IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 616/2002 Reserved on: 10.9.2009 Decided on:16.12. 2009 ________________________________________________ Smt. Jagtamba Devi. …Petitioner. Versus State of Himachal Pradesh and others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Acting Chief Justice. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 yes For the petitioner : Mr. Romesh Verma, Advocate. For the Respondents: Mr. Ankush Sood, Additional Advocate General with Mr. J.K. Verma, Deputy Advocate General for respondents No.1 and 2. ________________________________________________________ Rajiv Sharma, Judge The petitioner by medium of this petition has assailed the judgment rendered by the Himachal Pradesh Administrative Tribunal in OA No. 232/2000 decided on 4.1.2002. Material facts necessary for the adjudication of this petition are that the petitioner’s son late Sh. Varinder Mohan was holding diploma in Civil Engineering. He was appointed as Junior Engineer in 4th Circle, HPPWD, Shimla vide office order dated 9.12.1980. He joined his duties on 19.12.1980. He died on 15.2.1981. A sum of Rs. 7,000/- was paid to the petitioner on 19.10.1982. A sum of Rs. 273/- 1 Whether reporters of the local papers may be allowed to see the judgment? 2 was paid to her on 30.8.1992 on account of arrears of salary for the period with effect from 1.1.1981 to 5.1.1981. She made various representations to grant family pension to her due to sad demise of son. The family pension was sanctioned on 20.6.2000. However, this order was withdrawn by the respondents subsequently. The petitioner approached the Himachal Pradesh Administrative Tribunal by way of OA No. (D) 232/2000 seeking family pension. The same was rejected by the Himachal Pradesh Administrative Tribunal on 4.1.2002. Mr. Romesh Verma has vehemently argued that the judgment rendered by the Himachal Pradesh Administrative Tribunal on 4.1.2002 is contrary to law. He then contended that his client is eligible to get the family pension due to sad demise of her son on 15.2.1981. He further argued that the petitioner was wholly dependent on her son, who was employed as Junior Engineer on 19.12.1980. He lastly contended that the action of the respondents to withdraw the family pension, which was initially sanctioned on 20.6.2000 by way of Annexure P-18, is violative of Articles 14 and 16 of the Constitution of India. Mr. Ankush Sood, learned Additional Advocate General has supported the judgment of the Himachal Pradesh Administrative Tribunal. He then contended that the parents were not dependant on the income of the deceased. The petitioner’s husband was employed as Junior Basic Trained Teacher (JBT) and is getting pension of Rs. 3257/- per month. Accordingly, the petitioner is not entitled to get the family pension. We have heard the learned counsel for the parties and perused the pleadings carefully. 3 It will be apt at this stage to refer to Government of India decision No.20 (below rule 54 of the Central Civil Services (Pension) Rules, 1972) and clarification which reads thus: “54 (20) Dependent parents and widowed/divorced daughter also included in the definition of family from 1.1.1996- For the purpose of grant of family pension, the definition of family shall also include: (a) Parents who were wholly dependent on the Government servant when he/she was alive, provided the deceased employee had left behind neither a widow nor a child. (b) Son/daughter included widowed/ divorced daughter till he/she attains the age of 25 years or up to the date of his/her marriage/remarriage, whichever is earlier. 2. Income criteria: - The income criteria in respect of parents and widowed/divorced daughters will be that their earning is not more than Rs.2,550 per month. The parents will get Family Pension at 30% of basic pay of the deceased employee, subject to a minimum of Rs.1,275 per month. They also will have to produce an annual certificate to the effect that their earning is not more than Rs.2,550 per month. Further, the Family Pension to the widowed/divorced daughters will be admissible till they attain the age of 25 years or up to the date of her re-marriage, whichever is earlier. 3. It has also been decided by the Government on the basis of the recommendations of the Fifth Central Pay Commission and in partial modification of this Department’s O.M. No. 1 (26)-P& PW/90-(E), dated 18.1.1993 (Not printed) that the Family Pension 4 in respect of sons/daughters (including widowed/divorced daughter) will be admissible, subject to the condition that the payment should be discontinued/no admissible when the eligible son/daughter starts earning a sum of Rs.2,550 per month from employment in Government, the private sector, self employment, etc. It is further clarified that the Family Pension to the sons/daughters will be admissible till he/she attains 25 years of age or up to the date of his/her marriage/re-marriage, whichever is earlier. There is however, no change in the provisions about admissibility of Family Pension in respect of sons/daughters suffering from any disorder or disability of mind or who is physically crippled or disabled as mentioned in the OM, dated 18.1.1993. 4. Admissibility of Family Pension to parents and widowed/divorced daughter will be effective from 1.1.1998, subject to fulfillment of other usual conditions. The cases where Family Pension has already been granted to sons/daughters after 1.1.1998 before issue/implementation of this OM without imposition of earning condition need not be reopened. 5. These orders issue with the approval of Ministry of Finance, Department of Expenditure, ivied their U.O. No. 53/E.V/98, dated 29.1.1998.” “Clarification: - (i) It is clarified that family pension will be admissible in these cases subject to the following:- (a) the parents were wholly dependent on the Government servant when he/she was alive; (b) the Government servant has not left behind a widow/widower, eligible son or daughter or a 5 widowed/divorced daughter, who will have a prior claim to family pension in the order indicated; (c ) all other prescribed conditions are fulfilled. The family pension will, however, be payable only with effect from 1st January, 1998. It will be the responsibility of the Pension Sanctioning Authorities concerned to satisfy themselves, based on a scrutiny of the service records and other relevant documents, that the parents were, in fact, wholly dependent on the deceased Government servant when he/she was alive and that he she has not left behind any of the other specified beneficiaries who have a prior claim to the family pension. (d) The family pension wherever admissible to parents, the mother will receive the pension first and after her death the father will receive the family pension. (ii) The production of Income Certificate as stipulated in this Department’s Office Memorandum of 5th March, 1998 is also required to be insisted upon before authorizing the family pension to the eligible sons and daughters (including widowed/divorced daughters) and dependent parents. In case they are self-employed or are in receipt of income from sources other than employment, Income Certificates furnished by the concerned beneficiaries themselves may be accepted for the purpose. (iii) Eligible sons of deceased Government employees will also be required to furnish six- monthly certificates in regard to their marital status as is required of eligible daughters. (iv) Payment of family pension is to be discontinued in the event of the eligible sons/ 6 daughters (including widowed /divorced daughters) getting married/ remarried or on their earning a monthly income exceeding Rs.2,550 or on attaining 25 years of age, whichever is earlier. The crucial date for determining their continued eligibility to family pension shall be 1st January, 1998 and not 5th March, 1998 (the date of issue of this Department’s earlier Office Memorandum) as has been presumed by some of the Ministries and Departments. 2. These clarifications issue with the concurrence of the Department of Expenditure, vide their U.O. No. 1064/E.V/98, dated 29.6.1999. Family pension to parents at the ordinary rates only.- References have been received seeking clarification whether parents, wholly dependent on Government servant, having been included in the definition of ‘Family’ for the purpose of family pension are eligible for family pension at enhanced rate under Sub-rule (3) of Rule 54 of the CCS (Pension) Rules, 1972. It is clarified that parents are eligible for family pension at the ordinary rate only, i.e., 30% of the pay of the deceased employee under sub-rule (2) of Rule 54 of the CCS (Pension) Rules, 1972, subject to fulfillment of the other prescribed conditions as contained in the aforesaid Office Memorandum.” The Joint Secretary (Finance Pension) to the Government of Himachal Pradesh has issued letter dated 20.4.1995 (Annexure R-1). It reads thus: “I am directed to invite a reference to your letter No. Pen-4/S-28/70-71/4733-36 dated 12th October, 1994 on the subject cited above and to say that on the 7 basis of pronouncement dated 2.7.1992 of the Hon’ble HPAT (in OA 307/92 titled Devki Devi Vs. State of H.P.) allowing family pension to a parent, representations are being received from one of the parents of the deceased employees, who were not married, for the grant of family pension. Keeping in view the verdict of the Hon’ble Court, it has been decided by the Government that family pension in each cases may be allowed if the following conditions are satisfied:- (i) The parent was wholly dependent on the deceased employee (to be certified by revenue authority-Tehsildar). (2) No relation of the deceased employee has been given employment by the Government on compassionate grounds and; (3) None of the parents is in receipt of any other pension from the Government. Similar cases may, therefore, be entertained /decided in accordance with the above decision.” Thereafter office memorandum dated 31.8.1998 was issued by the Finance Department (Pension Cell). Para 10 of office memorandum dated 31.8.1998 reads thus: “10. (i) Family pension shall be calculated at a uniform rate of 30% of basic pay in all cases instead of slab system and shall be subject to a minimum of Rs. 1310/- PM and maximum of Rs.7800/- PM. Rule 54(2) relating to Family Pension, 1964 under Pension Rules shall stand modified to this extent and the existing table there-under will be no longer operative. (ii) For the purpose of grant of family pension the definition of ‘Family’ shall also include: 8 (a) Parents who were wholly dependant on the Government servant when he/she was alive provided the deceased employee had left behind neither a widow nor a child. The parents whose total income from all sources was Rs.2620/- PM or more at the time of death of an employee shall not be considered to be dependant. (b) Son/daughter including widowed/divorced daughter till he/she attains the age of 25 years or up to the date of his/her marriage/re-marriage or till he/she starts earning his/her livelihood, whichever is earlier. Son/daughter including widowed/divorced daughter shall be deemed to be earning his/her livelihood if his/her income is Rs. 2620/- per mensem or more. (iii) Admissibility of family pension to parents and widowed/divorced daughter will be effective from 1.8.1998.” A doubt had arisen whether the parents of Government servants, who died prior to 1.8.1998, will also be entitled to family pension or not. This issue was clarified in office memorandum dated 8.10.1999, which reads as under: “(a) the parents were wholly dependent on the Govt. servant when he/she was alive, (b) the Govt. servant has not left behind a widow/widower eligible son or daughter who will have a prior claim to family pension in the order indicated. (c ) all other prescribed conditions are fulfilled.” It was also made clear by way of this office memorandum dated 8.10.1999 that the pension will, however, be made payable with effect from 1.8.1998. Sub-para (d) of para 1 of office memorandum dated 9 8.10.1999 postulates that the family pension wherever admissible to the parents, the mother will receive the pension first and after her death the father will receive the family pension. The parents were also required to produce an annual certificate to the effect that their earning was not more than Rs. 2620/- per month. Now, we will advert to the factual matrix of the case. The petitioner’s son died on 15.2.1981. He has died before completion of one year. He was a Government employee and it can safely be presumed that he was medically examined before his appointment in the 4th Circle, HPPWD. Respondent No.2 vide Annexure P-5 has sent a communication to respondent No.3 to accord necessary sanction for the grant of family pension. Respondent No.3 sent a communication to respondent No.2 on 21.10.1998. The Superintending Engineer was called upon by way of letter dated 21.10.1998 to get it certified from the revenue authority i.e. Tehsildar that the petitioner was wholly dependent on the deceased employee i.e. Varinder Mohan-son. Respondent No.2 sought the necessary documents from the petitioner vide letter dated 20.5.1999. The petitioner sent a communication to the Superintending Engineer on 21.6.1999 stating therein that she was wholly dependent on the income of her deceased son. The petitioner made a representation to the Superintending Engineer on 6.3.2000 (Annexure P-6). The Deputy Accountant General, Himachal Pradesh, Shimla issued Pension Payment Order for the grant of family pension in favour of the petitioner on 20.6.2000 (Annexure R-5). However, subsequently, the Pension Payment Order was withdrawn on the pretext that the petitioner’s husband Sh. Shyam Krishan was working as JBT Teacher and was getting pension after his retirement. 10 Thereafter the Accounts Officer sent communication to Treasury Officer, the same reads thus: “Reference this office letter No.44-46 dated 20.6.2000. Return both halves of PPO Nos. 16595/HP without making pension payment issued in favour of Smt. Jagdamba. HIM ACCOUNTS ------------------------------------------------------------------ N.T.T. OFFICE OF THE SENIOR DEPUTY ACCOUNTANT GENERAL *A&E) HP SHIMLA-3 Pe-II-V-18/98-99-2536-37 dated 27.6.2000 Copy in confirmation is forwarded to the Treasury Officer, Kangra at Dharamshala, in reference to this office letter No.744-46 dated 20.6.2999. Please return both halves of PPO No. 16595/HP without making payment of family pension issued in favour of Smt. Jagdamba. It is necessary to do so because husband of Smt. Jagdamba is pensioner, as such she cannot be treated as dependent on her deceased son Virender Mohan. Copy also forwarded for information to Superintending Engineer, 4th Circle, HPPWD, Shimla- 3.” The petitioner approached the Himachal Pradesh Administrative Tribunal, as noticed above, for the redressal of her grievance. The same was dismissed by the Himachal Pradesh Administrative Tribunal on 4.1.2002 on the ground that the petitioner’s husband was getting pension amounting to Rs. 3257/- per month. The learned Tribunal has only reproduced the contents of original application, reply and rejoinder and abruptly come to the conclusion that since the petitioner’s husband was getting pension amounting to 11 Rs. 3257/- per month, she was not entitled to family pension. The petitioner’s case, in nutshell, before the authorities and learned Tribunal was that she was wholly dependent on the income of deceased. She was called upon to supply the necessary information whether she was dependent on her son’s income. She supplied the requisite information to the respondents on 21.6.1999. This met the requirement laid down in notification dated 20.4.1995. The same has been reproduced verbatim in the opening portion of the judgment. The first requirement as per the contents of notification dated 20.4.1995 was that the parents should be wholly dependent on the deceased employee to be certified by the revenue authority/Tehsildar. The parents were also included, as noticed above, in the definition of family vide office memorandum dated 31.8.1998. However, a rider has been put therein in sub-para (ii) (a) of para 10 of Annexure R-II that the parents whose total income from all sources is Rs. 2620/- per month or more at the time of death of an employee shall not be considered to be dependent. In the present case, it is the father, who was employed as JBT Teacher and was getting pension @ Rs. 3257/- per month. He has retired in the month of January, 1996. Only for the simple reason that the petitioner’s husband was getting pension more than Rs. 2620/-, it cannot be presumed or concluded that the petitioner was not dependent on the income of her son. The matter can be viewed from another angle. A sum of Rs. 2620/- per month is a meagre amount. It is difficult for any family to live a dignified life with the income of Rs. 2620/-. In the present case the income of the petitioner’s husband was Rs. 3257/- and if it is bifurcated into two, it would be Rs. 1628.50 paisa per month. It would 12 not be possible for the parents to make two ends meet with a meagre income of Rs. 3257/- per month. How the figure of Rs. 2620/- has been incorporated in office memorandum Annexure R-II dated 31.8.1998 is not discernible. This figure is absurd. This figure also defies the logic and common sense. The income of the husband cannot be treated as income of the wife for the payment of family pension. The mother has to be treated as separate entity. She cannot be clubbed with husband for the purpose of determining the income by using the expression “parents” since the mother has no independent income. Clubbing/treating husband’s income to be the income of the wife is violative of Articles 14 and 16 of the Constitution of India. A person, who has no independent source of income, cannot be deprived to get the benefit of family pension after the demise of his/her son. The provision as understood and applied by the respondents will cause immense hardship in the Indian socio- economic set up. What simply is to be seen in this case is: whether the parents are dependent on the income of their son or not independently by treating the income of parents separately. The only requirement is that the parent is dependent on the deceased and this fact is to be certified by the revenue authority/Tehsildar. This formality has been complied with by the petitioner in the present case. The Pension Payment Order dated 20.6.2000 has also been withdrawn by the Accounts Officer even without hearing the petitioner. The petitioner has been visited with civil and evil consequences. The Accounts Officer has directed the Treasury Officer not to release the family pension only on the grounds that the petitioner’s husband was getting pension @ Rs. 3257/- per month being retired JBT. 13 The State Government vide office memorandum dated 8.10.1999 has also given preference to mother as per clause (d) thereof. It has been clearly stipulated therein that the mother will receive the pension first and after her death the father will receive the family pension. Para (d) recognizes the socio-economic scenario prevailing in this country. We can take judicial notice of the fact that the mothers are not generally employed and most of them are house makers. They cannot be deprived of the family pension after the sad demise of her/his son or daughter. It cannot be presumed that her needs will be taken care of by her husband for all years to come. Mother has own personality and dignity. She is a separate/distinct class and cannot for all times to come be treated an alter-ego of her husband. The decision not to grant family pension to the petitioner only on the ground that the petitioner’s husband is getting pension @ Rs. 3257 is retrograde and unreasonable. The laudable objective of granting the pension to the parents after the demise of son/daughter cannot be rendered illusory by imposing unreasonable restrictions/conditions. We have to change our attitude towards the relationship between husband and wife. Our approach should be reasonable and balanced towards the relationship of husband and wife. The original purpose of including the parents in the definition of family for the purpose of family pension was to ameliorate their sufferings after the sad demise of their son/daughter. The laudable objective by including the parents in the family has been set to naught by denying the family pension to the petitioner initially by imposition of condition of dependency and thereafter on the basis of income criteria. We are of 14 the considered view that imposition of income criteria vide Annexures R-II and R-III is unreasonable and the same violates Articles 14 and 16 of the Constitution of India. The learned Tribunal has not at all considered the entire gamut while deciding the present lis. It has dismissed the petition only on the ground that since the income of the petitioner’s husband was Rs. 3257/-, the petitioner could not be held entitled to family pension. The petitioner has attained the age of 75 years. She has lost her son in 1981. The matter is under litigation since 2000. Since the petitioner has proved that she was dependent on the income of her son, she is held entitled to family pension. Accordingly, in view of the observations made hereinabove, the writ petition is allowed. Annexures P-8 dated 4.1.2002 and P-18 are quashed and set aside. The Pension Payment Order dated 20.6.2000 stands revived and the respondents are directed to release the family pension to the petitioner within a period of eight weeks from today with interest @ 6% per annum. We also recommend to the State Government either to remove the income criteria altogether or to make it reasonable due to changed circumstances. No costs. (R.B. Misra), Acting Chief Justice (Rajiv Sharma), Judge 16.12. 2009. *awasthi*