Smt. Anita vs Union Of India & Ors.
2012 Latest Caselaw 4504 Del

             * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Date of decision: 30th July, 2012

+                     REVIEW PETITION NO.290/2011
                                   IN
                          W.P.(C) NO.8241/2009

%      SMT. ANITA                                            .... Petitioner
                             Through:       Mr. R.L. Kadamb & Mr. Bankey
                                            Bihari Sharma, Advs.

                          Versus
    UNION OF INDIA & ORS.                        ..... Respondents
                  Through: Dr. Vijendra Mahndiyan & Ms.
                             Pallavi Awasthi, Advs. for Review
                             Applicant / respondent.
                             Mr. Himanshu Bajaj, Adv. for R-2 to
                             R-4.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                     JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. Review is sought by the contesting respondents of the common

judgment dated 28.04.2011 disposing of the writ petition in which review is

sought as well as W.P.(C) No.5159/2008, directing the Air Force to release

the arrears of pension (together with interest if admissible thereon) pursuant

to the demise of one Sh. Jai Rajan Paniker and to in future continue to pay

the said pension in accordance with law, to the petitioner Smt. Anita. The

respondent / review applicant Smt. Rita claims that the said Sh. Jai Rajan

Paniker who had admittedly filed for divorce from the petitioner Smt. Anita

had subsequently married her and the respondents Prerna Paniker and

Hardek Paniker were born from the said wedlock. Pension was directed to

be paid to the petitioner Smt. Anita for the reason of the marriage of Smt.

Anita with the said Sh. Jai Rajan Paniker having admittedly not been

dissolved and Rule 54 (6) of the CCS (Pension) Rules, 1972 providing for

the right of the widow in the first instance to pension and for payment of

pension to children only after the widow.

2. Notice of the review petition was issued on the counsel for the review

petitioner referring to Rameshwari Devi Vs. State of Bihar AIR 2000 SC

735 and till decision of the review petition, the direction for payment of

pension to the petitioner Smt. Anita was confined to the extent of one-third

only. Subsequently on being informed that notwithstanding the judgment

dated 28.04.2011, no part of the pension had been disbursed to Smt. Anita

till then, vide order dated 11.05.2012 the operation of the judgment was

stayed. The counsels have been heard and have also filed written

arguments. Though review was sought on several grounds but the counsel

for the petitioner, as recorded in the order dated 13.05.2011, pressed review

only on the basis of judgment aforesaid.

3. Direction in the judgment of which review is sought, for payment of

family pension to the petitioner Smt. Anita was issued only for the reason of

the Rule qua pension providing for the first right of the widow thereto, even

though the entitlement of the children, if ultimately held to be of the

deceased Sh. Jai Rajan Paniker, though from an illegal or void marriage,

under Section 16 of the Hindu Marriage Act, 1955 was noticed. The

Supreme Court in Rameshwari Devi (supra) has held that 'when a Hindu

male dies intestate, the children of the deceased employee born out of the

second wedlock would be entitled to a share in the family pension

........(though) only till they attain majority'.

4. The counsel for the respondent / review applicant Smt. Rita also relies

on Rajeshwari Vs. Silvia Florance 2002 LawSuit (Kar) 632 where a

learned Single Judge of the Karnataka High Court relying on Rameshwari

Devi (supra) held that family pension is designed to provide relief to the

widow and minor children and is in the nature of a welfare scheme and that

merely because the family pension is required to be sanctioned only in the

name of certain persons that does not mean that they are the only

beneficiaries of the scheme and that ultimately pension can be sanctioned in

the name of more than one person. Relying again on Section 16 of the

Hindu Marriage Act, the children of the deceased government servant

though borne of a void marriage were held entitled to the amount payable

under the Family Pension Scheme during the period of their minority.

5. The counsel for the respondent / review applicant Smt. Rita further

relies on Vijayshree Sharma Vs. Union of India 2010 LawSuit(Chh) 19

where a Division Bench of the Chhattisgarh High Court also directed

disbursement of family pension in equal share to the widow, two children

from the wedlock and two children from a second marriage of the deceased

government servant.

6. The counsel for the respondent / review applicant Smt. Rita has thus

argued that the petitioner Smt. Rita in any case is not entitled to more than

one-third share in the family pension, the other two-third shares being of

minors Prerna Paniker and Hardek Paniker aforesaid if ultimately held to be

the children of the deceased Sh. Jai Rajan Paniker.

7. The counsel for the petitioner Smt. Anita on the contrary has

contended that the judgment of the Apex Court in Rameshwari Devi is

without reference to any pension Rules; that the pension of the deceased Sh.

Jai Rajan Paniker is governed by the CCS (Pension) Rules (supra) which

entitle the widow alone to the same and the right of the children, even if of

the deceased, is only in the event of the widow being not available. The

judgment of the Karnataka High Court is sought to be distinguished by

demonstrating the difference in the Pension Rules in that case and the CCS

(Pension) Rules. It is further contended that the deceased Sh. Jai Rajan

Paniker had also nominated Smt. Anita to receive the pension and which

factor also distinguishes the present case from the judgments relied upon by

the review petitioner. Reliance is placed on Jinia Keotin Vs. Kumar

Sitaram Manjhi (2003) 1 SCC 730 and G.L. Bhatia Vs. Union of India

(1999) 5 SCC 237.

8. Having considered the matter, it is found that in the face of the

judgment of the Apex Court in Rameshwari Devi, the matter is no longer

res integra. It cannot also be lost sight of that pension is prefaced with the

word 'family' which is indicative of the same being for the benefit of the

family of the deceased. The said position remains unchanged under the

CCS (Pension) Rules also. If ultimately minors Prerna Paniker and Hardek

Paniker are held to be the children of the deceased Sh. Jai Rajan Paniker,

they would, by virtue of Section 16 of the Hindu Marriage Act (supra), form

members of the family of the deceased Sh. Jai Rajan Paniker and be entitled

to a share in the family pension and owing to the facts aforesaid, the

petitioner Smt. Anita cannot be expected to, out of the pension disbursed to

her, look after their interest also. Thus, the pension of their share has to be

necessarily disbursed separately to them. Not only so, a close reading of

Rule 54 of the CCS (Pension) Rules also shows that the entitlement to

pension is of the family of the deceased; the period for which family

pension is payable is relatable to the life spell of the widow / widower or till

re-marriage and in the case of a son until he attains the age of 25 years and

in the case of an unmarried daughter until she attains the age of 25 years or

until she gets married, whichever is earlier; under Rule 54(7)(b) of the CCS

(Pension) Rules, pension is provided to be payable in shares as mentioned

therein. It is thus not as if the CCS (Pension) Rules provide for the widow

alone to be the beneficiary of pension.

9. The counsel for the petitioner Smt. Anita has laid considerable

emphasis on Rule 54(8) of the CCS (Pension) Rules which bars payment of

pension to more than one member of the family at the same time except in

the situations provided for in Sub-rule (7) of Rule 54. Undoubtedly the

situation as is arising in the present case is not covered by Sub-rule (7) of

Rule 54. However Sub-rule (7) of Rule 54 does contemplate children from

different wives and provides for payment of separate pension to them.

Though the Apex Court in Rameshwari Devi has not discussed the said

Rules but I am of the opinion that the Sub-rule (7) of Rule 54, in the light of

the dicta of the Supreme Court cannot be given a restricted meaning and the

bar in Sub-rule (8) of Rule 54 to payment of pension to more than one

member of the family cannot be interpreted so as to defeat the provisions of

other laws i.e. Section 16 of the Hindu Marriage Act.

10. Accordingly, the review petition is allowed and the judgment dated

28.04.2011 is reviewed and modified by holding that the petitioner Smt.

Anita at this interim stage is entitled to only one-third share of the family

pension. The respondent Air Force is now directed to within eight weeks

release one-third arrears of pension of the deceased Sh. Jai Rajan Paniker to

the said Smt. Anita together with pro-rata interest if any admissible thereon.

11. The learned Civil Judge before whom the suit between the parties is

pending, is in the circumstances also requested to dispose of the same as

expeditiously as possible.

No costs.

RAJIV SAHAI ENDLAW, J

JULY 30, 2012 'gsr'