W.P. (S) No. 989 of 2006
In the matter of an application under Article 226 of the Constitutional of India.
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Smt. Gita Devi ... ... Petitioner
Versus
1. The State of Bihar through the Secretary,
Department of Personnel and Administrative Reforms, Patna.
2. The State of Jharkhand through the Secretary, Department of
Personnel and Administrative Reforms, Ranchi.
3. The Deputy Commissioner, Dumka.
4. The Treasury Officer, Dumka.
5. The Accountant General, Bihar, Patna. ... ... Respondents
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For the Petitioner : Mr. Rupesh Singh, Advocate
For the State : J.C. to Sr. S.C.-II
For the Accountant General : Mr. S. Srivastava, Advocate
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PRESENT
HON'BLE MR. JUSTICE R.R. PRASAD
By Court : 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.
(R.R. Prasad, J.)
Jharkhand High Court, Ranchi
Dated the 25th August, 2011
N.A.F.R./AKT