Calcutta High Court (Appellete Side)
Union Of India And Others vs Smt. Suniti Sutradhar on 7 February, 2022
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE HARISH TANDON
&
THE HON'BLE JUSTICE RABINDRANATH SAMANTA
WP.CT 65 of 2017
Union Of India and Others
Vs
Smt. Suniti Sutradhar
_______
Mr. Shankar Ranjan Sen.
..... for the Petitioners.
Mr. Kalyan Sarkar
..... for the Respondent
Heard On : 05.01.2022
Judgment on : 07.02.2022
Rabindranath Samanta, J:-
1. This writ petition has been preferred by the
petitioners Union of India & Ors challenging the
order dated 01.07.2016 passed by the Central
Administrative Tribunal, Calcutta Bench, Kolkata
(hereinafter be referred to as the Tribunal) in O.A.
No. 350/01361/2015. The respondent Smt. Suniti
Sutradhar (Dey) filed the Tribunal application
seeking the following reliefs:-
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" i) to direct the respondents to cancel, quash, set aside
the impugned order dated 03.07.2015 as contained in
Annexure "A" herein;
ii) to direct the respondents to grant family pension to
the applicant forthwith;
iii) to direct the respondents to declare that the
impugned Circular of Pensions & Welfare Office
Memorandum No. 1/13/09-P & PW (E) dated 11.09.2013
forthwith along with the impugned circular of DOPT dated
18.09.2014 to be declared as ultra vires;
iv) to issue further direction upon the respondents to
produce the impugned circular No.1/13/09-P&PW (E) dated
11.09.2013 at the time of hearing;
v) and to pass such any other order or further order as
to this Hon'ble Tribunal may deem fit and proper."
2. By the impugned order dated 01.07.2016 the
Learned Tribunal disposed of the application with a
direction upon the petitioners to treat the respondent as a
dependent of the deceased employee for the purpose of
extension of family pension in accordance with RBE
152/2006 and pass appropriate orders by two months from
the date of receipt of the copy of the order.
3. The seminal question involved in this writ petition
is as to whether a daughter of a pensioner who was married,
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but became widowed after the death of the pensioner is
entitled to family pension.
4. Background
facts which are necessary for
adjudication may be summarized as under :
Kristo Kumar Dey, the father of the respondent was a
carpenter, Commercial Department, Eastern Railway,
Howrah and he retired from service on superannuation on
04.12.1967. He was a railway pensioner and died on 23.04.
1986. After the death of her father, her mother Lakshmi Dey
was a recipient of family pension from the Eastern railway.
She died on 15.07.1999.
During the lifetime of her parents, the respondent was
married to Nirmal Sutradhar in the year 1970. But her
husband died on 02.06.2011. The husband of the
respondent was an unemployed person having no individual
income of his own. As such, the respondent and her
husband were fully dependent on the income of her parents.
From an advertisement published by the Eastern railway
authorities in a daily Bengali newspaper namely
Anandabazar Patrika on 01.01.2008, the respondent came
to know that the railway authorities invited applications
from unmarried/divorced/widowed daughters of the ex
railway employees for sanctioning family pension under
certain terms and conditions as mentioned therein.
Pursuant to such advertisement the respondent applied for
family pension in proper format on 31.12.2013 to the
concerned railway authority. She submitted all the required
documents.
But, surprisingly the petitioner no. 6, the Divisional
Railway Manager, Howrah Division, Eastern Railway
rejected the prayer of her for grant of family pension vide
Memo dated 17.03.2015 on the grounds that as her
husband died on 02.06.2011 i.e. after the death of her
parents as per information furnished by her, she was not
entitled to get family pension.
5. The respondent submits that provision for grant of
family pension to a widowed/divorcee daughter of a
pensioner beyond the age of 25 years was made vide office
memorandum dated 30.08.2004 and this provision was
included in clause III of sub-Rule 54 (6) of the Central Civil
Services (Pension) Rules,1972 (in short CCS (Pension)
Rules, 1972). The respondent submits that the Learned
Tribunal by passing an order dated 30.03.2015 in O.A. No.
350/00495/2015 (Smt. Anjana Roy -Vs- Union Of India
and Ors.) questioned the justification of issuance of office
memorandum 18.09.2014 and declared it ultra vires the
Constitution. In such context, the respondent contends that
the clarificatory office memorandum dated 18.09.2014 by
which family pension has been denied to a widowed
daughter of a pensioner is wholly bad in law.
6. After the demise of her husband the respondent
has been residing at her parental home. Under the aforesaid
circumstances the respondent sought for the reliefs as
quoted above.
7. Admittedly and as it appears from the documents
on record, Kristo Kumar Dey, the father of the respondent
retired from service on superannuation on 04.12.1967 and
as a retired employee of the Railways he used to draw
pension. On his demise on 23.04.1986 his widow Lakshmi
Dey became the recipient of family pension. She died on
15.07.1999. It is not in dispute that the respondent Smt.
Suniti Sutradhar (Dey) was married to one Nirmal
Sutradhar and he died on 02.07.2011 i.e. about 2 years
after the death of her pensioner mother Lakshmi Dey.
8. What we find, the respondent in response to an
advertisement published in a Bengali daily newspaper
Anandabazar Patrika on 01.01.2008 made appeal for family
pension in proper format on the demise of her pensioner
mother on 31.12.2012 before the concerned railway
authority. But, the prayer made by her for family pension
was rejected by a Memo dated 17.03. 2015 issued by the
petitioner No. 6, the Divisional Railway Manager, Howrah
Division, Eastern railway. The Memo dated 17. 03.2015 of
the petitioner no. 6 reads as under:
"You have appealed for family pension as per provision
laid down in Railway Board's letter No. F (E) III/98/PN1/4
dated 13.10.2006 (RBE No. 152/2006), circulated under
CPO/ Eastern Railway's Sl. No. 143/06 dated 23.11.2006.
However, in terms of Railway Board's letter No. F (E)
III/2007/PN1/5 dated 30.09.2014 (RBE No. 109/2014), it
has inter alia been clarified that 'Family Pension in respect
of widowed/divorced daughter who got widowhood/divorcee
after the death of their parents will not be considered. Your
case has been examined under the purview of Railway
Board's aforesaid letter and it is found that your husband
died on 02.06.2011, i.e. after the death of your parents as
per information furnished by you (father died on 23.04.1986
and mother died on 15.07.1999). Hence your appeal for
family pension is regretted."
9. As regards sanctioning of family pension to a
widow, son or daughter of a pensioner Rule 54 (6) of the
CCS ( Pension) Rules, 1972 provides as follows:
The period from which the family pension is payable
shall be as under :
i) in the case of a widow or widower, up to the date of
death or re-marriage, whichever is earlier;
ii) in the case of a son, until he attains the age of 25
years; and
iii) in the case of unmarried daughter until she attains
the age of 25 years or until she gets married whichever is
earlier.
10. However, it is explained in this Rule that a
daughter shall become ineligible for family pension under
this sub Rule from the date she gets married. Besides, the
family pension payable to a son or daughter shall be
stopped if he or she starts earning his/her livelihood .
11. It is evident from the office memorandum dated
30.08. 2004 that provision for grant of family pension was
made to a widowed/divorcee daughter beyond the age of 25
years and such provision has been included in clause III of
sub-Rule 54(6) of the CCS (Pension) Rules, 1972. However,
the aforesaid provision was clarified vide office
memorandum dated 11.09.2013 to this extent that if a
daughter became widowed/divorcee during the period when
the pension/family pension was payable to her
father/mother, such daughter, on fulfilment of other
conditions, shall be entitled to family pension. It is spelt
therein that this clarification was aimed at correctly
interpreting the conditions of eligibility of a
widowed/divorcee daughter in terms of the concept of family
pension under the CCS (Pension) Rules,1972. By the office
memorandum dated 18.09.2014 it was clarified that the
family pension should discontinue in those cases where it
has been sanctioned in pursuance of those office
memorandums, but without taking into consideration that
the widowed/divorcee daughter was leading a married life at
the time of death of her father/mother, whoever died later
and was therefore ineligible for family pension. By this
memorandum dated 18.09.2014 it was clarified that it
would be appropriate that in order to maintain equality
before law family pension payable to such daughter should
be discontinued. However, recovery of the already paid
amount of the family pension would be extremely harsh on
them and should not be resorted to.
12. Learned counsel appearing for the respondent
has submitted that the office memorandum dated
18.09.2014 by which the family pension was sanctioned in
favour of a widowed daughter of a deceased pensioner is
unconstitutional as the memorandum discriminates a girl
child of the deceased on getting family pension.
13. Per contra, Learned Counsel appearing for the
appellants has submitted that the object of family pension
under Rule 54(6) of CCS (Pension) Rules, 1972 from the very
inception was to take care of an unmarried daughter who
lost her father before she attained the age of 25 years or
until she got married whichever was earlier. However, this
benefit was extended to a widowed/divorcee daughter of the
family pensioner beyond the age of 25 years, but such
benefit was not available to her if she got married at the
time of the death of her pensioner father/mother.
14. A conjoint reading of all the relevant office
memorandums of the Railways in the light of Rule 54(6) of
CCS (Pension), Rules shows that it was the intention of the
legislature that the benefit of family pension would be
extended to an unmarried daughter till she attained the age
of 25 years or until she got married whichever is earlier.
Such benefit, subsequently was extended to a
widowed/divorcee daughter of a pensioner beyond the age of
25 years.
15. Now let us advert to the contention raised on
behalf of the appellants as to whether a widowed daughter
of the family pensioner will be entitled to family pension
after the death of her father or mother when she was
married.
16. As stated above, the explanation to Rule 54 (6)
clearly mandates that a daughter shall become ineligible for
family pension under this sub-Rule from the date she gets
married. Learned Tribunal by the impugned order directed
the petitioners railway authorities to treat the respondent as
a dependent of the deceased employee for the purpose of
extension of family pension in accordance with RBE
152/2006 and pass appropriate orders within two months
from the date of receipt of the copy of the order.
17. Undisputedly, Lakshmi Dey, the pensioner mother
of the respondent died on 15.07.1999. Nirmal Sutradhar,
the husband of the respondent died on 02.06.2011.
Therefore, at the time of the death of her mother the
respondent was married.
18. As the legislative intent is demonstrated, the
scheme of family pension never included a daughter of a
pensioner who was married at the time of the death of the
pensioner. The legislature has extended the benefit of family
pension to a child/children of a family pensioner on his/her
demise under different circumstances as enumerated in the
relevant rule. As an instance, a mentally retarded child is
bestowed with the legislative blessings to have family
pension throughout his life after the demise of his/her
parent. But, such benefit is not extended to a married
daughter. Extending family pension to a child in distress of
the deceased family pensioner is a policy decision of the
government. A daughter who became widowed after the
demise of her father/mother does not possess any
fundamental or statutory right to claim family pension. In
the absence of any legislation in this regard, the benefit of
family pension cannot be extended to a daughter of a family
pensioner who was married at the time of the death of her
father/mother. It will be unwise on the part of this Court to
exercise its extraordinary or discretionary power to come to
any inference contrary to the policy decision of the
Government.
19. The clarificatory office memorandum dated
18.09.2014 which manifests the very object of family
pension enshrined in Rule 54(6) cannot be termed as
discriminatory and ultra vires the constitution.
20. In view of the observations as above, the point as
raised for determination is answered in the negative.
21. In view of the above, we find that the impugned
order passed by the Learned Tribunal is not sustainable in
law.
22. Accordingly, the order dated 01.07.2016 passed
by the Learned Tribunal in O.A. no. 350/01361/2015 is
hereby set aside. Consequently, the Tribunal application is
dismissed.
23. The interim order of stay stands vacated.
24. No order as to costs.
25. Urgent certified website copies of this judgment, if
applied for, be given to the parties upon compliance with all
requisite formalities.
(Rabindranath Samanta,J.)
I agree,
(Harish Tandon,J.)
