Court No. - 30
Case :- WRIT - A No. - 21923 of 2012 Petitioner :- Asha Devi Respondent :- State Of U.P. And Others Counsel for Petitioner :- Dharmendra Srivastava Counsel for Respondent :- C.S.C.
Hon'ble Vivek Kumar Birla,J.
Heard Sri Dharmendra Srivastava, learned counsel for the petitioner and Sri Rakesh Kumar Mishra, learned Standing Counsel appearing for the State - respondents.
Initially vide order dated 4.5.2012 notices were issued to respondents no. 6 and 7. Office issued notice on 14.5.2012. The office report dated 8.11.2012 indicates that the same was returned unserved on the ground that they have left for Mumbai and therefore, the same was returned. Again by order dated 3.10.2016 notices were issued to respondents no. 6 and 7. The office report dated 23.3.2018 indicates that neither acknowledgement nor unserved notices have been received back in office. Under such circumstances, service on respondents no. 6 and 7 is deemed to be sufficient.
Present writ petition has been filed seeking quashing of the order dated 14.2.2012 and 11.4.2012 passed by respondent no. 3 and reconsider the matter afresh in the light of compromise dated 17.1.2007. A further prayer in the nature of mandamus directing the respondents to release pension in favour of the petitioner for which she is entitled on the basis of compromise dated 17.1.2007 has also been made.
In short dispute relates to entitlement regarding payment of family pension after death of Shyam Raj Chauhan who was working as Consolidation Lekhpal and died on 25.12.2000. It is not in dispute that late Shyam Raj had two wives namely Smt. Dhanesari Devi and Smt. Asha Devi, the petitioner herein. The dispute was regarding assets of late Shyam Raj Chauhan and as such Succession Case No. 225 of 2001, Om Prakash and others and Succession Case No. 227 of 2001, Smt. Asha Devi and others were filed wherein compromise dated 17.1.2007 was filed. Paragraph 3 of the said compromise clearly provided that Ram Prakash son of late Shyam Raj and Smt. Dhanesari Devi would be entitled to get compassionate appointment in place of late Shyam Raj and the present petitioner Smt. Asha Devi shall be entitled for pension throughout her life. Accordingly, the succession cases were decided by the Civil Judge, Senior Division, Azamgarh by order dated 17.1.2007 in the light of the aforesaid compromise. The compromise was admittedly acted upon and Ram Prakash son of Dhanesari Devi was granted compassionate appointment. Accordingly, in view of the compromise, the order dated 14.2.2012 was passed by the Consolidation Commissioner, U.P. in respect of post death benefit of late Shyam Raj to Smt. Asha Devi, the petitioner herein. This order was challenged by Dhanesari Devi by filing Writ A No. 16448 of 2011, Dhanesari Devi Vs. State of U.P. and others, which was dismissed by judgment and order dated 18.3.2011 clearly observing therein that petitioner's contention that she is entitled for share in family pension being statutory cannot be accepted in view of settlement, wherein petitioner was party and has accepted the benefits of compromise. The aforesaid order dated 18.3.2011 is quoted as under:
"Heard learned counsel for the petitioner and Sri Dharmendra Srivastava, Advocate for respondents.
Petitioner has approached this questioning the validity of the order dated 14.02.2011 passed by Consolidation Commissioner , U.P. Lucknow in respect of post death benefit of late Shyam Raj Chauhan to Asha Devi, respondent no. 4.
On the matter being taken up today precise question has been put, that once parties to the dispute have settled the matter amicably by means of compromise dated 17.01.2007 and same has been acted upon, can the term and condition of the compromise be ignored.
In the present case Consolidation Commissioner, U.P. Lucknow has proceeded to place reliance on the settlement dated 17.01.2007 entered inter se parties in respect of benefit on account of death of late Shyam Raj Chauhan. As far as petitioner is concerned her claim has been clearly mentioned therein and she has also got the same nothing beyond the same can be now permitted to be claimed by her. Petitioner's contention is that she is entitled for share in family pension being statutory cannot be accepted in view of settlement, wherein petitioner was party and has accepted the benefits of compromise.
Consequently, present writ petition is dismissed."
Thereafter, the pension was awarded to Smt. Dhanesari Devi, therefore, the present petitioner Asha Devi filed Writ A No. 11243 of 2012, Asha Devi Vs. State of U.P. and others on the ground that ignoring all these background of the case the order of pension has been passed and the petitioner has filed an application for recall of the order as the same is absolutely illegal. Since the application of the petitioner for recall of the order was pending therefore, the writ petition was disposed of with a direction to the Additional Director, Treasury and Pension, Region Varanasi, District Varanasi to decide the application of the petitioner. The aforesaid order dated 29.2.2012 is also quoted as under:
"Petitioner has rushed to this Court contending therein that pension has wrongly been accorded to Smt. Dhaneshari Devi.
Petitioner has contended that in the past inter se parties, the matter had been settled by compromise dated 17th January, 2007 and said compromise in question has been acted upon. Petitioner has contended that thereafter on 14th February 2011 an order was passed by Consolidation Commissioner, U.P. Lucknow in respect of post death benefit of late Shyam Raj Chauhan in favour of Asha Devi, respondent no. 4 in writ petition 16448 of 2011 and petitioner of present writ petition Smt. Dhaneshari Devi filed writ petition no. 16448 of 2011, before this Court and this Court passed following order :
"Heard learned counsel for the petitioner and Sri Dharmendra Srivastava, Advocate for respondents.
Petitioner has approached this questioning the validity of the order dated 14.02.2011 passed by Consolidation Commissioner , U.P. Lucknow in respect of post death benefit of late Shyam Raj Chauhan to Asha Devi, respondent no. 4.
On the matter being taken up today precise question has been put, that once parties to the dispute have settled the matter amicably by means of compromise dated 17.01.2007 and same has been acted upon, can the term and condition of the compromise be ignored.
In the present case Consolidation Commissioner, U.P. Lucknow has proceeded to place reliance on the settlement dated 17.01.2007 entered inter se parties in respect of benefit on account of death of late Shyam Raj Chauhan. As far as petitioner is concerned her claim has been clearly mentioned therein and she has also got the same nothing beyond the same can be now permitted to be claimed by her. Petitioner's contention is that she is entitled for share in family pension being statutory cannot be accepted in view of settlement, wherein petitioner was party and has accepted the benefits of compromise.
Consequently, present writ petition is dismissed."
Petitioner has informed that against the same Special Appeal no. 687 of 2005 has been filed and this Court passed following order:
"Case called out in the revised list. No one appeared to press this appeal. List in due course."
Petitioner has contended thereafter ignoring all these background of the case order of pension has been passed and immediately thereafter petitioner has represented the matter before Additional Director Treasury and Pension, Regional Varanasi, District Varanasi to recall the aforementioned order as same in is ignorance of the earlier background of litigation.
Consequently, in the facts of the case, as application for recall has already been moved by the petitioner with the contention that entire proceedings undertaken against her are ex parte to her ignoring the earlier order passed by this Court, as such Additional Director Treasury and Pension, Regional Varanasi, District Varanasi is directed to take decision on the application which has been so moved by the petitioner in accordance with law preferably within next two months from the date of production of certified copy of the order passed by this Court. Needless to say before proceeding to take decision, the view point of Dhaneshari Devi and Om Prakash be also taken into account and reasoned decision shall be taken. The order impugned in the present case shall abide by fresh decision which would be taken by the authority concerned.
Writ petition is accordingly disposed of."
Pursuant to the aforesaid order, the application of the petitioner was decided and has been rejected on the ground that in view of the guidelines of the Director Pension in case of more than one wife, the senior most wife is to be granted pension.
Submission of learned counsel for the petitioner is that the order is absolutely illegal and once the compromise had taken place, the parties are bound by the same and as such the guidelines and the Government Order dated 24.8.1966 that has been applied in the present case could not be applicable.
Per-contra, learned Standing Counsel appearing for the State - respondents has submitted that the impugned order does not warrant any interference as the same has been passed in the light of Government Order dated 24.8.1966 and 28.7.1989 and accordingly the Pension Payment Order (PPO) has been issued in favour of Smt. Dhanesari Devi.
I have heard the rival submissions and have perused the record.
In the present case the compromise dated 17.1.2007 in the succession proceedings is not in dispute. It is also not in dispute that the parties have acted upon the same and benefit of the same had already been extended to Ram Prakash son of late Shyam Raj and Dhanesari Devi and he has also been granted compassionate appointment and after having enjoyed the benefit of compromise it cannot be said that the petitioner is not entitled for pension. It would also be relevant to point out that the claim of respondent no. 6 Dhanesari Devi for share in family pension had already been rejected by this Court while dismissing the writ petition being Writ A No. 16448 of 2011 vide judgment and order dated 18.3.2011. At the cost of repetition, relevant paragraph whereof is quoted as under:
"In the present case Consolidation Commissioner, U.P. Lucknow has proceeded to place reliance on the settlement dated 17.01.2007 entered inter se parties in respect of benefit on account of death of late Shyam Raj Chauhan. As far as petitioner is concerned her claim has been clearly mentioned therein and she has also got the same nothing beyond the same can be now permitted to be claimed by her. Petitioner's contention is that she is entitled for share in family pension being statutory cannot be accepted in view of settlement, wherein petitioner was party and has accepted the benefits of compromise.
Consequently, present writ petition is dismissed."
When PPO order was issued in favour of Dhanesari Devi, the petitioner has approached this Court and noticing the aforesaid facts the matter was directed to be reconsidered by the concerned authority. Now again ignoring the observation of this Court that in view of the settlement the stand taken that the Dhanesari Devi is entitled for share of family pension being statutory has been been rejected as she was party to the compromise and has also accepted the benefits of the compromise.
In view of the abovenoted facts, the impugned order which has been passed completely ignoring the fact that the respondents no. 6 and 7 herein have accepted the compromise and have also enjoyed benefit thereof and would override the provision moreso when compromise was entered into in succession proceedings and is not in dispute.
Accordingly, the impugned orders dated 14.2.2012 and 11.4.2012 passed by respondent no. 3, the Additional Director Treasury and Pension, Regional Varanasi, district Varanasi are not sustainable in the eye of law and are hereby quashed. The petitioner is entitled for family pension as per compromise and as held by this Court in Writ A No. 16448 of 2011, Dhanesari Devi Vs. State of U.P. and others vide judgment and order dated 18.3.2011. The matter is remanded back to the said respondent no. 3 for passing fresh orders in the light of the observations as made above in favour of the petitioner. Such order shall be passed, preferably within a period of two months from the date of production of a certified copy of this order.
It is further provided that on receipt of certified copy of this order, the respondent no. 3 shall immediately pass orders stopping payment of family pension in favour of respondent no. 6, Dhanesari Devi.
Since Dhanesari Devi has illegally received the family pension inspite of the observations of this Court made in Writ A No. 16448 of 2011 filed by her which was dismissed and her son has also taken benefit of the compromise and got compassionate appointment, therefore, it is further provided that the amount paid to Smt. Dhanesari Devi shall be recovered from his salary @ 25% of his net salary every month by the concerned respondent authority and be paid to the present petitioner till the entire amount illegally paid to Smt. Dhanesari Devi towards the family pension etc. is recovered.
This writ petition stands allowed with the observations as indicated above. No order as to costs.
Order Date :- 27.3.2018 p.s.