Civil Writ Petition No. 7741 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.7741 of 2007 Date of decision: April 23, 2008 Smt. Balwant Kaur and another … Petitioners Versus State of Punjab and another. … Respondents CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. A.S.Khaira, Advocate for the petitioners. Mr. Lekh Raj Sharma, Addl. AG Punjab with Mr. Yatinder Sharma, DAG Punjab for the respondents. ASHUTOSH MOHUNTA, J. (ORAL) The petitioner has prayed for quashing the order dated 04.01.2007 passed by the General Manager (Accounts) on behalf of the Secretary, Punjab State Agricultural Marketing Board, Chandigarh (Annexure P-1) vide which family pension of the petitioner was stopped and the recovery of the amount of family pension has been ordered after a period of 7 years. Husband of the petitioner, Devinder Singh who was working as a Chowkidar in the Punjab State Agricultural Marketing Board, Chandigarh expired on 04.07.1999 while in service. Thereafter, the petitioner contracted a second marriage with the younger brother of her husband. Civil Writ Petition No. 7741 of 2007 2 She also informed the Administrative Officer of Punjab Mandi Board vide letter dated 25th July 2001 that she has solemnized marriage with the younger brother of her deceased husband Devinder Singh. Despite the fact that the information was duly given by the petitioner to the respondents, she was continued to be paid the family pension. Subsequently, the respondents realized that as the petitioner has already contracted a second marriage, therefore, she is not entitled to any family pension, hence they have passed the impugned order dated 04.01.2007 (Annexure P-1) wherein the petitioner has been asked to refund a sum of Rs.1,47,864/- received by her as family pension. Further, the family pension of the petitioner has also been stopped. Counsel for the petitioner submits that there was no mis- representation on behalf of the petitioner and further that the petitioner never concealed the factum of her second marriage and therefore the respondents cannot effect any recovery from her. Mr.L.R.Sharma, counsel for the respondent no.2, however submits that as soon as the mistake of making payment of family pension to the petitioner was detected by the department, the impugned orders have been passed. The short question that arises in this petition is whether the family pension of a widow, who has contracted a second marriage with the younger brother of her deceased husband, can be stopped and whether the recovery of the family pension, which has already been paid, can be effected from her. In this regard it would be relevant to reproduce rule 8.35 of the Punjab Civil Service Rules Vol.2, Chapter VIII, which is as under: “8.35 (1) A family pension will take effect from the day following the death of the Government employee or from such other date as the competent authority may decide. (2) A family pension will ordinarily be tenable – Civil Writ Petition No. 7741 of 2007 3 (a)(i) in the case of widow or mother until death or re- marriage whichever occurs earlier. (ii) in the case of a minor son, or minor brother, until he attains the age of 18; (iii) in the case of an unmarried daughter or minor sister, until marriage or until she attains the age of 21, whichever occurs earlier. (iv) in the case of a father, for life. (b) Notwithstanding anything contained in sub-clause - (a) a widow who re-marries her deceased husband’s brother and continues to life a communal life with or contributes to the support of other dependants of her deceased husband shall not be disqualified for the grant of extraordinary pension otherwise admissible to her under these rules. Note 1. – A family pension granted to a posthumous child should commence from the date of his/her birth and not from the date of death of his/her father. Note 2. – The family pension of a widow will cease on re-marriage but when such re-marriage is annulled by divorce, desertion or death of the second husband her pension may be restored upon proof that she is in necessitious circumstances and otherwise deserving.” Clause 2(b) of rule 8.35 Punjab Civil Service Rules Vol.2, Chapter VIII clearly stipulates that a widow, who has remarried her deceased husband’s brother and continues to live a communal life and contributes to the support of other dependants of her deceased husband, shall not be disqualified for the grant of extraordinary pension, otherwise admissible to her under Civil Service Rules. In the instant case, a perusal of Annexure R-2 written by the petitioner to the Administrative Officer, Punjab Mandi Board dated 25.07.2001 clearly shows that she has solemnized her marriage with the younger brother of her deceased husband. The petitioner is also supporting four children born out of Civil Writ Petition No. 7741 of 2007 4 her wedlock with her deceased husband. Although, the petitioner has averred in this writ petition that she has not contracted a marriage with the brother of her deceased husband and has only entered into an arrangement and continues to live a communal life with the family of her deceased husband, but this averment seems to be an afterthought in order to protect her family pension. The remarriage of a widow with the younger brother of her deceased husband entitles her for the grant of family pension in terms of rule 8.35(2)(b) of the Punjab Civil Service Rules Vol.2, Chapter VIII and hence, the order dated 04.01.2007 passed by the General Manager (Accounts) (Annexure P-1) holding that petitioner is not entitled to family pension and further ordering recovery from the petitioner for the amount already paid to her as family pension, cannot be sustained. Resultantly we quash Annexure P-1 and hold that the petitioner is entitled to family pension. We further hold that the respondents are not entitled to recover the family pension already paid to the petitioner. Writ petition allowed. [ASHUTOSH MOHUNTA] JUDGE [KANWALJIT SINGH AHLUWALIA] JUDGE April 23, 2008 rps