IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11160 of 2005 JUHI DEVI Versus THE UNION OF INDIA & ORS ----------- 3. 26.4.2010. Mr. A.K. Sharma, learned counsel for the petitioner and Mr. B.N.Gupta, learned Central Government Counsel representing the Union of India and its functionaries are present. The petitioner is the widow of Late Hriday Kumar (deceased constable) No.881615597 who expired on 13.10.1990 while posted under the 18th Battalion, Border Security Force at Fazilka, District Firozpur, Punjab. The widow subsequently remarried the younger brother of the deceased constable, namely, Binay Kumar Sharma on 16.7.1994 and whereafter the family pension being drawn by the petitioner was stopped in the light of the provisions contained in the Family Pension Scheme, 1964 provided under rule 54 of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as the `rule’), giving rise to the present proceedings. Rule 54 (6) of the Central Civil Services (Pension) Rules, 1972 provides inter alia that the family pension would be admissible to the widow until her death or remarriage whichever is 2 earlier. The relevant provisions extends family pension to the claimants in the following manner: (i) In the case of widow or widower up to the date of death or remarriage whichever is earlier; (ii) In case of son until he attains the age of twenty five years; (iii)In case of unmarried daughters until she attains the age of 25 years or until she gets married whichever is earlier. Thus, following the provision aforesaid, the family pension of the petitioner was stopped consequent upon gathering knowledge of her remarriage with the younger brother of the deceased employee. Learned counsel for the petitioner, with reference to the provisions of the Central Civil Services (Extraordinary Pension) Rules, submits that an exception to the aforesaid Rule can be found in Rule 12A which reads as under: “12A: Re-Marriage by widow: Notwithstanding anything contained in Clause (i) of Sub Rule (3) of Rule 12, a widow or an employee who remarries her deceased husband’s brother and continues to live a communal life with 3 or contributes to the support of the other dependants of the deceased, shall not be disqualified for grant of extra ordinary pension, otherwise admissible to her under these Rules”. It would be relevant to mention that Rule 12 (2)(i) referred to in the aforesaid provision contains identical provisions as found in rule 54(6) of the Rules, regarding the restriction to draw family pension upon remarriage. Learned counsel thus relying upon the provision of Rule 12A of the Extra Ordinary Pension Rules, submits that an exception to the general rule of stoppage of the family pension consequent upon remarriage has been carved out under the Extra Ordinary Pension Rules and the family pension of widows entering into remarriage, has been allowed subject to the stipulation that she gets married to the younger brother of the deceased husband and continues a communal life with him or contributes to the support of the dependants of the deceased. Learned counsel thus submits that there is no dispute on the issue of marriage of the petitioner with the brother of her husband and the stoppage of pension in the back-drop of the statutory provisions is without sanction of law. 4 Mr. Gupta, learned counsel representing the Union of India, with reference to the statements made in paragraph-6 of the counter affidavit, submits that under the Family Pension Rules, l964, the petitioner was not entitled to pension since after her remarriage. He submits that even if the provisions of Extra ordinary Pension Rules is extended to the case of the petitioner, the disease which led to the death of her husband, namely, Carcinoma Liver’ is not one of the diseases which is normally affected by service as set out in Clause (i) of Schedule 1-A read with rule 3(4) under Appendix-3 of the Central Civil Services (Extra Ordinary Pension Rules). He thus submits that the petitioner was not entitled for family pension after her remarriage and the same was rightfully stopped by the authorities. The distinction between a widow drawing pension under the CCS (Pension) Rules and one drawing pension under the Extra Ordinary Pension has been sought to be distinguished in para-20 of the counter affidavit that as the petitioner was drawing pension under the Family Pension rules hence she was not entitled for pension under the Extra Ordinary Pension Rules. 5 Having considered the rival contentions advanced on behalf of the parties and upon consideration of the material available on the records of the proceedings in the backdrop of the statutory provisions governing family pension and extra ordinary family pension, I am of the opinion that the conclusion arrived at by the authorities in stopping the family pension of the petitioner was completely misplaced, to say the least. Undoubtedly, the Family Pension Scheme, 1964 does not permit grant of family pension upon remarriage by the pensioner. But an exception to the said Rule has been framed under the provision of the Central Civil Service (Extra Ordinary Pension) Rules and more particularly, in Rule 12A thereof. The said provision starts with a non obstante clause and thus has an overriding effect. The Rule is specific on the issue. A conscious decision has been taken by the Central Government to accord family pension to widows getting remarried subject to the condition that the marriage would take place with the brother of the deceased husband. Even the respondents do not appear adverse to this issue and which fact is manifest from Annexure-2A of the writ petition 6 which is a letter written by the Lieutenant, Border Security Force to the brother of the present petitioner accepting the claim of the petitioner on principle. In no uncertain terms the Lieutenant accepted all the provisions of Extra Ordinary Pension Rules applicable to the case of the petitioner and that she was entitled for payment of extra ordinary family pension as envisaged under the said Rule. The arguments advanced by learned counsel appearing on behalf of the petitioner is on sound legal premise that even if the family pension of the petitioner could be stopped by the respondent authorities on grounds of remarriage, she yet was entitled to family pension under the Extra Ordinary Pension Rules and which could not be denied to her on pretext of the disease suffered by her late husband. The provision of Extra Ordinary Family Pension Rules, manifestly is applicable in two situations, namely (i) cases of disablement, and (ii) in case of death. Perhaps, the issue raised by the respondents would have been an issue in case the claim of the family pension was by 7 reason of disablement but in view of the provisions contained in Rule 12A, the same cannot be a ground for disqualifying the petitioner from drawing her family pension, under the Central Civil Services (Extra Ordinary) Pension Rules. The writ petition is allowed. The petitioner would be entitled to the payment of family pension under the provisions of Central Civil Services (Extra Ordinary Pension) Rules with effect from the date of her remarriage with the younger brother of her husband on l6.7.1994 until her eligibility to draw the same and which should be paid to her within a period of three months from the date of receipt/production of a copy of this order. ahk (Jyoti Saran, J.)