In the High Court of Judicature at Madras Dated : 25.01.2008 Coram The Honourable Mr.Justice S.MANIKUMAR W.P.No.24971 of 2006 Leelammal Dependent Mother of Ex.GS 175646H DVRMT Late K.Bhaskar ... Petitioner v Union of India, Ministry of Defence – Represented by: 1. The Director General Border Roads, HQ BR, Seema Sadak Bhavan, Ring Road, Delhi Cantt, New Delhi 110 010. 2. The Officer Commanding 1441 Bridge Construction Coy (GREF), C/o 99 APO. 3. The Principal CDA (Pensions) Drupadi Ghat, Allahabad, U.P. 211 014. ... Respondents Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus, directing the respondents to grant family pension to the petitioner and pay the arrears of pension from 03.04.2003, ie., from the date of stoppage of family pension to her daughter in law Latha on account of her remarriage till the date of payment with 12% interest. For Petitioner : Mr.CDR.S.P.Illangovan For M/s.T.Arulraj For Respondents : Mr.T.Chandrasekaran O R D E R The petitioner has sought a Writ of Mandamus, directing the respondents to grant family pension to the petitioner and pay the arrears of pension from 03.04.2003, i.e., from the date of stoppage of family pension to her daughter in law, Latha on account of her remarriage till the date of payment with 12% interest and for further orders. 2. Brief facts leading to the Writ Petition are as follows: The petitioner's son was employed in Border Road Organization, coming under the Ministry of Defence and he died in harness on 18.10.2000, leaving behind him, his mother the petitioner herein and his wife, the daughter-in-law of the petitioner. The death benefits and family pension were paid to petitioner's daughter in law in accordance with law, without intimation to the petitioner or her husband. Trusting that her daughter-in-law would take care of the parents-in-law, they did not seek for any separate relief from the respondents. But to their dismay, petitioner's daughter in law, after collecting the death benefits and pension, re-married and left them in lurch to languish in utter poverty. In these circumstances, the petitioner appealed to the respondents to grant family pension to her, as her daughter-in-law had re-married and left the matrimonial home. It is case of the petitioner that though pension papers were recommended and forwarded to PCDA (Pensions), third respondent herein, for approval, the Officer Commanding 1441 Bridge Construction Coy (GREF), C/o 99 APO, second respondent herein, by order dated 02.04.2005, intimated the petitioner that PCDA (Pensions), Allahabad has rejected her request, as she is not eligible to receive family pension as per GID (20) under Rule 54 of CCS Pension Rules, 1972. The petitioner has further submitted that the grant of family pension was denied on the basis of wrong interpretation of provision of GID (17) of CCS Pension Rules, 1972. The petitioner has further contended that by letter dated 23.06.2005, the Government of India, Ministry of Railways, has clarified that the dependents-parents of the Government servant, whose spouse has either remarried or died, leaving behind no eligible child for grant of family pension, are eligible for family pension and therefore, in the light of the above clarification, she is entitled to the Family Pension. 3. The respondents in their counter affidavit have submitted that after the demise of petitioner's son, as per the CCS Pension Rules, 1972, the family pension was sanctioned to the widow of the deceased. As per Paragraph 8 of Clause (1) of Rule 54, the family pension shall not be payable to more than one member of the family at the same time. Further, as per Clause (II) of the same Rule, if the deceased Government Servant, leaves behind him/her, a widow or widower, the family pension shall become payable to the widow or widower, failing which to the eligible child. In the case on hand, the deceased left behind him the Widow and the family pension was sanctioned to her. The respondents have further submitted that the dependant-parents were also included in the definition of family from 01.01.1996 and eligible for family pension as per G & D (2) under Rule 54, which stipulates that "Parents who were wholly dependent on the Government Servant when he/she was alive, provided the deceased employee had left behind him neither a widow nor a child". In the instant case, since the deceased left behind him his widow, the petitioner is not entitled to family pension as claimed in the Writ Petition. 4. The respondents have further submitted that as per the Service Records, Smt.E.Latha, wife of EX-GS176456H (Late) K.Bhaskar has been nominated as next kin/legal heir to receive all terminal benefits of the deceased. Therefore, as per the declaration of the employee, all the benefits were paid to the daughter-in-law, for which, there is no need to give information to the parents of the deceased Government employee. The family pension is applicable to mother only when the deceased employee had left behind him, neither a widow nor a child. The respondents have further submitted that family pension papers were examined in the light of GID Department of P.&P.W, O.M.NO.F.45/86,97-P & P.W.(A) Part-I, dated 27.10.1997, Para 7.2 reproduced in Government of India's decisions below Rule 54 of CCS (Pension) Rules, 1972 and returned by the Controller of Defence Accounts (Pensions) Allahabad, stating that the mother of the deceased is not entitled for family pension. 5. The respondents have further submitted that as regards family pension to the eligible member of family next in line means, wife in the case of male Government Servant as per Rule 54(14) of CCS (Pension) Rules and therefore, the question of applying GID (17) under Rule 54 does not arise. Definition of family as per GID (20) under Rule 54, shall include parents, who were wholly dependent on the Government Servant, when he was alive, provided the deceased employee had left behind him neither a widow nor a child. As per the service records of EX-GS176456H (Late) K.Bhaskar, there is no eligible family member in the family of the deceased, except his wife and since family pension has already been granted to Smt.E.Latha, wife of the deceased, giving intimation to other family members is not necessary and there is no procedure to obtain concurrence or no objection from the parents. The respondents have further submitted that the prevailing Rules do not entitle family pension to the mother of the deceased-employee, when he had left behind him, his wife and therefore, the contention of the petitioner that family pension was denied without any legal basis, is not acceptable. The respondents have further submitted that there is no rule to distribute the family pension among the dependents, when the deceased left behind him, his wife as his nominee. On the above grounds, the respondents prayed for dismissal of the Writ petition. 6. Heard learned counsel appearing for the parties and perused the materials available on record. 7. According to the petitioner, her son, who worked as Jeep driver under in charge of No.1441, Bridge Construction Company, (GREF), C/o.99 APO, died on 18.10.2000, on account of an accident, while he was in service. After the sudden death of her son, her daughter-in-law, viz., E.Latha, was sanctioned family pension by the Headquarters on 18.12.2000 and also the death benefits. Thereafter, She got married to one P.Sargunam of Kumpinipet Village of Arakkonam Taluk on 24.01.2003. The representation of the petitioner dated 21.02.2003 has been examined and forwarded to the Headquarters for suitable action and by letter dated 09.07.2003, she has been informed that the family pension was given to E.Latha, wife of the deceased Late K.Bhaskar, had been stopped from 03.04.2003. Finally by the impugned order, the petitioner's claim for family pension was returned stating that, under the existing provision GID (20) under Rule 54 of CCS (Pension) Rules, 1972, the parents are entitled to claim pension, if they were wholly dependent on the Government servant, when he/she was alive, provided the deceased employee had left behind him neither a widow nor a child. In the impugned order, it is further stated that in the instant case, the deceased employee left his wife at the time of his death and therefore, the petitioner is not eligible for the grant of dependent family pension. 8. The family of the deceased is entitled to family pension and the amount is determined as per Rule 54 of the CCS (Pension) Rules, 1972. The department of Ministry of Personnel, Public Grievances and Pensions (Department of Pension and Pensioners Welfare), New Delhi in their Office Memorandum No.45/51/97- P&PW(E), dated 21.07.1999, has issued clarifications relating to the grant of family pension to parents, sons and daughters and the said clarification is extracted hereunder: "Orders were issued in this Department's Office Memorandum of even number dated 5th March, 1998 prescribing the income criterion and certain other eligibility conditions for the grant of Family Pension to the dependent parents and widowed or divorced daughters of deceased Central Government employees in pursuance of the recommendations of the 5th Central Pay Commissions. This Department has been receiving a number of references seeking clarifications on issues of relevance for implementation of these orders. After consideration of these references, the following clarifications are finished for the guidance of all concerned: In terms of the OM dated 5th March, 1998, parents who were wholly dependent on the deceased Government Servant when he/she was alive will also be entitled to Family Pension with effect from 1st January 1998 subject to the fulfillment of the other conditions prescribed in this regard. Doubts have been raised whether parents of Government Servants who died prior to 1st January, 1998 will also be entitled to Family Pension. It is clarified that Family Pension will be admissible in these cases subject to the following: The parents were wholly dependent on the Government Servant when he/she was alive; The Government Servant has not left behind a widow/widower, eligible son or daughter or a widowed/divorced daughter, who will have a prior claim to Family Pension in the order indicated; 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. 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. The production on Income Certificate as stipulated in this Department's OM 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 then employment, Income Certificates furnished by the concerned beneficiaries themselves may be accepted for the purpose. Eligible sons of deceased Government employees will also be required to furnish six month certificates in regard to their marital status as is required of eligible daughters. Payment of Family Pension is to be discontinued in the event of the eligible sons/daughters (including widowed/divorced daughters) getting married/remarried or on their earning a monthly income exceeding Rs.2550/- 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 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/EV/98 dated 29.6.1999. 3. Ministry of Agriculture, etc, are requested to bring the contents of this Office Memorandum to the notice of their Controllers of Accounts, Pay & Accounts Officers and Attached and Subordinate Officers for their guidance and necessary action." 10. When the above Office Memorandum of the Department of Pension and Pensioner's Welfare, dated 21.07.1999 was circulated to all the Departments thoughout India, Railway Board has sought certain clarification regarding payment of pension to the dependent parents and after consultation with the Pension Department, the Board in its proceedings in RBE.No.104 of 2005 dated 23.06.2005, has ordered as follows: "In terms of DOP& PW's O.M.No. 45/51/97- P&PW(E) dated 21st July, 1999 circulated vide Board's letter No. No. F(E)III/1998/PN 1/4 dated 9.9.1999, admissibility of family pension to parents is subjected to the condition, inter-alia, that parents were wholly dependent on the Government servant when he/she was alive and that the Government servant has not left behind a widow/widower, eligible son or daughter or a widowed/divorced daughter, who will have a prior claim to family pension in the order ndicated. Reiterating these stipulations, further clarifications were issued vide Board's letter No. No. F(E)III/1998/PN 1/14 dated 11.9.2000. In the wake of a Court case, the matter regarding admissibility of family pension to the dependent parents of the deceased Railway servants, whose spouse has either remarried or died leaving behind no eligible child for grant of family pension, has been re-examined in Board's office in consultation with the Department of pension & Pensioners' Welfare (DOP&PW). It is accordingly clarified that parents of the deceased Railway servants/pensioners, who were wholly dependent on the Railway servants/pensioners, when he/she was alive. Shall be eligible for family pension if the spouse of the deceased Railway servant/pensioner's dies or re-marries and no children, who will have a prior claim for family pension have been left behind. The grant of family pension to such parents shall, however, be subject to fulfillment of the income criterion stipulated in Board;s Letter No. F(E) III /98/PN1/4 dated 27.4.1998. 3. Past cases may also be considered for sanction of family pension subject to fulfillment of all the conditions laid down in the scheme for grant of family pension to dependent parents. Family pension shall be payable from 1.1.1998 or from the date it becomes due, whichever is later." 11. A perusal of the above two Orders makes it clear that persons who are eligible for family pension are, 1) widow/widower, (2) eligible son or daughter, (3) widowed/divorced daughter and (4) parents who were wholly dependent on the Government Servant, when he or she was alive. By the Office Memorandum, dated 21.07.1999 issued by the Minstry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners' Welfare), the parents are entitled to claim pension, provided they were wholly dependent on the Governsment servant, when he or she was alive and the the Government servant has not left behind him/her widow/widower, eligible son or daughter or widowed/divorced daughter. 12. When the matter regarding admissibility of family pension to dependent parents of the deceased Railway servant, whose spouse either was re-married or died, leaving behind no eligible child for grant of family pension, came up for consideration and the issue was examined in consultation with the Department of Pension and Pensioners' Welfare, and the Railway Board has clarified that the parents of the deceased Railway servant/Pensioner, who were wholly dependent on the Railway servant, when he/she was alive, and can maintain claim to family pension. 13. Though petitioner's son was working in the Office of Bridge Construction Company, (GREF), C/o.99 APO, governed under the CCS (Pension) Rules, 1972 and that the Railway Board Circular may not be directly applicable to the employees in the Border Road Organization, having regard to the fact that the said clarification of the Railway Board has been issued in consultation with the Department of Pension and Pensioner's Welfare, who had issued an Office Memorandum dated 21st July 1999, which is applicable to the Central Government employees, appointed on or before 31st December 2003, including the Civil Government Servants under the Defence Service, pursuant to the recommendations of the 5th Central Pay Commission, I am of the view that the said analogy is applicable to the case of Central Government employees also. 14. If the Ministry of Personnel, Public Grievances and Pensions (Department of Pension and Pensioners' Welfare), New Delhi has already taken a decision to grant pension to the mother of a Railway servant, could there by any other yardstick or norms to be applied to a dependent mother of a Central Government Servant. If the dependancy of the member of the family of the deceased government servant is the criteria, extending the benefit to the wife, children and parents, the same principle has to be applied to the dependent parent of a government servant. Mother of the Government cannot be treated differently and discriminated just because she is from another wing of the Government departments. Once the dependent parents are made eligible to draw family pension and that the re-married widow ceased to receive the family pension and in the absence of son/daughter or widowed/divorced daughter, the petitioner, being the dependent mother is entitled to receive the family pension in the order as indicated in the Office Memorandum, dated 21.09.1999, subject to the other conditions of income limitation and proof that the mother is wholly dependent on the deceased Government Servant. For all these reasons, I am of the view that the mother of the deceased Central Government Servant is entitled to receive the family pension. The rejection of the request of the petitioner to grant family pension is not reasonable, fair and it is violative of Article 14 of the Constitution of India. Therefore, the respondents are directed to disburse the pension from the date of re-marriage of her daughter- in-law, to the petitioner expeditiously. 15. In the result, the Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed. skm/kvsg Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To 1. The Director General Border Roads, HQ BR, Seema Sadak Bhavan, Ring Road, Delhi Cantt, New Delhi 110 010. 2. The Officer Commanding 1441 Bridge Construction Coy (GREF), C/o 99 APO. 3. The Principal CDA (Pensions) Drupadi Ghat, Allahabad, U.P. 211 014. 1 cc to Mr.T.Arulraj, Advocate, SR.3294 1 cc to Mr.T.Chandrasekaran, Advocate, SR.3879 rl (co) dv/3.3. W.P.No.24971 of 2006