Dr. A.P.Bajpai {Now Division} vs State Of U.P. And Others
2013 Latest Caselaw 7454 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Case :- SERVICE SINGLE No. - 2965 of 1993
 
Petitioner :- Dr. A.P.Bajpai {Now Division}
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- S.M.K.Chaudhary,Vikas Singh
 
Counsel for Respondent :- C S C
 

 
Hon'ble Rajiv Sharma,J.

Hon'ble Surendra Vikram Singh Rathore,J.

1. Heard learned counsel for the petitioner, learned Standing Counsel for the State of U.P. and perused the material available on record.

2. The instant writ petition was initially filed by Dr. A.P. Bajpai (since deceased) with the following prayer:-

"(i) issue a writ, order or direction in the nature of mandamus directing the opposite parties to pay the pension of the petitioner regularly as well as pay the arrears of pension with effect from 1.6.1988 and further be pleased to issue direction to the opposite parties to pay the provisional pension with immediate effect.

(ii) grant any other relief that this Hon'ble Court may deem fit, proper and just under the circumstances."

3. The case of the petitioner is that he joined the Provincial Medical Service U.P. in March, 1961. After serving on different post, he attained the age of superannuation on 31.5.1988 from the post of Deputy Director Medical Health & Family Welfare. He submitted his pension papers but till the date of filing of the instant petition, no pension was paid to him. Representations were made by him in the month of March, 1991 and reminder was sent on 2.9.1992 but that too paid no dividend. Gratuity was also not paid, which was Rs. 61876/-. In the pension papers, as family members of the petitioner names of his wife Suman Bajpai and son Sameer Bajpai were mentioned. After filing of the instant petition, pension payment order was issued on 27.4.1994 wherein wrong date of his attaining the age of superannuation was mentioned, however, the same was subsequently rectified. During the pendency of the instant petition on 11.4.2004 the only son of the petitioner Sameer Bajpai expired and in the same year on 18.8.2004 wife of the petitioner Smt. Suman Bajpai also expired. The petitioner himself expired on 23.7.2007 and thereafter the present petitioners, who happens to be wife and minor son of Sameer Bajpai were substituted as petitioners and they have also amended the prayer and have made the following prayer:-

"(i) issue a writ, order or direction in the nature of mandamus directing the opposite parties to pay the pension of the petitioner regularly as well as pay the arrears of pension with effect from 01.06.1988 and further be pleased to issue direction to the opposite parties to pay the provisional pension with immediate effect "and further direct the opposite parties to pay 12% interest to the petitioner on the post retirement dues including the payment of monthly pension till the post retirement dues are settled or finally paid to the petitioner and submit a statement of account in respect of payment of post retirement dues such as gratuity, Provident Fund, leave encashment, commuted value of pension and monthly pension particularly the date of amount.

(i-a) to direct the opposite parties to pay monthly pension to the grandson of the deceased petitioner as provided under rule 7 read with rule 3 (ix) of the U.P. Retirement Benefit Rules, 1961 forthwith.

(i-b) issue a writ of certiorari or a writ, order or direction in the nature of certiorari to quash the letter dated 22.12.2010 (contained in Annexure -14 to the writ petition) by means of which the claim of the petitioners to grant family pension to the grandson of the deceased petitioner was rejected."

4. Learned counsel for the petitioner has submitted that to grant the family pension in favour of the minor sons of pre-deceased son of Dr. A.P. Bajpai, a representation was moved before the competent authority but the same was rejected by means of letter dated 22.12.2010. Further submission of learned counsel for the petitioner is that family members of Dr. A.P. Bajpai are entitled to get the interest on the outstanding dues and on delayed payment of retiral benefits and sons of predeceased son also entitled for the family pension. He has drawn the attention of the Court towards the provisions of The Uttar Pradesh Retirement Benefits Rules, 1961, Rule 3 defines the family, which reads as under:-

(3) "Family" means the following relative of an officer;

(i) wife, in the case of any male officer,

(ii) husband, in the case of a female officer,

(iii) sons (including such step-children and adopted children)

(iv) unmarried and widowed daughters (Including such step-children and adopted children)

(v) Brothers below the age of 18 years and unmarried and widowed sisters (including step-brothers and step-sisters),

(vi) father,

(vii) mother

(viii) married daughters (including step-daughters), and

(ix) children of a predeceased son;

7. Family Pension.-(1) A family pension not exceeding the amount specified in sub-rule (2) below may be granted for a period of ten years to the family of an officer who dies, whether after retirement or while still in service after completion of not less than 20 years' qualifying service:

Provided that the period of payment of family pension shall in no case extend beyond a period of five years from the date on which the deceased officer reached or would have reached the age of compulsory retirement.

Notes.-(1) Government may,. It exceptional circumstances, consider at their discretion the award of family pension of the family of an officer who may die before completing 20 year's qualifying service but after completing not less than 20 years' qualifying services.

(2) In cases where the qualifying service is less than the prescribed minimum the deficiency should not be condoned by invoking the provisions of Article 423 (1) of the Civil Service Regulations.

(2). The amount of family pension will be-

(a) in the event of death while in service, one-half of the superannuation pension which would have been admissible to the officer has been retired on the date following the date of his death, and

(b) In the event of death after retirement, one-half of the pension sanctioned to him at the time of retirement:

Provided that the amount of family pension will be subject to a maximum of Rs. 150 per mensem and a minimum of Rs. 30 per mensem:

Provided further that the minimum pension will not in any case, exceed the full amount of the pension sanctioned to the deceased officer at the time of his retirement or in case he dies while in service, the pension that would have been admissible to him if he had retired on a superannuation pension on the date following the date of his death.

Note.- The amount of family pension will be reduced by the amount of pension commuted, if any, by the pensioner before his death. For example, if the ordinary pension was Rs. 90 per mensem and an amount of Rs. 30 out of this had been commuted, the amount of family pension will be Rs. 90/2-30= Rs. 15 per mensem.

(3) No pension shall be payable under this Part-

(a) to a person mentioned in clause (b) of sub-rule (4) below, unless the pension sanctioning authority is satisfied that such person was dependent on the deceased officer for support;

(b) to an unmarried female member of the family, in the event of her remarriage;

(c) to widowed female member of the family, in the event of her remarriage;

(d) to a brother of the deceased officer on his attaining the age of 18 years; and

(e) to a person who is not a member of the deceased officer's family.

(4) Except as may be provided by a nomination under sub-rule (5) below:

(a) a pension sanctioned under this Part shall be granted-

(i) to the eldest surviving widow, if the deceased was a female officer;

(ii) failing the widow or husband, as the case maybe to the eldest surviving son;

(iii) failing (i) and (ii) above, to the eldest surviving unmarried daughter,

(iv) these failing, to the eldest widowed daughter and

(b) in the event of the pension not becoming payable under clause (a) the pension may be granted-

(i) to the father;

(ii) failing the father, to the mother;

(iii) failing the father and mother both, to the eldest surviving brother below the age of 18;

(iv) these failing, to the eldest surviving unmarried sister;

(v) these failing (i) to (iv) above, to the children of a predeceased son in the order it is payable to the children of the deceased officer under clause (a) (ii), (iii) and (iv), above.

Note.- The expression "eldesta surviving widow" occurring in clause (a) (i) above, should be construed with reference to the seniority according to the date of marriage with the officer and not with reference to the age of surviving Widows.

(5) A Government Servant shall immediately after his confirmation, make a nomination in Form "E" indicating the order in which a pension sanctioned under his Part should be payable to the members of his family, and to the extent it is valid the pension will be payable in accordance with such nomination provided the nominee concerned is not ineligible, on the date on which the pension may become payable to him or her to receive the pension under the provisions of sub-rule (3), In case the nominee concerned is or has become ineligible to receive the pension under the said sub-rule, the pension shall be granted to the person next lower in the order in such nomination. The provisions of sub-rules (5) (b), (7) and (8) of rule 6 shall apply in respect of nomination under this sub-rule

(6) (a) A pension awarded under this Part shall not be payable to more than one member of the deceased officer's family at the same time.

(b) If a pension awarded under this Part ceases to be payable before the expiry of the period mentioned in the proviso to sub-rule (1) on account of death or marriage of the recipient or any other cause, it will be re-granted to the person next lower in the order mentioned in sub-rule (4) or to the person next lower in the order shown in the nomination under sub-rule (5), as the case may be, who satisfied the other provisions of this Part.

(7) A pension sanctioned under this Part will be tenable in addition to any extraordinary pension, gratuity or compensation that may be granted to the members or an officer's family under the existing rules or Acts.

(8) Future good conduct of the recipient is an implied condition of every grant of pension under this part. Government reserve to themselves the right of withholding or withdrawing such pension or any part thereof, if the recipient be convicted of serious crime or be guilty of grave misconduct. Decision of the Government in such matters shall be final.

5. In the counter affidavit dated 30.10.2012, it has been stated that the petitioner retired from service on 31.5.1988 after attaining the age of superannuation and he has been paid all his post retiral dues in his lifetime. It is further stated that the deceased had died on 23.7.2007 and after his death, on 8.12.2008, a Government Order was issued pursuant to recommendations of the Pay Commission with respect to payment of pension/gratuity/family pension and encashment. By virtue of the aforesaid government order dated 8.12.2008 the same has been made applicable on the government servants, who retired or had died on 1.1.2006 and thereafter. Since the petitioner had died subsequent to the said cut off date, therefore the aforesaid government order would be applicable in the instant case. As per the provisions of the aforesaid government order for the purpose of admissibility of pension, family has been classified in two parts;

Class-(1)		A widow/widower, till life time or till remarriage 			whichever  is  earlier by son/daughter (including 			widow daughter) till marriage/remarriage.
 
Class-(2) (c)	Unmarried/widow/divorced daughter who is not 			covered by Class-1 till  marriage or remarriage 				or from the date of employment or till death 				whichever is earlier.
 
	 (d)		Such mother and father who were dependent 				upon the government servant in his life time 				and the government servant had not left behind 			any widow/widower or children.
 

6. Submission is that family pension is a right of government servant, which accrued on the ground of his long length of service. It is not a bounty or gifts of the department. Therefore, the department is liable to make the payment of pension within time. If there is any unreasonable or undue delay in the payment of the same then the interest shall be payable on him. Learned counsel for the petitioners has placed reliance on some case laws, which shall be considered at the relevant part of the judgment.

7. The prayer of the petitioners by means of amended petition is now two folds; first is with regard to the interest on the delayed payment of pension and the second is regarding family pension in favour of the minor sons of the predeceased son.

8. So far as the first submission is concerned, it is clear from the averments made in the petition and also in the counter affidavit that pension was paid after a considerable delay. The petitioner stood retired on 31.5.1988 and the PPO was issued for the first time on 27.4.1994 i.e. after about six years of his attaining the age of superannuation.

9. However, it has been pleaded on behalf of the respondents that entire payment has been made but the details of the said payment have not been specified in the counter affidavit. It is not clear from the perusal of the counter affidavit whether any interest on the delayed payment has been paid or not. It has nowhere specifically been pleaded in the counter affidavit that any interest has been paid on the delayed payment.

10. For payment of pension, learned counsel for the petitioner has place reliance upon the pronouncement of Hon'ble the Apex Court in the case of Smt. Bhagwanti Vs. Union of India reported in (1989) 4 SCC 397 has held in paragraph no. 9 as under:-

"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 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........................"

Reliance has also been placed on the pronouncement of Hon'ble the Apex Court in the case of Smt. Poonamal and others Vs. Union of India and others reported in (1985) 3 SCC 345 wherein the Hon'ble Court has held in paragraph no. 7 as under:-

"7. It is not necessary to examine the concept of pension. As already held by this Court in numerous judgments pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the Government but is governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right. (Deoki Nandan Prasad v. State of Bihar 1971 Supp SWCR 634; D.S. Nakara v. Union of India (1976) 3 SCR 360). Where the Government servant rendered service to compensate which a family pension scheme is devised, the widow and the dependent minors would equally be entitled to family pension as a matter of right. In fact we look upon pension not merely as a statutory right but as a fulfillment of a constitutional promise inasmuch as it partakes the character of public assistance in cases of unemployment, old-age, disablement or similar other cases of undeserved want. Relevant rules merely make effective the constitutional mandate. ......................"

Reliance has also been placed on the pronouncement of Division Bench of this Court in the case of C.M. Wahal (Decd.), through L.Rs. Vs. Divisional Manager, L.I.C. Of India, Varanasi and another reported in 1997 A.W.C. (Supp.) 204 has held in paragraph no. 5 as under:-

"5. In the instant case, there is culpable delay in making the payment of outstanding dues to the petitioner. In paragraphs 8 and 9 of the counter-affidavit filed on behalf of the respondents, it has been stated that since certain enquiries were pending against the petitioner, therefore, the payment of his outstanding dues was withheld. But neither the nature of such enquiry has been disclosed, nor is there anything on the record to establish the pendency of the enquiry against the petitioner. Only vague allegations have been made about it. It is admitted that no disciplinary enquiry was initiated against the petitioner either before or after his retirement and no such enquiry was pending at the time of his retirement. Therefore, there was no justification to withhold the payment of the outstanding dues of the petitioner for a period of about four years. The respondents did did not take any effective step for payment of the dues to the petitioner inspite of his repeated representations and reminders to various functionaries of the L.I.C. The petitioner ultimately had to file the writ petition and in view of the order of this Court directing, the L.I.C. To decide the representations regarding non-payment of the dues, the payment was made in 1989. under law, the respondents were bound to make the payment to the petitioner his all outstanding dues at the time of retirement or in any case immediately thereafter. But they have failed to discharge their legal obligation. Therefore, they have to pay the interest to compensate the petitioner for retention of the amount belonging to him."

11. In view of the aforesaid case laws, it is clear that payment of pension is a right and that too has to be paid at the earliest stage. It is the right of the government servant. In the facts of this case, the State had utterly failed to make payment of the pension of Dr. A.P. Bajpai within time. There is no specific averment in the counter affidavit that interest on the delayed payment has also been paid.

12. Learned counsel for the petitioner has brought to the notice to the Court a Government Order No. lk&3&[email protected]&[email protected] dated 6.12.1994 whereby order for payment of interest on delayed payments was modified and provision was made for payment of 12% interest per annum on delayed payment of pension, which is payable on delayed payment of provident fund. Therefore, the petitioners were entitled for interest at the rate of 12% per annum on the delayed payment of gratuity and family pension.

13. Now the next point is to be considered whether petitioner no. 1/2 and 1/3 being the son of the predeceased son are entitled for family pension or not. The date of birth of the predeceased son Sameer Bajpai was mentioned in the pension papers as 15.4.1961. Sameer Bajpai expired on 11.4.2004, which means that on the date of his death, he was about 43 years old. Dr. A.P. Bajpai expired on 23.7.2007. Dr. A.P. Bajpai died after coming into force of government order of 2008 dated 8.12.2008.

14. Learned counsel for the petitioner has also filed Government Order No. lk&3&[email protected]&[email protected] dated 24.2.1998 (Annexure No. 5 to the amended petition), which provides for maximum age limit for entitlement of family pension and this maximum age limit was enhanced from 21 years to 25 years in case of sons. In case of daughter, it was enhanced from 24 years to 25 years. Meaning thereby after attaining age of 25 years the son of a government servant shall not be entitled for the payment of family pension provided he remain unemployed till attaining the age of 25 years. Even if the son of the deceased petitioner Dr. A.P. Bajpai would have survived even then he was not entitled for the family pension because he has crossed the maximum age limit of 25 years much earlier. The sons of Sameer Bajpai could not inherit better right then his own father. Therefore, in the facts of this case, in our considered opinion, family pension is not payable to the present petitioners. Order dated 22.12.2010 rejecting the representation of the petitioner for grant of family pension need not to be interfered with.

15. In view of the discussion made above, this writ petition deserves to be partly allowed and is hereby partly allowed. The petitioners shall be entitled for interest as provided under the relevant government orders at the rate, which is admissible under the government orders on delayed payment of pension and if the same has not already been paid then the same shall be paid within a period of three months from the date a certified copy of the judgment is produced before the concerned authority. To this extent the writ petition is allowed. The second prayer for grant of family pension in favour of the son of the predeceased son is hereby declined.

16. No order as to costs.

Order Date :-13th December, 2013.

Virendra