IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9042 of 2005 ALOK KUMAR & ORS Versus THE STATE OF BIHAR & ORS ----------- 03/ 24-02-2010 Learned counsel for the petitioner is permitted to add Awadhesh Tiwary, S/o Anant Tiwary, resident of village- Parsurampur, P.S.-Pipra, East Champaran as petitioner no. 5 to the present proceedings. The writ petition has been filed by the minor children of Late Upendra Tiwary who died in harness on 05.11.2000 while holding the post of Constable. The writ petition has been filed for payment of the family pension to the petitioner no. 1 to 4 who claim to be the minor children of the deceased employee. Learned counsel for the petitioner submits that the second wife of the deceased employee, namely, Smt. Anita Devi is not living with them and is living separately and thus is not maintaining the children of the deceased employee. In such circumstances, a claim has been made for payment of the proportional amount of the family pension in terms of the Family Pension Scheme of 1964 as provided under the Finance Department’s Resolution No. PC-1-916/87-1853 F. dated 19.4.90. Paragraph-7 of the said resolution defines a family to include the widow, the widower, the minor sons and the unmarried daughters. Note (ii) to paragraph 7(3) clarifies that “where an officer is survived by a widow but has left behind an eligible minor child from another - 2 - wife, the eligible minor child will be paid the share of pension which the mother would have received, if she had been alive at the time of the death of the officer.” The said stipulations makes it clear that minor children of the deceased employee born from the first wife do also have a claim in the family pension and which certainly cannot be less than 50 per cent of the total amount of the family pension. Having regard to the stipulations of the Family Pension Scheme as referred to above, this writ petition is disposed of with a liberty to the newly added petitioner no. 5, Awadhesh Tiwary who is the grand father and lawful guardian of the petitioner nos. 1 to 4 being the minor sons and daughters of the deceased employee, to file a representation before the respondent no. 2, the Superintendent of Police, Muzaffarpur raising the claim for payment of the family pension to the petitioner nos. 1 to 4 in the light of the stipulations of the Family Pension Scheme and which shall be decided by the respondent no. 2 after due notice and opportunity of hearing to the surviving widow of the deceased employee, namely, Anita Devi who is admittedly drawing the full family pension. The decision regarding proportion of family pension to the minor children of the deceased employee should be taken expeditiously and preferably within a period of three months from the date the representation is filed. The writ petition is disposed of. S.Sb/- (Jyoti Saran, J.) - 3 -