Kumari Poonam Nijhawan vs Union Of India Department Of ...
2023 Latest Caselaw 7267 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 42
 

 
Case :- WRIT - A No. - 19079 of 2018
 
Petitioner :- Kumari Poonam Nijhawan
 
Respondent :- Union Of India Department Of Railways,And 2 Others
 
Counsel for Petitioner :- Siddharth Nandan
 
Counsel for Respondent :- Vivek Kumar Rai
 

 
Hon'ble Suneet Kumar,J.

Hon'ble Rajendra Kumar-IV,J.

Per : Suneet Kumar,J.

1. Heard Sri Siddharth Nandan, learned counsel appearing for the petitioner/original applicant and Sri Goptal Verma, learned counsel appearing for the respondent/Railways.

2. Petitioner/original applicant is seeking quashing of the impugned judgment and order dated 9 May 2018, passed by the Central Administrative Tribunal, Allahabad Bench Allahabad, (for short ''Tribunal') in Original Application No. 1330/01512 of 2015 whereby, the original application (for short ''OA') came to be dismissed.

3. Father of the petitioner was an employee of the respondent-railways and retired on 30 April 1985. Pension of the employee was duly computed and the employee received pension until his death on 13 December 2007. Thereafter, wife of the employee and mother of the petitioner received family pension till her death until 23 October 2013. Petitioner, is the unmarried daughter of the deceased employee who was living with her parents, applied for family pension being dependent on the pensioner.

4. The respondent by the impugned order dated 22 May 2015, rejected the claim of the applicant for family pension which was subject matter of challenge before the Tribunal. The claim of the petitioner came to be rejected on a report submitted by the Welfare Inspector that the petitioner was employed as a teacher in Nirmala Convent School, Jhansi, at consolidated salary of Rs.10,912/- per month. As per the respondent-railways pursuant to Railway Board instructions dated 11 September 2013, since the dependent/widow of the employee was getting minimum pension at Rs. 3500/- per month, therefore, petitioner was not entitled to pension since her monthly salary was more than the minimum pension on the date of death of her mother. Accordingly, pursuant to the Railway Board letter dated 11 September 2013, the respondent-railways rejected the claim of the petitioner that since her salary was more than that of the pension of her mother on the date of her death i.e. 23 October 2013 at Rs. 10,912/-, accordingly, petitioner was not entitled to pension. In other words, it was held that petitioner was not dependent upon her mother as per the Railway Board circulars.

5. The office memorandum dated 11 September 2013, provides for eligibility of widow/divorced daughters for grant of family pension. In para-4 of the office memorandum, it has been clarified that family pension is payable to the children of the deceased employee as they are considered to be dependent on the government servant/pensioner or his/her spouse. The eligibility criteria is that a child, who is not earning equal to or more than the sum of minimum family pension and dearness relief thereon, is considered to be dependent on his/her parents. Similarly, family pension to a widow/divorced daughter is payable, provided, she fulfils all eligibility conditions at the time of death/ineligibility of her parents and on the date of her turn to receive family pension comes. Para-4 reads thus:

"It is clarified that the family pension is payable to the children as they are considered to to dependent on the Government servant/pensioner or his/her spouse. A child who is not earning equal to or more than the sum of minimum family pension and dearness relief thereon is considered to be dependent on his/her parents. Therefore, only those children who are dependent and meet other conditions of eligibility for family pension at the time of death of the Government servant or his/her spouse, whichever is later, are eligible for family pension. If two or more children are eligible for family pension at that time, family pension will be payable to a child on his/her turn provided he/she is still eligible for family pension when the number comes. Similarly, family pension to a widowed/divorced daughter is payable provided she fulfils all eligibility conditions at the time of death/incligibility of her parents and on the date her turn to receive family pension comes."

6. It has not been disputed by the respondents either before Tribunal or before this Court that petitioner is the unmarried daughter of the deceased employee and she is entitled to pension but the claim of the petitioner was rejected only on the ground that she did not fulfil the eligibility criteria i.e. she was earning salary more than the minimum family pension plus dearness relief thereon, on the death of the widow of the employee i.e. 23 October 2013.

7. A categorical stand has been taken by the respondents that the minimum pension of the widow of the employee on the date of death is at Rs. 3500/- plus dearness relief admissible on the pension.

8. As per the records of the railways filed before the Tribunal, family pension of the widow of the deceased employee computed as on 1 January 2006 is at Rs. 5165/-. This is reflected as per Pension Payment Order (PPO) dated 20 December 2010 (R.A.-1), Rs. 1033/- was computed as enhanced pension being 20% additional pension as on 20 March 2013 i.e. the date of death. Additional pension is payable to the pensioner on reaching the age of 80 years, accordingly, on 20 March 2013, the minimum family pension admissible to the mother of the petitioner was at Rs. 6198/- (Rs. 5165 + Rs. 1033) and the admissible dearness relief at 90% was at 5598/-, accordingly, the total pension admissible to the mother of the petitioner on the date of her death i.e. on 20 March 2013, works out at Rs. 11776/-. The computation is as per the report of the railway authorities dated 9 March 2015, which is admitted by the railways. On the said report an endorsement has been made by the competent authority that since the petitioner was earning less than the minimum pension on the date of death, of the pensioner, she is entitled to pension being unmarried daughter. The relevant portion of the endorsement of the authority is extracted:

"As per para-8.5 at page-288 and para-4 of the RBE 99/2013 at page 274 P274 earning of daughter is less than the pension + DA so pension to daughter, is agree to."

9. Learned counsel appearing for the respondent-railways has filed supplementary affidavit on the direction of this Court along with the computation admitting the computation of pension noted herein above. However, it appears that an erroneous stand was taken before the Tribunal, as well as, before this Court in their counter objection/counter affidavit and supplementary affidavit, wilfully and deliberately against their own records. The Pension Payment Order (PPO) dated 20 December 2010, communicated to the State Bank of India, by the railway authority categorically records the minimum family pension at Rs. 5165 w.e.f. 1 January 2006, noted herein above, admissible to the mother of the petitioner.

10. Communication of the Board dated 15 September 2008, has been relied upon by the respondent-Railways which communicates the Government's decisions for implementation of the recommendations of the Sixth Central Pay Commission - revision of provisions regulating pension/family pension etc. The effective date for the revised provisions is on and after 1 January 2006. Reliance has been placed on para 8.1 pertaining to family pension, which reads as follows:

8.1 Family pension shall be calculated at a uniform rate of 30% of basic pay in all cases and shall be subject to a minimum of Rs. 3500/-p.m. and maximum of 30% of the highest pay in the Government. (The highest pay in the Govt. is Rs. 90,000 since 1.1.2006). Rule 75(2) relating to Family Pension, 1964 under Pension Rules shall stand modified to this extent.

11. Para 8.3 further provides that the quantum of family pension available to old family pensioners would be increased as follows:

The quantum of family pension available to the old family pensioners shall be increased as follows:

Age of family pensioners

Additional quantum of family pension

From 80 years to less than 85 years

20% of basic family pension

12. Para 8.4 for the purposes of grant of family pension, the family shall be categorized as under:

8.4 For the purpose of grant of Family Pension, the ''Family' shall be categorized as under:

Category-I

(a) ....

(b) Son/daughter (including widowed daughter), upto the date of his/her marriage/remarriage or till the date he/she starts earning or till the age of 25 years, whichever is the earliest.

13. Para 5 provides for the dependency criteria for the purpose of family pension, which shall be the minimum family pension along with dearness allowance thereon. Para 5 reads thus:

The dependency criteria of the purpose of family pension shall be the minimum family pension along with dearness relief thereon.

14. The respondents had computed the pension of the deceased employee and the family pension w.e.f. 1 January 2006 as noted earlier. In view of the Office Memorandum dated 11 September 2013, pertaining to eligibility for grant of family pension, a child/daughter, who is not earning equal to or more than the sum of minimum family pension and dearness relief thereon is considered to dependent on his/her parents. The eligibility of the daughter child/daughter is to be considered on the date of death of the pensioner. It is admitted by the respondent-Railways that on the date of death of the pensioner, the petitioner was receiving less emoluments than the family pension plus dearness allowance thereon being received by the petitioner.

15. The stand of the respondent-Railways that the minimum family pension admissible to a pensioner is at Rs. 3500/- per month and maximum 30% of the highest pay of the Government, therefore, the petitioner would not be eligible as admittedly her monthly salary was higher than Rs. 3500/- per month. The submission is on misreading of the Rule/Railway Board order dated 15 September 2008. Para 8.1 of the memorandum merely mandates that no pensioner would be entitled to family pension below Rs. 3500/- month. In other words, upon computation of family pension, if the pension works out to be less than 3500/-, the same shall be raised to Rs. 3500/-. In respect of other pensioners upon computation whose pension is over and above Rs. 3500/- that would be the minimum family pension for the purpose of determining the eligibility/dependency of the son/daughter for their claim for family pension. The eligibility of a dependent child/daughter is to be computed on the minimum family pension that was being received by the pensioner at the time of his/her death.

16. In the given facts, it is admitted that the minimum family pension computed as per the Railways was at Rs. 11776/- inclusive of dearness allowance as applicable on the date of death of the pensioner and on the said date the monthly salary of the petitioner was at Rs. 10912/-.

17. In the circumstances, we are of the opinion that the petitioner has been subjected to unnecessary harassment by the respondent-Railway authorities. Accordingly, the writ petition is allowed.

18. The respondents shall compute the pension admissible to the petitioner w.e.f. 23 October 2013 and the same shall be paid month to month. The arrears of pension shall be released within one month from date along with interest @ 8% per annum, on the due amount from the due date.

19. Cost of litigation assessed at Rs. 25,000/- to be paid by the second respondent-General Manager, North Central Railway, Allahabad to the petitioner within the same period.

Order Date :- 14.3.2023

S.Prakash