Punjab-Haryana High Court
Surinder Kaur vs State Of Punjab And Others on 7 November, 2023
Neutral Citation No:=2023:PHHC:141609
2023:PHHC:141609
CWP-21472-2020 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
112 CWP-21472-2020
Date of Decision: 07.11.2023
Surinder Kaur ...Petitioner
Versus
State of Punjab and Others ...Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present:- None for the petitioner
Mr. Inderpreet Singh Kang, AAG, Punjab
***
JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition under Articles 226/227 of the
Constitution of India is seeking direction to respondents to release family pension to
the petitioner.
2. On 05.08.1993, the husband of the petitioner was appointed as SPO by
Punjab Police and later on was absorbed by the department. His services were
regularized in 1995. On 07.02.2000, the husband of the petitioner passed away. The
respondent-department granted family pension to the petitioner. The petitioner
solemnized Kareva marriage with his brother-in-law (Devar) on 17.02.2002 and
started staying with all other family members which included children from her
earlier wedlock. On the request of the petitioner, the family pension was transferred
in the name of son of the petitioner. The man with whom the petitioner solemnized
second marriage also passed away on 02.10.2007 and petitioner requested the
respondent-department to restore her family pension. The respondent-department
denied family pension to the petitioner because she got re-married and stopped of
her son because he got job.
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3. A Division Bench of this Court in Smt. Balwant Kaur and Another v.
State of Punjab and Another, decided on 23.04.2008 as well as Single Bench of
this Court in Amrit Kaur @ Paramjit Kaur v. State of Punjab and Others, 2014 (2)
PLR 192 interpreting the rule in question has extended benefit of family pension to
widow of a deceased employee though said lady solemnized marriage with his
brother-in-law. The relevant extracts of the judgment in Amrit Kaur (supra) read as:
"3. Counsel for the petitioner has relied upon a Division Bench
decision of this Court in Smt Balwant Kaur v. State of Punjab,
decided on 23.4.2008, wherein it was held as follows:--
"The short question that arises in this petition is whether the
family pension of a widow, who has contracted a second
marriage with the younger brother of her deceased husband,
can be stopped and whether the recovery of the family
pension, which has already been paid, can be effected from
her. In this regard it would be relevant to reproduce rule
8.35 of the Punjab Civil Service Rules Vol. 2, Chapter VIII,
which is as under:--
'8.35 (1) A family pension will take effect, from the day
following the death of the Government employee or from
such other date as the competent authority may decide.
(2) A family pension will ordinarily be tenable-
(a)(i) in the case of widow or mother until death or
remarriage whichever occurs earlier.
(ii) in the case of a minor son, or minor brother, until he
attains the age of 18;
(iii) in the case of an unmarried daughter or minor sister,
until marriage or until she attains the age of 21, whichever
occurs earlier.
(iv) in the case of a father, for life.
(b) Notwithstanding anything contained in sub-clause--
(a) a widow who re-marries her deceased husband's brother
and continues to life a communal life with or contributes to
the support of other dependents of her deceased husband
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shall not be disqualified for the grant of extraordinary
pension otherwise admissible to her under these rules.
Note 1.--A family pension granted to a posthumous child
should commence from the date of his/her birth and not from
the date of death of his/her father.
Note 2.--The family pension of a widow will cease on re-
marriage but when such re-marriage is annulled by divorce,
desertion or death of the second husband her pension may be
restored upon proof that she is in necessitious circumstances
and otherwise deserving.'
Clause 2(b) of rule 8.35 Punjab Civil Service Rules Vol. 2,
Chapter VIII clearly stipulates that a widow, who has
remarried her deceased husband's brother and continues to
live a communal life and contributes to the support of other
dependents of her deceased husband, shall not be
disqualified for the grant of extraordinary pension, otherwise
admissible to her under Civil Service Rules.
In the instant case, a perusal of Annexure R-2 written by the
petitioner to the Administrative Officer, Punjab Mandi Board
dated 25.07.2001 clearly shows that she has solemnized her
marriage with the younger brother of her deceased husband.
The petitioner is also supporting four children born out of
her wedlock with her deceased husband. Although, the
petitioner has averred in this writ petition that she has not
contracted a marriage with the brother of her deceased
husband and has only entered into an arrangement and
continues to live a communal life with the family of her
deceased husband, but this averment seems to be an
afterthought in order to protect her family pension. The
remarriage of a widow with the younger brother of her
deceased husband entitles her for the grant of family pension
in terms of rule 8.35(2)(b) of the Punjab Civil Service Rules
Vol. 2, Chapter VIII and hence, the order dated 04.01.2007
passed by the General Manager (Accounts) (Annexure P-1)
holding that petitioner is not entitled to family pension and
further ordering recovery from the petitioner for the amount
already paid to her as family pension, cannot be sustained.
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Resultantly we quash Annexure P-1 and hold that the
petitioner is entitled to family pension. We further hold that
the respondents are not entitled to recover the family pension
already paid to the petitioner."
(4) Counsel for the respondents states that she does not dispute the
proposition of law as laid down in Balwant kaur's case (supra), but
the petitioner had specifically given up her claim for family pension.
In my opinion, what the petitioner requested was for transfer of
family pension in favour of her minor children and now the children
are no more entitled for family pension, since the family pension is
otherwise payable to the petitioner, her prayer for transfer of family
pension in favour of her children cannot be treated as a waiver of
her right of claiming family pension for all times to come, more-so
when it is a beneficial provision. Resultantly, this writ petition is
allowed and the respondents are directed to release the family
pension to the petitioner with effect from the date her children were
disentitled for the same. Necessary disbursal be made within three
months from the receipt of a certified copy of this order failing which
the petitioner would be entitled to claim the same with interest @
8% pa from the date/s the amount/s fell down."
4. On being confronted with afore-cited judgments, learned State counsel
asserts that competent authority would reconsider case of the petitioner in terms of
the judgments.
5. In the wake of statement of learned State counsel and the afore-cited
judgments, the present petition stands disposed of with a direction to the
respondent-authorities to reconsider claim of the petitioner and pass an appropriate
order within three months from today.
(JAGMOHAN BANSAL)
JUDGE
07.11.2023
Mohit Kumar
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
Neutral Citation No:=2023:PHHC:141609
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