Hon'ble Salil Kumar Rai,J.
(Delivered by Hon'ble Salil Kumar Rai,J) Heard Shri Shivam Yadav, counsel for the petitioner and Ms.Rashmi Tripathi for respondent no.6 as well as the counsel for respondent nos.1 to 4.
The petitioner is the daughter of one Shri (Late) V.P.Kapoor. The petitioner alleges that she is the divorced daughter of Shri (Late) V.P.Kapoor born from his first wife who had died before Shri V.P.Kapoor. Respondent no.6 is the second wife of Shri (Late) V.P. Kapoor. Shri V.P. Kapoor served in the defence (M.E.S) services and retired on 31.7.1995. Shri V.P. Kapoor died on 7.9.2013. During his life time, Shri V.P. Kapoor had instituted Suit No.868 of 1984 seeking divorce from respondent no.6 but the said case remained pending till the death of Shri V.P.Kapoor and no decree of divorce was granted in favour of Shri V.P.Kapoor in the aforesaid case. However, because of the estranged relations between Shri V.P.Kapoor and respondent no. 6, Shri V.P.Kapoor nominated the petitioner for family pension and the name of respondent no.6 was not recorded as nominee in the official service records of Shri V.P.Kapoor.
After the death of Shri V.P.Kapoor, the petitioner and respondent no.6 both filed applications claiming the family pension of Shri (Late) V.P.Kapoor. The respondent nos.1 to 4 relying on the fact that Shri V.P.Kapoor had nominated the petitioner for family pension and the fact that the petitioner alleged herself to be the divorced daughter of Shri V.P.Kapoor, granted family pension to the petitioner and no action was taken by the said respondents on the application filed by respondent no.6.
Aggrieved, the respondent no. 6 filed Original Application No.330/01013 of 2016 (hereinafter referred to as O.A) under Section 19 of the Administrative Tribunal Act, 1985 praying that the family pension of Shri (Late) V.P.Kapoor be released in her favour as she was the widow of Shri (Late) V.P.Kapoor and the respondents be directed to decide the application submitted by respondent no.6.
It appears from the record that in the aforesaid O.A, the petitioner was not impleaded as respondent. The respondent nos.1 to 4 contested the O.A denying the right of respondent no.6 and supported the case of the petitioner on the ground that she was the divorced daughter of Shri (Late) V.P.Kapoor and was also nominated by Shri V.P.Kapoor to receive his family pension after his death.
In the O.A, the following issue was framed by the Tribunal -
"10. The issue, therefore, that needs determination is "whether the applicant being the legally wedded wife of her husband is entitled for family pension or his daughter, who is a divorce, and whose name has been mentioned by Late Shri V.P.Kapoor specifically in the record?"
The Tribunal vide its judgment and order dated 22.11.2016 allowed the O.A and directed the respondent nos.1 to 4 to release the family pension in favour of respondent no. 6 and discontinued the pension already released by respondent nos. 1 to 4 in favour of the petitioner. While allowing the O.A, the Tribunal relied on the judgments of the Supreme Court in G.L.Bhatia versus Union of India and others 2000(1) ESC 135 and Smt.Violet Issaac and others versus Union of India and others (1991) 1 SCC 725 wherein it was held that only the person designated under the relevant service rules was entitled to receive the family pension regardless of any nomination made by the deceased employee and if there was no divorce between the employee and his spouse, the surviving spouse would be entitled to family pension in terms of the rules. The Tribunal after considering Rule 54 of the CCS (Pension) Rules, 1972 (hereinafter referred to as the Rules, 1972) held that as the applicant i.e. the respondent no.6 was the legally wedded wife of the deceased employee, she was entitled to family pension and according to the priority stated therein, she would get precedence over the divorced daughter.
The judgment and order dated 22.11.2016 has been challenged in the present writ petition.
The counsel for the petitioner has argued that under Rule 54(7)(b) of the Rules 1972, the petitioner being a divorced daughter was entitled to the family pension and the Rules, 1972 do not prescribe any order of priority discriminating between two different persons eligible for family pension. It was argued by the counsel for the petitioner that in view of the aforesaid, the judgment and order dated 22.11.2016 passed by the Tribunal is contrary to law and is liable to be set aside.
Rebutting the arguments of the counsel for the petitioner, Ms.Rashmi Tripathi, respondent no.6 has supported the judgment of the Tribunal and has argued that the petitioner was not entitled to family pension under the Rules and there was no evidence that the petitioner was divorced.
We have considered the rival submissions of the counsel for the parties.
There is no disagreement regarding the legal proposition that only a person eligible under the relevant service rules would be entitled to family pension regardless of any nomination made by the deceased employee and the widow or the living spouse of the deceased would be so entitled even if spouses were living separately but were not divorced.
The rules relevant to decide the dispute between the petitioner and respondent no.6 are the Rules, 1972. Rule 54 of the Rules, 1972 deal with grant of family pension. Rule 54(14)(b) defines family in relation to a Government servant. Rule 54(14)(b) is reproduced below:
"(14) For the purposes of this rule,-
(a) "continuous service" means service rendered in a temporary or permanent capacity in a pensionable establishment and does not include-
1. period of suspension, if any; and
2. period of service, if any, rendered before attaining the age of eighteen years:
(b) "family" in relation to a Government servant means-
1. wife in the case of a male Government servant, or husband in the case of a female Government servant.
NOTE 1 - Deleted NOTE 2 - Deleted (ia) a judicially separated wife or husband, such separation not being granted on the ground of adultery and the person surviving was not held guilty of committing adultery.
Rule 54(2) of the Rules, 1972 state the circumstances in which the family of the deceased Government servant will be entitled to family pension. It is not denied that the family of Shri (Late) V.P.Kapoor was entitled to his family pension. However, the Rules are being reproduced only to show that under the relevant rules, it is the 'family' of the deceased Government servant which is entitled to his family pension.
"Subject to the provisions of sub-rule 13-B and without prejudice to the provisions contained in sub-rule(3), where a Government servant dies-
(I) after completion of one year of continuous service: or
(ii)before completion of one year of continuous service, provided the deceased Government servant concerned immediately prior to his appointment to the service or post was examined by the appropriate medical authority and declared fit by that authority for Government service; or
(iii)after retirement from service and was on the date of death in receipt of a pension, or compassionate allowance, referred to in these rules.
the family of the deceased shall be entitled to Family Pension (hereinafter in this rule referred to as Family Pension) under the Family Pension Scheme for Central Government Employees, 1964, the amount of which shall be determined at a uniform rate of 30% of basic pay subject to a minimum of three thousand and five hundred rupees per mensem and a maximum of twenty-seven thousand rupees per mensem.
EXPLANATION- The expression 'one year of continuous service' wherever it occurs in this rules shall be construed to include 'less than one year of continuous service' as defined in Clause (ii):"
Rule 54(6) of the Rules, 1972 prescribes the period for which the family pension would be payable and it is not the case of either of the parties that the period prescribed in Rule 54(6) of the Rules, 1972 has expired disentitling either the petitioner or the respondent no.6 to family pension because of any of the exclusionary clause prescribed in the aforesaid rules. Rule 54(8)(1) of the Rules, 1972 provide that except as provided in sub rule (7), the family pension shall not be payable to more than one member of the family at the same time. Rule 54(7) of the Rules, 1972 prescribes the manner in which family pension shall be distributed amongst the different persons eligible for grant of family pension. Rule 54(7) of the Rules, 1972 is reproduced below:
"54(7) (a) (i) where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares,
(ii) On the death of a widow, her share of the family pension shall become payable to her eligible child:
[Provided that if the widow is not survived by any child, her share of the family pension shall not lapse but shall be payable to the other widows in equal shares, or if there is only one such other widow, in full, to her.]
(b) Where the deceased Government servant or pensioner is survived by a widow but has left behind eligible child or children from another wife who is not alive, the eligible child or children shall be entitled to the share of family pension which the mother would have received if she had been alive at the time of the death of the Government servant or pensioner.
[Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares shall not lapse, but shall be payable to the other widow or widows and/or to the other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child]
(c) Where the deceased Government servant or pensioner is survived by a widow but has left behind eligible child or children from a divorced wife or wives, the eligible child or children shall be entitled to the share of family pension which the mother would have received at the time of the death of the Government servant or pensioner had she not been so divorced.
[Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares, shall not lapse, but shall be payable to the other widow or widows and/or to the other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child.]
(d) where the family pension is payable to twin children, it shall be paid to such children in equal shares:
Provided that when one such child ceases to be eligible, his/her share shall revert to the other child and when both of them cease to be eligible the family pension shall be payable to the next eligible single child/twin children."
A reading of the aforesaid provision shows that the widow as well as the divorced daughter of a deceased Government servant, if the divorced daughter is born from another wife of the Government servant and the said wife has died, would be entitled to family pension under the Rules, 1972. Under the Rules, 1972, if the pensioner is survived by a widow, but has left behind eligible child from another wife who is not alive, the eligible child shall be entitled to the share of family pension which the mother would have received if she had been alive at the time of death of the Government servant. It is also evident that the surviving widow and the divorced daughter born from the deceased first wife would be entitled to equal shares in the family pension. Further, the Rules, 1972 do not prescribe any order of priority between different persons eligible to receive family pension and in any case, no order of priority has been prescribed by the Rules, 1972 discriminating between the surviving widow and the divorced daughter of the deceased wife of the Government servant/pensioner.
Respondent no. 6 was the legally wedded wife of the deceased Shri (Late) V.P.Kapoor and no decree of divorce dissolving the marriage of respondent no. 6 with Shri V.P.Kapoor was granted by any competent court. A suit for divorce was filed by Shri V.P.Kapoor but the same was never decreed. In the aforesaid circumstances, the respondent no.6 being the widow of Shri (Late) V.P.Kapoor is entitled to family pension of Shri (Late) V.P.Kapoor.
The petitioner claims herself to be the divorced daughter of Shri (Late) V.P.Kapoor. The fact that the petitioner is daughter of Shri (Late) V.P.Kapoor is admitted by respondent no. 6 but it has been stated that the petitioner has not been divorced by her husband.
A reading of the impugned judgment and order dated 22.11.2016 passed by the Tribunal shows that the proceedings before the Tribunal, started at the instance of the respondent no. 6, were continued on the finding that the petitioner was the divorced daughter of Shri (Late) V.P.Kapoor. The aforesaid would be evident from the issue framed by the Tribunal and reproduced before. In her counter affidavit, the respondent no. 6 has not come up with the plea that any application was filed by her before the Tribunal objecting to the marital status of the petitioner as reflected in the issue framed by the Tribunal. It appears from the record that in the proceedings before the Tribunal, the respondent nos.1 to 4 had filed their counter affidavit denying the claim of respondent no.6 on the ground that the petitioner was nominated by Shri V.P.Kapoor and also brought to the notice of the Tribunal that the petitioner was a divorced daughter of Shri (Late) V.P.Kapoor and therefore, entitled to family pension. From a perusal of the issue framed by the Tribunal, it appears that the marital status of the petitioner as brought to the notice of the Tribunal by respondent nos. 1 to 4 was not seriously contested by the petitioner before the Tribunal during the course of argument.
In view of the aforesaid, the challenge to the marital status of the petitioner by the respondent no. 6 before this Court is rejected. Because the petitioner is the divorced daughter of Shri V.P.Kapoor, therefore, under Rule 54(7)(b) of the Rules 1972, the petitioner is also entitled to family pension of Shri (Late) V.P.Kapoor. Thus, the petitioner as well as respondent no. 6 both were eligible and entitled to family pension of Shri (Late) V.P.Kapoor in equal shares.
For the reasons stated above, the judgment and award dated 22.11.2016 passed by Tribunal is contrary to law and is hereby quashed. The respondent nos. 1 to 4 are directed to consider the claim of the petitioner and respondent no. 6 to the family pension of Shri (Late) V.P.Kapoor in accordance with the observations made in the present judgment and pass fresh orders apportioning the family pension to the petitioner and respondent no.6. The respondent nos. 1 to 4 shall pass fresh orders within a period of three months from the date a certified copy of this order is produced before them by either of the parties.
With the aforesaid directions, the writ petition is allowed.
Order Date :- 22.2.2019 IB