Orissa High Court
Smt. Lilima Behera vs State Of Orissa .... Opposite Party on 5 February, 2025
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.7549 of 2024
An application under Articles 226 & 227 of the
Constitution of India.
Smt. Lilima Behera .... Petitioner
Mr. Amit Kumar Das, Advocate
-versus-
State of Orissa .... Opposite Party
Mr. M.R. Mohanty, A.G.A.
CORAM:
JUSTICE A.K. MOHAPATRA
_____________________________________________________
Date of hearing and Judgment: 05.02.2025
______________________________________________________
A.K. Mohapatra, J. :
1. Heard learned counsel for the Petitioner as well as learned
Additional Government Advocate for the State-Opposite Party.
Perused the pleadings of the respective parties as well as
documents annexed thereto.
2. The Petitioner has filed the present writ application
with the following prayer:
"It is, therefore, humbly prayed that this
Hon'ble court may graciously be pleased to: -
a) Allow this Writ petition, issue Rule Nisi
calling upon the Opp. Party to show cause as
to why the Petitioner shall not receive pension
of Late Uttam Behera and direct the O.P to
change the change the nomination in favour of
petitioner's husband, Sri Sanjay Kumar Behera
for acceptance as nominee to receive family
pension of deceased Sri Uttam Behera of the
within a time period as fixed by this Hon'ble
Court.
b) And pass any other order/orders,
direction/directions which this Honourable
Court may deem fit and proper in the
circumstances of this case,"
3. The present writ application has been filed by the
Petitioner with a prayer for a direction to the Opposite Parties to
pay the disabled family pension in favour of her husband, namely
Shri Sanjay Kumar Behera, who happens to be the disabled son of
the deceased government employee, namely Late Uttam Behera,
after accepting the husband of the Petitioner as a nominee to
receive the family pension of the deceased-government employee,
viz., Late Uttam Behera.
4. The case of the Petitioner in a nutshell is that the husband
of the present Petitioner is a disabled son of one Late Uttam
Behera who was engaged in the office of the Special Relief
Commissioner, Govt. of Odisha as a Lunch Driver. On attaining
the age of superannuation, Late Uttam Behera retired from
government service w.e.f. 30.06.1994. Thereafter, the government
employee was receiving pension till his death on 22.02.2022. The
pleadings further reveal that the wife of the above named
government employee has pre-deceased the government
employee on 22.01.2010. After the death of the said Late Uttam
Behera, his son, i.e. the husband of the present Petitioner, applied
for grant of family pension on the ground that he is a disabled son
of the deceased-government employee. It further appears that the
husband of the present Petitioner, being a disabled child, was
entirely dependant on his father for his bread and butter and for
the survival of his own family, including the present Petitioner.
Since, the Petitioner is eligible to get family pension, he had
submitted an application before the sole Opposite Party on
28.10.2022. Such application has been rejected by the Opposite
Party vide letter dated 23.11.2023. It is in this background that the
Petitioner has approached this Court by filing the present writ
application.
5. Learned counsel for the Petitioner at the outset contended
that in view of Rule 56(5) of the OCS (Pension) Rules, 1992, the
Petitioner is eligible to get family pension. Accordingly, after the
death of the government employee, the Petitioner submitted his
application for grant of family pension on 28.10.2022 under
Annexure-5 to the writ petition. He further contended that the
application for grant of family pension was also submitted
keeping in view the notification of the State Government dated
23.07.2011 under Annexure-3 to the writ petition. Further,
referring to the said notification, learned counsel for the Petitioner
submitted that such notification covers the disabled children of
the pensioner for receiving family pension under Rule 56(5)(e) of
the OCS (Pension) Rules: "disabled son is eligible to get family
pension after the death of the pensioner". In such view of the
matter, learned counsel for the Petitioner submitted that there is
no dispute with regard to the entitlement of the husband of the
Petitioner to get family pension after the death of his father.
6. Learned counsel for the Petitioner further referring to the
impugned rejection order under Annexure-5 to the writ petition,
contended that the Opposite Party has rejected the claim of the
Petitioner on the ground that the deceased-government
employee/pensioner, in his pension paper, has not mentioned
regarding the entire disability of his son, namely, Shri Sanjay
Kumar Behera, i.e. the husband of the present Petitioner. Further,
the impugned order reveals that the application has also been
rejected on the ground that the certificate, issued on 03.12.2020,
which was produced before the authority to establish the mental
disability of the husband of the Petitioner wherein it has been
assessed that the husband of the Petitioner is having 70% mental
disability. The impugned order further reveals that although the
husband of the Petitioner was born on 16.05.1974, however, a
disability certificate was issued only on 03.12.2020. lastly,
referring to the aforesaid impugned order and the grounds of
rejection stated therein, the learned counsel for the Petitioner
contended that the grounds of rejection are highly arbitrary and
unsustainable in law. Moreover, the same has also not been
passed in conformity with the Rule 56 of the OCS (Pension)
Rules as well as the notification of the State Government as
referred to hereinabove.
7. Learned Additional Government Advocate appearing for
the State-Opposite Party, on the other hand, supported the
impugned rejection order dated 23.11.2023 under Annexure-5 to
the writ petition. He further contended that while scrutinizing the
application of the Petitioner for grant of family pension, it was
detected that his name was not mentioned by the deceased-
government employee in the pension paper. He further contended
that although the Petitioner was born in the year 1974, however, a
disability certificate was obtained only in the year 2020. Learned
counsel for the State further submitted that the fact with regard to
the mental disability of the husband of the present Petitioner was
never disclosed to the authorities till such time the Petitioner filed
an application seeking family pension. Further, referring to the
counter affidavit, learned counsel for the State submitted that the
grounds of rejection in the impugned order are fully justified and
supported by sound reasons in the counter affidavit. On such
grounds, learned counsel for the State submitted that the Opposite
Party has not committed any illegality in rejecting the claim of the
Petitioner under Annexure-5 to the writ petition.
8. Having heard the learned counsels appearing for the
respective parties, on a careful examination of their submissions,
further, on a scrutiny of the pleadings of the respective parties as
well as the documents filed along with the pleadings, this Court
observes that the only issue which is required to be adjudicated in
the present writ petition is whether the husband of the Petitioner
is entitled to get family pension under Rule 56(5)€of the OCS
(Pension) Rules, 1992?
9. So far as, the factual background of the present case is
concerned, this Court observes that there is no dispute with regard
to the fact that Late Uttam Behera, the deceased-government
employee, had retired from service on 30.06.1994 while he was
working as a Lunch Driver under the Special Relief
Commissioner, Govt. of Odisha. It is also not disputed that Late
Uttam Behera was receiving pensionary benefits till the date of
his death on 22.02.2022. Therefore the only question, which is
required to be adjudicated at this juncture is as to whether the
husband of the Petitioner is entitled to get the family pension after
the death of his father (ex-government employee) on 22.02.2022.
10. On perusal of the records, it appears that a disability
certificate has been produced before the authorities by the
husband of the present Petitioner. The said disability certificate
under Annexure-1 to the writ petition reveals that the same has
been issued by the Medical Authority duly notified by the
Department of Empowerment of Persons with Disability, Ministry
of Social Justice and Empowerment, Government of India. On
perusal of the said certificate, it is further revealed that the
husband of the Petitioner was suffering from mental illness, i.e.
chronic schizophrenia and accordingly he has been assessed to be
70% disable in terms of the RPWD Act, 2016. In the counter
affidavit, the content of the disability certificate and the issuing
authority has not been disputed. The only ground that has been
taken by the Opposite Party is that such certificate was obtained
only on 03.12.2020. In view of the aforesaid position, this Court
has no hesitation in arriving at a conclusion that the husband of
the present Petitioner, namely Shri Sanjay Kumar Behera is
mentally ill and as such he is a person with disability under the
RPWD Act, 2016 and the percentage of disability is 70% as
indicated in the certificate under Annexure-1 to the writ petition.
Therefore, it stands established that the husband of the present
Petitioner is a disabled person.
11. With regard to the entitlement of the family pension of the
husband of the present Petitioner, this Court is required to analyze
the provisions contained in Rule 56(5) of the OCS (Pension)
Rules, 1992. The relevant provisions of Rule 56(5) of the OCS
(Pension) Rules, 1992, that relate to the case of the Petitioner's
husband, i.e. Rule 56(5)(e) is quoted herein below;
"In the case of widowed / divorced / disabled
widowed / disabled divorced daughters even after
attaining the age of twenty five years till their remarriage
or death whichever is earlier subject to the condition that
in case of divorced daughters / disabled divorced
daughter, the divorce is valid in law and the case of
widowed / disabled widowed daughter, the family
pension for life from the date of death of her husband and
there is no 43 other eligible unmarried daughter beyond
the age of twenty five years and disabled son / disabled
unmarried daughter to receive the family pension. The
benefit of family pension for life shall be admissible to
the widowed / divorced daughter only after cessation of
the claim of disabled widowed / disabled divorced
daughter. The other conditions governing grant of family
pension to the unmarried daughters as specified in clause
(d) shall also be applicable in the case of widowed /
disabled widowed / disabled divorced daughters for
grant of family pension in their favour.
Provided that if the son or unmarried
daughter including widowed/divorced daughter
of a Government servant is suffering from any
disorder or disabled of mind or is physically
crippled or disabled so as to render him or her,
unable to earn a living even after attaining the
age of twenty five years, the family pension shall
be paid to such son or unmarried daughter for
life subject to the following conditions namely -
(i) if such son or unmarried daughter is
one among two or more children of the
Government servant/pensioner, the family
pension shall be initially payable to the children
in the order set out in clause (c) of Sub rule(7)
hereinafter until the last child attains the age of
twenty five years and thereafter the family
pension shall be resumed in favour of the son or
unmarried daughter suffering from disorder or
disability of mind or who is physically crippled
or disabled and shall also be admissible in the
case of disabled widowed, disabled divorced
daughter of a Government servant/ pensioner in
case there is no other disabled son/disabled
unmarried daughter and eligible unmarried
daughter.
(ii) if there are more than one such son or
unmarried daughter suffering from disorder or
disability of mind or who are physically crippled
or disabled the family pension shall be paid in
order of their birth and the younger of them will
get the family pension only after the elder next
above him/her ceases to be eligible."
12. On perusal of the aforesaid provision, it appears that the
son and daughter of the deceased-government
employee/pensioner is entitled to the family pension. So far as,
the son is concerned, the same has been restricted till he attains
the age of 25 years and in case of unmarried daughter up to the
age of 25 years or till she gets married. Rule 56(5)(e) of the OCS
(Pension) Rules provides that disabled son and daughter are
entitled to get family pension. Keeping in view the provision
contained in Rule 56(5)(e) of the OCS (Pension) Rules, it appears
that the Opposite Party, while rejecting the claim of the husband
of the Petitioner under Annexure-5, has failed to apply the said
provision to the facts of the present case.
13. On a careful scrutiny of the impugned rejection order
under Annexure-5, this Court observes that the application of the
Petitioner has been rejected on some vague and untenable
grounds. The ground of rejection, i.e. the fact that the mental
disability of the husband of the Petitioner was not mentioned in
the pension paper, is hardly a reasonable ground to reject the
application of the husband of the Petitioner. Moreover, the other
ground of rejection, that the disability certificate was produced on
03.12.2020, is equally absurd and unacceptable in law. A close
scrutiny of the provisions contained in Rule 56 of OCS (Pension)
Rules, 1992, it doesn't appears that there is any requirement of
any disclosure or the grounds of rejection are required to be
complied.
14. Therefore, on a careful analysis of the factual as well as
legal background of the present case, this Court is of the view that
the Opposite Party has committed an illegality in rejecting the
claim of the Petitioner under Annexure-5 vide order dated
23.11.2023 and such grounds of rejection are not supported by the
provisions laid down in Rule 56 of the Rules, 1992. Accordingly,
this Court has no hesitation in setting aside the order dated
23.11.2023 under Annexure-5 to the writ petition. Accordingly,
the same is hereby set aside. It is further directed that on
communication of a copy of the judgment, the Opposite Party
shall do well to sanction and disburse the family pension as is due
and admissible to the husband of the Petitioner within a period of
eight weeks from the date of receiving of a copy of today's order.
Further, it is clarified that in the event, the husband of the
Petitioner is unable to attend the office or make any application,
then the Opposite Party shall permit the Petitioner, who is the
legally married wife of Shri Sanjay Kumar Behera (the son of the
deceased government employee), to submit any papers and to
receive the amount on behalf of her husband Shri Sanjay Kumar
Behera as a legal guardian in terms of Rule 56. Payment of family
pension shall be subject to fulfillment of other conditions of Rule
56 of OCS (Pension) Rules, 1992.
15. With the aforesaid observations/directions, the writ
petition stands allowed.
(Aditya Kumar Mohapatra)
Judge
Orissa High Court, Cuttack
The 05th February, 2025/ S.K. Rout, Jr. Stenographer
Location: High Court of Orissa, Cuttack
Date: 17-Feb-2025 11:10:58
