Vimalbai Supdu Patil vs The State Of Maharashtra And Ors
2016 Latest Caselaw 3192 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
               AURANGABAD BENCH, AURANGABAD




                                                  
                   WRIT PETITION NO. 1884 OF 2012




                                                 
    Smt. Vimalbai Supdu Patil,
    age 70 years, occ. Household,
    R/o 36 Rooms, Shivaji Nagar,
    Amalner, Taluka Amalner,
    District Jalgaon                               ...Petitioner




                                         
                     
             VERSUS
                             
    1. The State of Maharashtra,
       through the Ministry of
       Village Development, 
                            
       Mantralaya, Mumbai,

    2. The Zilla Parishad, Jalgaon,
       Jillha Parishad Bhavan, Jalgaon
       (Notice may kindly be served on
      


       the Chief Executive Officer,
       Zilla Parishad, Jalgaon),
   



    3. The Panchayat Samiti, Amalner,
       Panchayat Samiti Office, Amalner
       (Notice may kindly be served on





       the Block Development Officer,
       Amalner)                        ...Respondents

                             .....
    Shri M.M.Bhokarikar, advocate  for petitioner 
    Shri A.G.Magare, A.G.P. for respondent no.1





    Shri M.S.Sonwane, advocate for respondent nos. 2 and 3
                             .....

                        CORAM : S.S.SHINDE 
                                              AND
                                         SANGITRAO S.PATIL, JJ.

                        DATE OF RESERVING
                        THE JUDGMENT         : 16.6.2016
                        DATE OF PRONOUNCING 
                        THE JUDGMENT         : 24.6.2016



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    JUDGMENT (Per Santigrao S.Patil, J.) 

Rule. Rule made returnable forthwith. With

the consent of the learned counsel for the

parties, heard finally.

2. The petitioner has challenged the validity

of rejection of her claim for family pension made

upon the death of her son namely Deelip Supdu

Patil in harness.

3. The son of the petitioner was serving as a

Gram Sevak since 3rd April, 1984. He was the

permanent employee of respondent nos. 2 and 3

namely Zilla Parishad, Jalgaon and Panchayat

Samiti, Amalner, respectively. He died on 29 th

January, 2007 in harness. The petitioner is the

only Class I legal heir of her son. Accordingly

she obtained heirship certificate from the

Tahsildar on 21st March, 2007. On the basis of

that certificate she was paid an amount of

Rs.1,41,450/- towards gratuity vide order dated

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30th September, 2008. Being the only legal heir

of her deceased son and being wholly depending on

him for livelihood, the petitioner claimed family

pension. However, her claim for family pension

came to be rejected on the sole ground that she

does not come within the definition of 'family' as

given in clause (b) of sub-rule (16) of Rule 116

of the Maharashtra Civil Services (Pension) Rules,

1982 ('the Pension Rules' for short).

4. The learned counsel for the petitioner

submits that grant of family pension to the

dependents of the deceased employee is an outcome

of beneficial legislation. He submits that as per

the Family Pension Scheme 1950 given in Rule 117,

in the absence of the members of the family of the

deceased Government servant as described in clause

(a) of sub-rule (6), the family pension may be

granted to the father and if father is not alive

then to the mother of the Government servant vide

clause (b) of sub-rule (6). He further submits

that as per the Extra Ordinary Family Pension

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Scheme enumerated in Appendix IV of the Pension

Rules of 1982 in the absence of the members of the

family of the Government servant as described in

clauses (i) to (iv) of sub-rule (3) of Rule 4,

family pension can be awarded to the mother

depending upon the deceased Government servant for

support. However, under the same circumstances as

per the provisions of Family Pension Scheme of

1964 as contained in Rule 116 of the Pension Rules

the mother of the deceased Government servant has

been denied such a relief by not including her in

the term 'family' as given in clause (b) sub-rule

(16). He submits that this amounts to

discrimination under Article 14 of the

Constitution of India.

5. The learned counsel for the petitioner

cited the decision in the case of Kunhami vs Union

of India (Uoi) (2006 (2) KLT 661), based on

Regulation 216 of the Army Regulations, which

includes mother of the deceased employee in the

definition of family. In that case, consequent

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upon remarriage of the widow of the deceased

employee his mother was granted family pension.

6. The learned counsel further pointed out

the Resolution, dated 22nd January, 2015 passed by

the Government of Maharashtra, Department of

Finance, whereby in the absence of the relations

of the deceased employee having preferential right

to get family pension, the mother of such single

Government employee, wholly depending on him, has

been held to be eligible to get family pension

under Rule 116 of the Pension Rules. He, submits

that the deceased son of the petitioner died as a

single Government servant, in the sense, he was

the only surviving child of the petitioner and had

no surviving spouse and children as clarified in

the Government Resolution dated 22nd January, 2015.

He, therefore, submits that the petitioner cannot

be subjected to discrimination by refusing to

grant family pension in view of this Government

Resolution as well.

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7. As against this, the learned Assistant

Government Pleader relying on the reply filed by

respondent no.3 and in view of the provisions of

Rule 116 (16) of the Pension Rules submits that

since the petitioner, who is the mother of the

deceased Deelip, does not fall within the

definition of 'family', is not entitled to get

family pension, though the deceased Deelip was the

single Government servant and the petitioner is

his only Class I legal heir.

8. Indeed Rule 116 of the Pension Rules

contains benevolent provisions framed with the

object of extending financial assistance to the

eligible member of the family of the deceased

employee depending on him, who is put to suffer a

great hardship after the demise of the sole

earning member of the family. Consequently such

benevolent provisions have to be interpreted

liberally so as to achieve the object behind

framing such provisions.

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9. As seen from Sub-rule (1) of Rule 117 the

provisions of this Rule are applicable to a

Government servant who was in service on 31st

December, 1963 and had specifically opted for the

scheme of Family Pension, 1950, admissible under

the Revised Pension Rules, 1950 in Appendix XIV-C

of the Bombay Civil Services Rules, 1959, Volume

II, as amended from time to time.

10. Rule 62 (8) of the Pension Rules defines

Extra Ordinary Family Pension which is granted to

the family of the deceased Government servant

under the Rules contained in Appendix IV.

11. In both of these Schemes the term 'family'

includes, amongst others, the mother of the

deceased Government servant. She is entitled to

get family pension in case she is wholly depending

on the deceased Government servant for support

and no other member of the family of the deceased

Government servant, who is vested with a prior

right to receive family pension than the mother,

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is surviving. However, 'mother' has been excluded

from the definition of 'family' in the Family

Pension Scheme, 1964 enumerated in Rule 116 of the

Pension Rules.

12. There is absolutely no rationale or

justification behind excluding the mother from the

definition of 'family' in the Family Pension

Scheme 1964. The mother of the deceased

Government servant, who is otherwise entitled to

receive family pension under the Family Pension

Scheme 1950 (Rule 117) or under Extra Ordinary

Family Pension Scheme (Appendix IV), thus, has

been discriminated by denying her the same right

to receive family pension vide Rule 116 of the

Pension Rules. In our view, this denial of right

to the mother of the deceased Government servant

to receive family pension under the Family Pension

Scheme 1964 (Rule 116) amounts to discrimination

and as such would infringe the fundamental right

to equality as enshrined in Article 14 of the

Constitution of India.

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13. Here reference may be made to the

Government Resolution No.PEN 2011/CR-54/Seva-4,

dated 22nd January, 2015 published by the

Government of Maharashtra, Finance Department,

whereby mother of the deceased Government servant,

who is wholly dependent on him, has been held to

be entitled to get family pension if other family

members of the deceased Government servant, who

have a prior right to receive family pension, are

not surviving. This Government Resolution has

been made applicable to the employees of the

Maharashtra Zilla Parishads vide proviso to

Section 248 of the Maharashtra Zilla Parishads and

Panchayat Samities Act, 1961.

14. In the 'Introduction' part of the said

Government Resolution it is mentioned that since

the definition of the term 'family' under the

existing Pension Rules does not cover parents of a

Government servant, as a social security measure

the scope of the term 'family' defined under

Pension Rules has to be enlarged restrictively by

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amending the Rules suitably to include into its

ambit the wholly dependent parents of a single

Government servant. In clause (11) of the said

Government Resolution it has been mentioned that a

formal amendment to the Maharashtra Civil Services

(Pension) Rules, 1982 will be made in due course.

This Government Resolution fortifies our view that

there was no rationale or justification in

excluding the parents of the deceased Government

servant from the term 'family' as given in the

Family Pension Scheme 1964 (Section 116).

Therefore, the decision of the respondents in

denying family pension to the petitioner, who is

the only surviving family member of deceased

Deelip, who is stated to be wholly dependent on

him for livelihood, is not sustainable since it

has the effect of discriminating the petitioner

and depriving her of the fundamental right to

equality as enshrined in Article 14 of the

Constitution of India.

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15. In the above circumstances, the

respondents will have to be directed to reconsider

the case of the petitioner for grant of family

pension under Rule 116 of the Pension Rules of

1982 considering the object of the Pension Scheme,

1964. The respondents should take liberal

approach and should not turn down the request of

the petitioner for grant of family pension on

technical grounds.

16. In the result, we pass the following

order.

(i) The Writ Petition is allowed.

(ii) The petitioner shall submit a fresh proposal for family pension before respondent no.3 within two weeks from

today.

(iii) Respondent no.3 shall send the necessary proposal of the petitioner for family pension to respondent no.2 within four weeks from receiving the same from the petitioner. On receiving the said

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proposal, respondent no.2 shall consider the claim of the petitioner for grant of

family pension on its own merits and take decision thereon within four weeks, in view of the provisions of Rule 116 of

the Family Pension Scheme, 1964 from the date of death of her son Deelip i.e. 29th January, 2007 onwards. However, the

said claim should not be rejected on the

ground that she does not fall within the ambit of the term 'family' as contained

in clause (b) sub-rule (16) of Rule 116 of the Pension Rules.

(iv) With these directions the Writ Petition is disposed of.

                (v)            Rule       is        made          absolute 





                accordingly.  


                (vi)           No costs.





         (SANGITRAO S. PATIL)     (S.S.SHINDE)
                       JUDGE                 JUDGE


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