IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1840 of 2006 GANGA DAYAL SINGH Son of Late Brahamadeo Singh resident of Village- Bhau Bigha, Police Station-Daudnagar, District-Aurangabad Versus 1. THE STATE OF BIHAR 2. The Director Primary Education, Bihar, Patna. 3. The District Superintendent of Education, Aurangabad. 4. The Treasury Officer, Aurangabad 5. The Accountant General, Bihar, Patna. ----------- For the petitioner :- Mr. Mukesh Kumar Jha, Advocate For the Respondent :- Mr. Manindra Kishore Singh, G.P.12 For the Accountant General:- Mr. S.M. Ehtesham, Advocate ********* 3 20.04.2010 The core issue which arises for consideration in the writ petition is whether a widower would become disentitled to family pension, the moment he gets remarried. With the consent of the parties, the matter has been taken up for disposal at the stage of admission. The petitioner is aggrieved by the order bearing memo No. 1074 dated 22.7.2004 as contained in Annexure-1 to the writ petition issued under the signature of the respondent No.3, the District Superintendent of Education, Aurangabad whereby the family pension being drawn by the petitioner has been stopped and recovery thereof has been directed. The facts of the case leading to the 2 issuance of the impugned order are rather brief. The wife of the petitioner was working as an Assistant Teacher at Middle School, Daud Nagar and she died in harness on 11.2.1996. The petitioner submitted papers for payment of the family pension and other post retiral dues and which was accepted and consequent whereto the petitioner received the entire post retiral benefits and also started drawing family pension. The petitioner got remarried on 6.3.1996. The said development led to the issuance of the impugned order placed at Annexure-1 of the writ petition, directing for recovery of the provisional family pension being drawn by the petitioner with effect from 11.2.1996 until January,1998. It was estimated that the petitioner had drawn an amount of Rs. 16,148/- by way of provisional pension for the said period. Thus taking into consideration the remarriage of the petitioner on 6.3.1996, it was held that the petitioner had drawn an excess amount by way of provisional pension to the tune to Rs. 14,511/- and which should be deposited by him failing which necessary legal action would be taken. It is in these circumstances that the present writ petition came to be filed. 3 Learned counsel for the petitioner relying upon circular of the Finance Department dated 3.9.1996 issued in the light of a Supreme Court judgment placed at Annexure-3 to the writ petition submits that the department themselves have allowed family pension to such of the spouses who have got married after the date of retirement of the pensioner. He submits that the issue was reconsidered by the Department of Pension in the Ministry of Personnel, Public Grievances and Pension, Government of India in the light of a Supreme Court judgment and who vide memo dated 30.10.1990 decided to grant family pension to such of the husband/wife who got married after superannuation of their respective spouses. In the light of the decision taken by the Government of India, the State Government of Bihar also vide Circular dated 3.9.1996 deleted the note (2) placed under paragraph 7 (ii) of the Circular dated 3.10.1964 and decided to grant family pension to even such of the husband/wives who have got married subsequent to the retirement of their respective spouses. Learned counsel thus submits that in view of the said stipulation the impugned order placed at Annexure-1 is not 4 sustainable and is fit to be quashed. He submits that where the department themselves have allowed family pension to persons becoming spouses after retirement hence on the same analogy the benefit being drawn by the petitioner as a widower of his first wife cannot be curtailed merely by reason of his second marriage, as it would be in the teeth of the very scheme of family pension and the object behind the same. Mr. Manindra Kishore Singh learned Government Pleader No.12 for the State defending the action of the respondent authorities supports the impugned order and submits that the reliance placed by the petitioner on the Circular dated 3.9.1996 (Annexure-3) is completely misplaced. He submits that nodoubt the benefit of family pension has been accorded to such of the husbands/wives who have got married after retirement of their respective spouses but that amendment took place in Note 2 of paragraph 7(ii) of the Finance Department Circular dated 3.9.1964 . He further submits that the case of the present petitioner is covered under paragraph 7 (iii) of the said Circular and which provides as under :- “7(iii) the pension will be 5 admissible:- (a) In the case of widow/widower up to the date of death or remarriage whichever is earlier. (b) In case of minor son until he attains the age of 18 years. (c) In the case of unmarried daughter until she attains the age of 21 years or married whichever is earlier.” He thus submits that as a widower under the Family Pension Scheme, is only entitled to family pension until his remarriage, hence the petitioner is not entitled to draw any family pension since after his remarriage on 6.3.1996. Learned counsel thus submits that there is absolutely no infirmity in the action taken by the respondent authorities in issuing the impugned order contained in Annexure-1 and the same requires no interference by this Court in exercise of power under Article 226 of the Constitution of India. I have heard learned counsel for the respective parties and have perused the materials on record. The issue definitely is not free from difficulties. Nodoubt the provision noticed above, entitles a widower to family pension only until the date of his remarriage but the 6 provision is to be considered against the backdrop of the object underlying the scheme of the family pension. Testing the case of the petitioner in the light of the provision aforesaid definitely poses difficulties for the petitioner. However, considering the aforesaid provision in the light of the amendments incorporated in paragraph 7(ii) of the said Circular, the same appears to be discriminatory for the reason that whereas the authority themselves have granted sanction of family pension even in case of marriages taking place after retirement meaning thereby that a pensioner is entitled to marry after retirement but a family pensioner is being restrained from doing so. Reference in this regard is made to a Supreme Court judgment reported in 1989 (4) SCC 397 and to appreciate the issue involved in the present case, I am tempted to quote paragraph 9 of the said judgment : “9. Pension is payable, as pointed out in several judgments of this Court, on the consideration of past service rendered by the government servant. Payability of the family 7 pension is basically on the selfsame consideration. Since pension is linked with past service and the avowed purpose of the Pension Rules is to provide sustenance in old age, distinction between marriage during service and marriage after retirement appears to be indeed arbitrary. There are instances where a government servant contracts his first marriage after retirement. In these two cases before us, retirement had been at an early age. In the Subedar‟s case, he had retired after putting in 18 years of service and the railway employee had retired prematurely at the age of 44. Premature or early retirement has indeed no relevance for deciding the point at issue. It is not the case of the Union of India and, perhaps there would have been no force in such contention if raised, that family pension is admissible on account of the fact that the spouse contributed to the efficiency of the government servant during his service career. In most cases, marriage after retirement is done to provide protection, secure companionship and to secure support in old age. 8 The considerations upon which pension proper is admissible or the benefit of the family pension has been extended do not justify the distinction envisaged in the definition of „family‟ by keeping the post-retiral spouse out of it.” Indeed pension or family pension is granted to a pensioner or his spouse or dependents as the case may be, for the services rendered by the employee concerned and is neither a bounty nor a grace. The employee has earned the same for himself and for his spouse/dependents as the case may be. In the circumstances there appears no rationality in curtailing the benefit of family pension merely by reason of remarriage and perhaps more so for the reason that having allowed the pensioner to get married there appears no rational explanation in denying the said benefit to a family pensioner on the pretext of remarriage. As noticed in the judgment of the Supreme Court (Supra), the payment of pension is directly linked to provide assistance in old age and curtailing the said facility on the anvil of remarriage not only 9 appears to be irrational but also unreasonable restriction and a curtailment of a legal right. There are situations like the present case in which the husband/wife becomes a widow/widower at an early age and starts drawing family pension for the service rendered by their respective spouses. Losing a spouse in an early age is definitely not a happy situation. Apart from becoming a widow/widower at an early age there may be further constraints /compelling circumstances including companionship justifying a remarriage. In such situation it would only be unjust and unreasonable to forbid any pensioner from entering into a remarriage. Taking into consideration the accompanying circumstances, the object and the relevant provisions of the Family Pension Scheme and the judicial pronouncement of the Supreme Court noticed above as also the consequential amendments introduced by the Union of India and the State Government of Bihar, perhaps in the light of the judgment (supra), I am of the opinion that the order as contained in Annexure-1 cannot be sustained. The petitioner despite his remarriage would still continue to be a husband to his deceased wife. 10 The relevant rules found in Rule 43(b) and Rule 139 of the Bihar Pension Rules only requires the pensioner to maintain his conduct failing which appropriate action could be taken under the said Rules. Maintenance of conduct is a prerequisite to draw pension. Remarriage in no circumstances can come within a purview of a misconduct nor, remarriage upon the death of the first wife can entail forfeiture of family pension. In the circumstances I have no hesitation to hold that the restriction mentioned in paragraph 7 (iii)(a) of the Family Pension Scheme 1964 is an unreasonable restriction without any plausible explanation and is also not based on any sound reasoning. In the circumstances, the writ petition is allowed, the order as contained in Annexure-1 is set aside and the respondents are directed to release the family pension of the petitioner together with its arrears within a period of three months from the date of receipt/production of a copy of this order. The Patna High Court/ dated 20th April,2010/ Bibhash/A.F.R. (Jyoti Saran, J. )