Gujarat High Court

Union Of India vs Rekhaben D/O Gopalbhai N Parmar on 22 December, 2021

Bench: N.V.Anjaria

     C/SCA/1871/2021                              ORDER DATED: 22/12/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 1871 of 2021

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                            UNION OF INDIA

                                 Versus

                   REKHABEN D/O GOPALBHAI N PARMAR

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Appearance:

MS ARCHANA U AMIN(2462) for the Petitioner(s) No. 1,2,3

SUNITA S CHATURVEDI(2572) for the Respondent(s) No. 1

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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                            Date : 22/12/2021

                             ORAL ORDER

(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)

1. The present petition is filed under article 226 and

227 of the Constitution of India by the Union of India being

aggrieved and dissatisfied with the order dated

31.08.2020 by the learned Central Administrative Tribunal,

Ahmedabad in Original Application No. 255 of 2020. The

main contention raised is that the impugned order passed

by the Tribunal is erroneous as the respondent is not

C/SCA/1871/2021 ORDER DATED: 22/12/2021

entitled to get family pension in view of Rule 75 of Family

Pension Scheme for Railway Servants, 1964.

2. The factual matrix is that Rekhaben who is daughter

of deceased employee Gopalbhai N. Parmar, approached

the railway authorities by making representation on

10.04.2018 with all required documents and requested to

grant her family pension as divorced daughter of the

pensioner since her father Gopalbhai N. Parmar was a

railway employee. It transpires from the record that in

response to the representation made by Rekhaben who is

present respondent, the railway authorities asked for

some more documents vide letter dated 18.05.2018 and

in response to the said letter, present respondent

Rekhaben submitted all the copies of necessary

documents with the copy of the decree of the Court as

well as the deed of customary divorce. However, the

railway authorities by order dated 28.11.2019 rejected the

representation made by Rekhaben - present respondent

on the ground that as per the conditions stipulated in

Railway Board's Instructions i.e. RBE No.102/2017 dated

C/SCA/1871/2021 ORDER DATED: 22/12/2021

23.08.2017, she was not found eligible.

2. It is also relevant to note that as her father was

railway employee who had worked as DMS/1/GS/SBE and

retired on 30.06.2003 on superannuation. He died on

17.07.2003. In his order for payment of pension the name

of Rekhaben - present respondent was mentioned in the

details of the family members. After the death of of her

father, the widow of the deceased employee i.e. mother of

Rekhaben - present respondent was paid family pension.

Rekhaben was residing with her mother as dependent and

subsequently got married on 22.05.2005. However, due to

domestic problems the husband of Rekhaben deserted her

and did not call her back to her matrimonial home.

Rekhaben delivered a child and since her husband had

deserted her, Rekhaben and her child were compelled to

stay along with her mother as her dependent. Rekhaben

belongs to such a community where customary divorce

has been recognized and accordingly with the intervention

of the elder members of the family, the customary divorce

of Rekhaben and her husband had taken place. The

customary divorce was declared on Stamp Paper of

C/SCA/1871/2021 ORDER DATED: 22/12/2021

Rs.100/- which was executed on 15.12.2008. Thereafter,

Rekhaben and her child were staying with her mother and

was dependent for financial support from her mother. The

mother of Rekhaben expired on 27.06.2013.

3. After the death of her mother, Rekhaben had

approached the railway authority and had requested to

grant her family pension since she is divorced daughter of

the pensioner. However, the railway authorities informed

Rekhaben that customary divorce was not valid and asked

her to obtain proper decree of divorce from the competent

Court. Accordingly, Rekhaben filed for divorce petition

under Section 13 of the Hindu Marriage Act being HMP No.

10 of 2005 before the Court of Principal Senior Civil Judge

at Dahod. The said petition of Rekhaben was allowed and

the marriage with her husband - Maheshbhai Kalubhai

Baria was declared as dissolved vide order dated

29.04.2016 by the Principal Senior Civil Judge at Dahod.

Thereafter, as mentioned hereinabove, Rekhaben made

representation and thereafter she approached the Central

Administrative Tribunal, Ahmedabad. The Tribunal,

considered the Original Application No. 255 of 2020 filed

C/SCA/1871/2021 ORDER DATED: 22/12/2021

by Rekhaben - respondent herein and has also considered

the judgment of this Court in the case of Union of India V/s

Mayuriben Jani D/o Durgeshbhai Nandlal Jani dated

17.02.2020 and has allowed the Original Application No.

255 of 2020 vide order dated 22.10.2020.

4. We have heard Ms. Archana Amin, learned advocate

for the petitioner - Union of India. She has submitted that

in view of Rule 75 of the Family Pension Scheme for

Railway Servants, 1964 the respondent herein Rekhaben

is not entitled to get family pension since she is a divorced

daughter. She further submitted that the order passed by

the Central Administrative Tribunal is illegal and contrary

to the clarifications given vide letter dated 29.10.2013 and

therefore the order requires to be quashed and set aside.

She has also submitted that the widow of the retired

employee was getting pension till 27.06.2013 i.e. till the

death whereas the first application for family pension was

made on 10.04.2018 and therefore on the ground of delay

itself the Tribunal ought not to have entertained Original

Application. It is also contended that at the time of death

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of the pensioner, the respondent Rekhaben was not

fulfilling the condition of family pension as she has

obtained the decree for divorce on 29.04.2016 and as per

the Administrative requirement as mentioned in O.M.

dated 19.07.2017 as well as letter dated 23.08.2017 of the

Railway Board is not fulfilled. She has also submitted that

the learned Tribunal has not properly appreciated the Rule

54 sub rule 6 (iii) of C.C.S. (Pension) Rules, 1972 which

clearly provides that the family pension is payable to

unmarried/widowed/divorced daughter until she gets

married or remarried or until she starts earning her

livelihood whichever is earlier. She has also submitted that

the learned Tribunal has erred in relying upon the order of

this Court dated 17.02.2020 in the case of Union of India

V/s Mayuriben Jani as the facts of both the cases are

different and therefore she has prayed to allow the

present petition as learned Tribunal has erred in grating

the application filed by the present respondent.

5. The respondent was served by notice and has

appeared through Ms. Sunita Chaturvedi, learned

C/SCA/1871/2021 ORDER DATED: 22/12/2021

advocate for the respondent and has also filed affidavit.

Ms. Chaturvedi, learned advocate for the respondent has

submitted that the learned Central Administrative Tribunal

has rightly considered the case of the present respondent

and has passed legal and just order after considering the

documentary evidence as well as the various circulars of

the Railway Board. She has also submitted that the order

passed by the railway authorities on 24.11.2009 by which

the family pension is denied is not a speaking order and it

only says that the respondent Rekhaben is not fulfilling

the eligibility criteria. She has further submitted that the

learned Tribunal has rightly adopted the view taken by the

Bombay Highcourt in W. P. No. 6884 of 2016 decided on

03.04.2018 wherein it is held that RBE/O.M. stipulates the

intention of Railway not to leave destitute women without

any means of livelihood and directed to grant family

pension to the daughter whose divorce took place by way

of customary divorce and held that said application was

dependent of deceased railway employee. She has also

submitted that the learned lower court at Dahod has

declared the marriage of Rekhaben with her husband

C/SCA/1871/2021 ORDER DATED: 22/12/2021

Maheshbhai Baria as dissolved and therefore the order

passed by the learned Tribunal is just and proper and does

not call for any interference by this Court.

6. In response to the affidavit-in-reply filed by the

respondent, the petitioner through its Deputy Chief

Material Manager, Western Railway has filed additional

affidavit by mainly re-iterating Rule 75 of the Railway

Services (Pension) Rules and contented that Rule 75 (6)

(iii) provides that family pension is payable to a divorced

daughter until she gets married or remarried or until she

starts earning her livelihood, whichever is earlier. In

furtherance to that it is averred in additional affidavit that

the Mamlatdar Office, Dahod has issued an income

certificate in favour of the present respondent wherein it is

clearly mentioned that annual income of the respondent

from all the sources is Rs.95000/- per annum. It is further

submitted that Department of Pension and Pensioners

Welfare, Ministry of Personnel, Public Grievances and

Pensions, Government of India has issued an Office

Memorandum dated 30.08.2004 providing eligibility of

C/SCA/1871/2021 ORDER DATED: 22/12/2021

divorced/widowed daughter for grant of family pension. It

is clearly mentioned therein that as per clauses (ii) and

(iii) of sub-rule (6) of Rule 54 of the C.C.S. (Pension)

Rules, 1972 read with clause (b) of Department's O.M.

45/86/97-P&PW (A) Part I dated 27.10.1997 by which son

and daughter including widowed/divorced daughter shall

be eligible for grant of family pension till she/he attains

the age of 25 years or upto the date of her/his

marriage/remarriage, whichever is earlier (subject to

income criteria to be notified separately). Reliance is also

placed on Office Memorandum dated 30.08.2004 by which

income criteria is mentioned which provides that

son/daughter (including widowed/divorced daughter) shall

not have an income exceeding Rs.2550/- per month from

employment in Government, private sector, self

employment etc. It is submitted that since the present

respondent is earning Rs.7917/- per month as per the

certificate issued by the Mamlatdar, respondent is not

entitled to get the benefit.

7. During the course of hearing the respondent learned

advocate Ms. Chaturvedi has produced the circular dated

C/SCA/1871/2021 ORDER DATED: 22/12/2021

23.08.2019 numbered as RBA No. 72/2019 issued by the

Railway Board for simplification of procedure for grant of

Family Pension in Railways which stipulates the

dependency criteria for the purpose of family pension shall

be the minimum pension along with Dearness relief

thereof and in pursuance of Government's decision on

recommendation of the 7th C.P.C., minimum family pension

w.e.f. 01.01.2016 is Rs.9000/- per month and therefore

dependency criteria for the purpose of considering

entitlement for family pension shall be Rs.9000/- per

month and dearness relief thereon. This document is

produced only on the record of the present petition during

the course of hearing by the learned advocate for the

respondent and a copy of which is also provided to Ms.

Archana Amin, learned advocate for the petitioner and

after verifying the same from the concerned officer, Ms.

Archana Amin, learned advocate for the petitioner has

very fairly submitted that in view of this document dated

23.08.2019 issued by Railway Board the case of the

present respondent is likely to be covered for the

consideration of family pension as income criteria is

C/SCA/1871/2021 ORDER DATED: 22/12/2021

Rs.9000/- per month as respondent is earning Rs.7917/-

per month as per the income certificate issued by the

Mamlatdar, Dahod.

8. We have considered the above mentioned document

dated 23.08.2019 in addition to the material available on

record fo the present petition and heard learned

advocates for both the sides and found that the Family

Pension Scheme for Railway Servants, 1964 and

particularly the Rule 75 (6) (iii) of the C.C.S. (Pension)

Rules, 1972 provides that subject to second and third

provisos, in the case of an unmarried or widowed or

divorced daughter, until she gets married or until she

starts earning her livelihood, whichever is earlier. We have

also considered the fact that present respondent is staying

with her mother as she got customary divorce and

thereafter she also obtained the decree of divorce from

the competent Civil Court in the year 2016.

9. The Central Administrative Tribunal has rightly relied

upon the judgment renderred in the case of Union of India

C/SCA/1871/2021 ORDER DATED: 22/12/2021

V/s Mayuriben Jani D/o Durgeshbhai Nandlal Jani dated

17.02.2020 which reads as under:-

15. The provision of Rule 75 of the Family Pension Rules, in fact, is a benevolent piece of subordinate legislation and therefore it needs to be governed by the principles which required to be pressed into service for extending the benefit of the family pension to those who are in need thereof, as it is intended to benefit those family members who needs support. Bearing this proposition of law in mind, if one examines Rule 75 which is also in pari-materia with Rule 54 of the said Rules, would indicate that the family pension is available to the divorced daughter. The Rule does not recognized any further or other requirement to be eligible for receiving the family pension. The device in the form of guideline developed by the authorities and incorporated in Office Memorandum are, therefore, to be viewed as only facilitating tools to assess gauge and examine the cases of the divorced daughter to receive family pension on the basis of the eligibility. When the factum of customary divorce is well recognized by the provision of the Hindu Marriage Act with special emphasis upon Section 29(2), then perhaps rightly the author of Rule 54

C/SCA/1871/2021 ORDER DATED: 22/12/2021

and/or Rule 75 have not thought it fit to qualify the word "divorced daughter" by making it conditional that the divorce has to be declared by the competent Court, else it would perhaps amounted to improve upon the provision of Hindu Marriage Act, which unequivocally recognizes the customary divorce as a valid divorce provided the same is permissible under the community and the circumstances. The question, therefore, arises as to whether the respondents in the instant case, were having any justification to insist upon the divorce decree from the competent Court and were they justified in declining to act upon the customary divorce factum which have remain unchallenged before the authority and which have been recorded by the Tribunal in its orders at length and elaborately. Section 29(2) of the Hindu Marriage Act, read as under:

"Section 29(2):- Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act."

16. In other words, it can well be said that when the factum of

C/SCA/1871/2021 ORDER DATED: 22/12/2021

customary divorce in both the cases have not been challenged by the authorities. Their insistence for divorce decree only from the competent Court indicating valid dissolution of marriage would not be justified. The Court hasten to add here that this proposition on the valid premise that there exists no dispute qua customary divorce, in other words, the factum of applicants having a valid customary divorce deed when not under challenge and has accepted, then its mere authentication in the from of dissolution of marriage by the decree of the competent Court, in our view, would be improving the provision of the Hindu Marriage Act without any authority of law and the benefit, therefore, which are enuring under Rule 54 and Rule 75 when it is not qualified in any other manner would have to be accorded to the divorced daughter also.

17. As Bombay High Court has observed rightly in its judgment the important factor is the family in which the daughter is residing when the pensioner/recipient of the family pension dies. When the said factum has not been disputed in both the cases and when it is clearly recorded by the Tribunal as a fact that both the applicants were residing with the pensioner/recipient of the family pension, then the insistence for

C/SCA/1871/2021 ORDER DATED: 22/12/2021

dissolution of marriage by the competent Court only by way of decree, in our view, was not justified.

19. The petitioners are directed to see to it that the family pensions are accorded to the respondents from the date when they are entitled as per Rule 75 of the Rules and the payment be made on that basis as expeditiously as possible preferably within a period of 90 days from the date of receipt of copy of this order.

10. The factum is also not in dispute that the respondent

Rekhaben had valid customary divorce deed by which the

customary divorce had taken place in the year 2008. It

also transpires that the competent Civil Court has passed

order for granting decree for divorce to the respondent. I

11. In view of the provisions of Rule 75 of Family Pension

Scheme for Railway Servants, 1964 and more particularly

in view of the communication dated 23.08.2019 issued by

the Joint Director of Accounts, Railway Board pertains to

simplification of procedure for grant of family pension in

railways whereby the dependency criteria for the purpose

C/SCA/1871/2021 ORDER DATED: 22/12/2021