IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP-T No. 9650/2008 Decided on:8.3.2010 _____________________________________________ Smt. Sharda Garg. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. D.P. Gupta, Advocate vice Mr. K.D. Shreedhar, Advocate. For the Respondents: Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Additional Advocate General for respondents No.1 and 2. Mr. Lokinder Thakur, Advocate for respondent No.3. _____________________________________________________ Rajiv Sharma, Judge (oral). Material facts necessary for the adjudication of this petition are that petitioner is mother of deceased Dr. Ajay Aggarwal. He was working as Medical Officer in the office of Block Medical Officer, Civil Hospital, Jogindernagar, District Mandi. He met with an accident on 10.1.2001 and died on 12.1.2001. The family pension was allowed in favour of widow, namely, Dr. Swati Aggarwal. She is also Medical Officer. Widow of the deceased 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Government servant remarried on 30.11.2002. She sent a communication to the Chief Medical Officer, Kangra at Dharamshala that she has remarried and she was not drawing family pension. Petitioner made a representation on 6.1.2003 seeking family pension after the re-marriage of widow. Her claim was rejected by the office of respondent No.3 on 2.6.2003. She made another representation to the Accountant General (AG) on 3.7.2003. She mentioned about the memorandum dated 21.7.1999 in her representation. She made another representation to the Senior Deputy Accountant General (A&E) on 11.7.2003. Petitioner had annexed the copies of affidavits giving therein the details of her income as well as the income of her husband, Sh. Yogeshwar Aggarwal. Mr. D.P. Gupta has vehemently argued that her client is entitled to get family pension as per Government of India Decision (25) appended to rule 54 of the Central Civil Services (Pension) Rules, 1972. He further contended that rejection of the petitioner’s case on 2.6.2003 is contrary to rules and the respondents have misinterpreted the rules. He lastly contended that her client was dependent on the income of her son and after remarriage of the widow of her son, she is entitled to get family pension. Mr. R.K. Sharma, learned Senior Additional Advocate General and Mr. Lokinder Thakur have strenuously argued that petitioner is not entitled to family pension even after the re-marriage of widow. I have heard the learned counsel for the parties and have perused the pleadings carefully. 3 It will be apt at this stage to take stock of the rule position. The decision to grant family pension to parents was taken vide notification dated 27.10.1997. It reads thus: “Dependent parents also included in the definition of family from 1.1.1998.- 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 including 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.” Respondent-State has also issued office memorandum dated 31.8.1998. Item No. 10 (ii) of memorandum dated 31.8.1998 reads thus: (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 upto the date of him/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.” 4 It is evident from two decisions quoted hereinabove that parents, who are wholly dependent on the Government servant, are entitled to family pension with effect from 1.1.1998. Vide office order dated 21.7.1999, it was also clarified that in case of parents of Government servant, who died prior to 1.1.1998, the family pension is to be paid subject to following: (a) 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 widowed/divorced daughter, who will have a prior claim to Family Pension in the order indicated. Case of petitioner has been primarily rejected by the respondents on the pretext that since the deceased has left behind widow, parents could not be granted family pension. Respondents have misconstrued the provisions of Government of India decision (25) appended to below rule 54 of the Central Civil Services (Pension) Rules, 1972 and office memorandum dated 31.8.1998. Petitioner’s son has died on 12.1.2001. Widow has re-married on 30.11.2002 and she had already made representation to the Chief Medical Officer vide Annexure A-1 that she was not withdrawing the family pension after her re-marriage. Accordingly, petitioner being the mother of deceased Dr. Ajay Aggarwal became eligible for family pension. She has already submitted affidavits (Annexures A-8/1 and A-8/2) to the effect that she and her husband were dependent on the income of their son Dr. Ajay Aggarwal. They had also informed the authorities by way of these affidavits that Dr. Ajay 5 Aggarwal had no living children. They have given their income @ Rs. 1,000/- per month each. It is settled law by now that welfare legislation and measures have to be interpreted liberally. In the event of widow remarrying, family pension is required to be paid to the parents, who are dependent on the income of their son. In the instant case, it is true that the deceased has left behind a widow, however, she has remarried and informed the Chief Medical Officer that she was not drawing any pension. Deceased has not left behind any child. The underline principle to grant family pension to parents, who are solely dependent on the income of the Government servant, is to mitigate their hardship. The only rider, as noticed above, is that in case an employee has left behind a widow or a child, family pension cannot be paid to the parents. This clause has been incorporated only to safeguard the interest of a widow or a child. The Hardship faced by widow will get ameliorated immediately after her re-marriage and thereafter parents will become entitled to get family pension. A balance has to be struck by protecting the rights of a widow by ensuring that if she does not remarry, she will get family pension and if she marries, the family pension is to be paid to the parents. Similarly, rights of children are to be protected by ensuring that they get family pension till the age prescribed in the rules, however, if there are no children left behind by a Government servant, the family pension is to be paid to the parents. The other criteria is the income limit, i.e. Rs. 2620/- per month. Income of the petitioner and her husband, as per affidavits furnished to the authorities, is Rs. 2,000/- per month. The Central Government has further liberalized the 6 decision vide office memorandum dated 21.7.1999 whereby the parents of the Government servant, who died prior to 1.1.1998 have also been held entitled to family pension subject to conditions enumerated therein. Respondent No.3 has rejected the case on 2.6.2003 and thereafter sought clarification from the Principal Secretary (Finance and Pension) on 11.11.2003. Respondent No.3 was not sure, as per contents of Annexure R-2, whether family pension is to be paid to the parents in the event of remarriage of widow or not. In a similar situation, their Lordships of the Hon’ble Supreme Court have held in M. Jameela Beevi versus S. Balagopala Pillai, (1997) 11 SCC 462 that where the widow has remarried and there were no relatives from clauses (c) to (f) of R. 90 (6-A) (6) of Kerala Service Rules, the mother solely dependent on the deceased employee under clause (g) was held eligible for pension. Their Lordships have held as under: “2.Under Rule 90(6-A) of the Kerala Service Rules, there is a provision for Contributory Family Pension being admissible to the parents, if they were solely dependent on the deceased for maintenance and they have no other source of income. This is subject to the condition that the employee had no wife at the time of death. In the present case, the widow of the employee is alive but has remarried. She is not, therefore, eligible for pension under sub-rule (7. Under sub-rule (6 pension is payable to relatives at (a) to (0 in that order, subject to the Rules. In the absence of relatives under clauses (a) to (c), the pension is payable to the father (f) and mother who is at (g). 7 Wife is the first person entitled and stands at (a). Sub-rule (9, however, provides that if she remarries, pension will be paid to the minor children mentioned at (c) and (d). In the present case, there being no relatives from (c) to (f), the mother who is at (g) is eligible for pension. 3.The wife has also entered into a compromise with the appellant who is the mother of the employee under which the wife has agreed, inter alia, that the Contributory Family Pension should be paid over to the mother (the appellant herein). The mother was solely dependent on the deceased employee. In view of this consent order between the widow of the deceased employee and his mother also, we fail to see why, as per the agreed arrangement between the affected parties, the Contributory Family Pension cannot be paid to the appellant.” In the present case, since the widow has remarried and the deceased has not left any child, the petitioner is held entitled to family pension. Accordingly, in view of the observations made hereinabove, the petition is allowed. Annexure A-4 dated 2.6.2003 is quashed and set aside. Respondents are directed to grant family pension to the petitioner from the due date within a period of eight weeks from today. Arrears of family pension shall carry interest @ 9% per annum. No costs. (Rajiv Sharma), Judge 8.3.2010 *awasthi*