) 4 SCC 306; Violet Isaac v. Union of India, (1991) 1 SCC 725; and Nitu Singh v. Sheela Rani, (2016) 16 SCC 229, the High Court recapitulated the guiding principles of law relating to retiral benefits vis-a-vis their testamentary disposition:

(i) An employee has no power of testamentary disposition with respect to something which was not payable to him during his lifetime.

(ii) If the qualifying event/benefit occurs only on the death of the deceased while he is in service and due to this, some monetary benefits accrue, it would not form part of the estate of the deceased and the same cannot be disposed by testamentary disposition because there is an element of uncertainty of happening of event.

(iii) If the scheme and/or service rules designate certain persons who are entitled to receive benefits out of the scheme, then no other person except those designated persons can be entitled to the said benefits.

(iv) If the employee makes no contribution to the benefit, he has no control over the same to dispose it by testamentary disposition.

(v) If the scheme/Rules do not provide for the nomination of any person during the lifetime of the deceased employee, he has no title to the same and it cannot be disposed by testamentary disposition.

However, it was made clear that the said principles are not exhaustive and the condition laid above are independent of each other and not mutually destructive and in the event of any of the conditions being fulfilled, it cannot be said that testamentary disposition can be made with respect to the said benefit.

In light of the principles, the Court decided the present revision petition under different heads. The disbursement of the family pension, gratuity and other retirement benefits in the present case were governed by Chhattisgarh Civil Services (Pension) Rules, 1976. As far as family pension was concerned, it was held that same was payable only to the family of a deceased employee, and Petitioner 1 being the legally wedded wife of Vijay Kumar, she was entitled to the entire amount of the said pension. Similarly, ex-gratia amount and police welfare amount were payable only after the death of the employee. As such, they did not form part of the estate of the deceased and thus could not be disposed by way of testamentary disposition. However, the benefits under the heads of gratuity, leave encashment, group insurance scheme, family benefits fund and department provident funds formed part of the estate of the deceased employee and therefore could be disposed by in terms of the Will made by the deceased employee.

Consequently, the petitioners were held entitled to the Succession Certificate with regard to family pension, ex-gratia and police welfare payment. The revision petition was disposed of in such terms. [Samunda Bai v. General Public, 2019 SCC OnLine Chh 29, dated 15-04-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The Bench of S.V.S. Rathore, J. and Lt. General N.B. Singh (Member) dismissed an application challenging the denial of family pension, holding that the same was without any substance.

Applicant herein claimed to be the eldest son of a deceased soldier Mohd. Rafique and applied for a family pension as he was totally blind. His claim for pension was denied by respondent on the ground that his name did not figure in the service book of Mohd. Rafique. Aggrieved thereby, the instant application was filed under Section 14 of the Armed Forces Tribunal Act, 2007.

Learned counsel for the applicant placed reliance on relation certificate issued by the SDM, Sultanpur, wherein apart from five other sons and daughters of Mohd. Rafique, the name of the applicant was also mentioned. Learned counsel for the respondents raised an objection to this certificate stating that the certificate clearly mentioned that it had been issued only for administrative purposes and that it could not be used in any court of law.

The Tribunal held that a plain reading of Regulations 216 and 219 of the Pension Regulations for the Army, 1961 (Part-1) made it clear that name in the service record as son of the applicant was a condition precedent to grant the relief claimed. Admittedly, the name of the applicant was not mentioned as nominee in the service record of the deceased soldier. This gave rise to an inference that the father of the applicant deliberately avoided mentioning the name of the applicant in the service record to debar him from such pension. Thus, the application was dismissed holding that there was no infirmity in the impugned order.[Akhtar v. Union of India, 2019 SCC OnLine AFT 3, Order dated 13-02-2019]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Alexander Thomas, J. while hearing civil writ petition filed for grant of freedom fighter’s dependant pension ruled that the same is available from the date of sanctioning order and not from the date of submission of an application for grant thereof.

Petitioner’s husband was the recipient of freedom fighter’s pension under Kerala Freedom Fighters’ Pension Rules, 1971. His application for grant of freedom fighters’ pension under the Central Swatantrata Sainik Samman Pension Scheme, 1980 (Central Scheme) was rejected. After his demise, the petitioner filed an application under the Central Scheme for grant of freedom fighter’s dependent pension. State government recommended grant thereof but Union government rejected her claim. In view of court’s order requiring Union government to reconsider petitioner’s claim, she was granted dependant pension from the date of the court’s judgment. The said order was challenged vide instant petition.

Contention on behalf of the respondent was that since the petitioner had made available only secondary evidentiary materials to prove her claim, she was entitled to grant of dependent pension only from the date of court’s judgment dated and not from the date of her application.

Relying on the dictum of Apex Court in Union of India v. Kaushalaya Devi, 2007 (9) SCC 525, it was held that since the petitioner had produced only secondary evidentiary materials in support of her claim, therefore, she was entitled to get dependant pension and its arrears only from the date of sanctioning order and not from the date of submission of her application.

However, the Court noted that secondary evidentiary materials submitted by petitioner had been duly acknowledged by the State government and despite the State government’s positive recommendation, the Central government had rejected the petitioner’s claim. Therefore, it was held that the petitioner would be entitled to pensionary benefits and its arrears from the date of State government’s recommendation and not from the date of court’s judgment requiring reconsideration thereof by the Central government. [Aleyamma Kunjappan v. Union of India,2018 SCC OnLine Ker 4909, decided on 22-10-2018]

Case BriefsHigh Courts

Meghalaya High Court: A Single Judge Bench comprising of Mohammad Yaqoob Mir, CJ., dismissed a petition claiming the family pension.

Facts of the case were that petitioner’s father was a constable and after his superannuation, he got retired in 1991. In the year 2009, the petitioner’s father expired. After he got expired his wife represented for grant of family pension which in the beginning was not granted and eventually an order withdrawing family pension was passed by AG’s Office to the Superintendent of Police. Since in 2017 wife also expired her daughter i.e. petitioner claimed family pension which was not considered. Hence, this petition was filed before the High Court.

Petitioner submitted that this petition was maintainable by virtue of amended Rule 48 of the Meghalaya Civil Services (Pension) Rules issued by Finance (Pension Cell) Department, Government of Meghalaya. According to the aforementioned rule family for the purpose of pension constitute a daughter which includes widow daughter, till the date of marriage or remarriage or till the date, she starts earning or till she turns 25 years old.

Issue before the Court was whether petitioner (daughter) can claim family pension after the death of the wife (petitioner’s mother) was found to be weakened by the fact that petitioner was otherwise not eligible to such family pension.

The High Court found that petitioner was married and above 25 years of age and by virtue of Rule 48 a married women cannot claim the family pension. Therefore, the petition was dismissed. [Prettilla M. Sangma v. State of Meghalaya,2018 SCC OnLine Megh 175, Order dated 27-09-2018]

Case BriefsHigh Courts

Meghalaya High Court: A Single Judge Bench comprising of Mohammad Yaqoob Mir, CJ. dismissed a writ petition filed against the order of denial of family pension to the petitioner.

Husband of the petitioner was in the Police Department under State of Meghalaya. After his death, the petitioner claimed family pension. The said claim was denied by the respondent Authorities, inter alia, on the ground that the marriage of the petitioner was solemnized with the deceased public servant in the year 1978, during subsistence of first marriage with his first wife. It was contended on behalf of the petitioner that marriage between the petitioner and the deceased was contracted in accordance with customs and usage in the local area which is protected under Section 3 of Hindu Marriage Act, 1955.

The High Court did not find favour with the contention of the petitioner and held that the marriage was void under Section 5(i) read with Section 11 HMA. It was further observed that registration of marriage in the year 2003 will not alter the position that marriage was contracted in 1978; knowledge or no knowledge of first marriage was immaterial. In such circumstances, it was held that the petitioner was not entitled to claim family pension. The petition was accordingly dismissed. [Debokala Thakuri v. State of Meghalaya, 2018 SCC OnLine Megh 93, dated 20-07-2018]

Case BriefsHigh Courts

Madras High Court: A Bench comprising of S.S. Sundar, J. has directed the respondent Accountant General, to disburse the family pension to the petitioner who was held entitled to it.

The petitioner’s father was a government servant and had two daughters. After the death of the parents, elder sister of the petitioner, who was a widow at that time, became entitled to the pension. Later on, she remarried and became ineligible to get family pension. Thereafter, the petitioner, being unmarried, claimed family pension. Her elder sister consented to the same and filed a sworn affidavit in which she relinquished her right to get family pension and expressed “No Objection” for the petitioner to get family pension.

The petitioner pointed out a G.O. which states that family pension is payable to the unmarried or widowed daughters of deceased employees even after the age of 25 years. The respondent on the other hand pointed out the admission of the petitioner, that the second husband of her elder sister has also died. Therefore, only the elder daughter, being a widow is eligible to get pension, as there is no provision in the G.O. which entitles younger daughter of a deceased government servant to get family pension. The Court stated that when the elder daughter had remarried, there is no impediment for the younger daughter to get family pension. Upon death of her 2nd husband, there is no provision to disqualify the 2nd daughter.

The Court stated that the petitioner is entitled to get the benefit of G.O. on happening of that event and she is eligible to get family pension, the said right cannot be taken away by any subsequent event which was not contemplated in the G.O. The G.O. has to be interpreted in such a way that as and when the elder sister of the petitioner remarried, she looses the right to get pension. Consequently, the Court held that the petitioner is entitled to get family pension. [S. P. Jothi v. Accountant General, Accounts and Entitlements, 2017 SCC OnLine Mad 1731, decided on 18.04.2017]

Case BriefsSupreme Court

Supreme Court: In the matter where the widow of a Government Employee aggrieved by the order of the High Court of Punjab & Haryana at Chandigarh where it was directed that 50% of the pension be paid to the mother of the Government Employee, the Court set aside the impugned order and held that the parents of a married officer are not entitled to receive the pension amount as per the the Family Pension Scheme, 1964.

The Bench of A.R. Dave and L. Nageswara Rao, JJ took note of the Scheme and said that the mother of the deceased is not included in the definition of the term “family” for the reason that as per the provisions of sub-clause (f), parents of an unmarried officer would be a part of the family.

Explaining the difference between the position of law under the Hindu Succession Act, 1956 and the Family Pension Scheme, the Court said that as far as the Succession Law is concerned, it is true that the properties of a Hindu, who dies intestate would first of all go to the persons enumerated in class I of the schedule as per the provisions of Section 8 of the said Act and therefore and hence, the properties of the deceased in the case at hand would be divided among the respondent mother and the appellant wife, provided there is no other family member alive, who would fall within class 1 heirs, but position in this case, with regard to pension, is different.

The Court said that it is pertinent to note that in this case the pension is to be given under the provisions of the Scheme and therefore, only the person who is entitled to get the pension as per the Scheme would get it. The Court, hence, directed that the full amount of pension be paid to the widow of the Government employee. [Nitu v. Sheela Rani, 2016 SCC OnLine SC 1004, decided on 28.09.2016]

Case BriefsHigh Courts

Madras High Court: While considering an interesting issue that whether the second wife of the deceased government employee is entitled to claim the family pension without production of her marriage certificate, the bench of Hariparanthaman, J., held that the petitioner (wife) is entitled to claim the family pension without requiring to present her marriage certificate before the concerned authorities if she proves herself to be the heir of the deceased.

The petitioner challenged the impugned Order by the respondent refusing her to claim the family pension. The counsel for the petitioner, R.Sunder Srinivasan contended that the petitioner, although the second wife of the deceased, had married him lawfully after the death of the deceased’s first wife therefore the respondent is not justified in refusing to grant family pension to the petitioner.

The Court on perusing the facts of the case observed that the petitioner has proved her eligibility as the heir of the deceased by producing documents like the death certificate of her husband and the birth certificate of her child, therefore the respondent is not justified in refusing the family pension to the petitioner as per the pension rules applicable to TANGDECO by making the production of the marriage certificate as a condition precedent to the grant of family pension. The Court directed the respondent to pay the family pension along with the due arrears to the petitioner, within eight weeks from the date of issuance of the Order. [G Pushpam v. Superintending Engineer, W.P(MD)No. 17926 of 2015, decided on 20.11.2015]