Tripura High Court
Mrs. Dipali Sarkar vs The Union Of India on 14 March, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
HIGH COURT OF TRIPURA
AGARTALA
WP(C) 531 of 2023
Mrs. Dipali Sarkar,
W/o late Swapan Sarkar
M/o late Sudip Sarkar,
Constable 169th Battalion, BSF
Resident of Dhaleswar, Road No.18, PS- East Agartala,
District- West Tripura, PIN: 799285 aged at 63 years.
---Petitioner(s)
Versus
1. The Union of India
Represented by its Secretary, Department of Home Affairs, Government of India,
Having his office at South Block, New Delhi, PIN; 110001
2. The Commissioner & Secretary,
Home Affairs Department, Government of Tripura,Having his office at Secretariat
Building, Pandit Nehru Complex, PO- Kunjaban, PS: New Capital Complex, Sub-
Division: Agartala, District: West Tripura, PIN: 799006
3. Commanding Officer, HQ 169 Battalion BSF, Raninagar, Jalpaiguri, District-
Jalpaiguri, West Bengal, PIN- 735133
4. Ajeet Kumar, Commandant, 169 Bn BSF, C/o 56 APO, PIN: 193222
5. Director General, Border Security Force, 10 CGO Complex, Lodhi Road, New Delhi,
PIN: 110003
----Official Respondents
6. Rumpa Sarkar, W/o Late Sudip Sarkar (deceased BSF Soldier)
7. Subhra Sarkar, D/o Late Sudip Sarkar (deceased BSF Soldier)
8. Atithi Sarkar, D/o Late Sudip Sarkar (deceased BSF Soldier)
---Private Respondent(s)
For Petitioner(s) : Mr. Somik Deb, Sr. Advocate.
Mr. P. Chakraborty, Advocate.
For Respondent(s) : Mr. B. Majumder, Deputy SGI.
Mr. T. Chakraborty, Advocate.
Date of hearing and date of
delivery of Judgment and Order : 14.03.2024.
Whether fit for reporting : Yes
HON'BLE MR. JUSTICE T. AMARNATH GOUD
Judgement & Order (Oral)
This is a petition under Article 226 of the Constitution of India for
seeking the following reliefs:
(i) Issue Rule calling upon the respondents and each one of them to show cause as to why a Writ
of Certiorari and/or in the nature thereof shall not be issued for transmitting the records lying
with the respondents for rendering substantive and conscionable justice to the petitioner;
(ii) Issue Rule calling upon the respondents and each one of them to show cause as to why a Writ
of Mandamus and/or in the nature thereof shall not be issued mandating/directing them not to
disburse further money in favour to the private respondent No.6 till the final disposal of this
writ petition.
(iii) Issue Rule calling upon the respondents and each one of them to show cause as to why a Writ
of Mandamus and/or in the nature thereof shall not be issued, mandating/directing them to
distribute the monetary & other benefits admissible to the Class-I legal heirs including the
petitioner in strict conformity with the statutory mandate, contained in Section 8 of the Hindu
succession Act, 1956
(iv) Issue Rule calling upon the respondents and each one of them to show cause as to why a Writ
of Prohibition and/or in the nature thereof shall not be issued for restraining/prohibiting the
official respondents from disbursing further money in favour of the private respondent No.6 till
the final disposal of this writ petition;
(v) In the Ad-interim and Interim to pass an Order in terms of relief (iv) supra;
(vi) Call for the records appertaining to this writ petition;
(vii) After hearing the parties be pleased to make the Rule absolute in terms of (i) to (iv) above;
(viii) Costs of and incidental to this proceeding
(ix) Any other relief(s) as to this Hon‟ble High Court may deem fit and proper.
[2] The case of the petitioner is that the petitioner is the mother of Late
Sudip Sarkar, a BSF Jawan of 169th Battalion, who laid down his life in Machal
Sector, Kupwara District, Jammu & Kashmir, on 08.11.2020 while he was serving as a
constable in 169th Battalion, BSF. On that day he received multiple bullets injuries
while fighting with the infiltrators. Late Sudip Sarkar use to maintain and take care of
his mother's livelihood from his salary. The Special Secretary, Government of Tripura
issued a Memorandum, thereby sanctioning Rs. 5,00,000 from the Chief Minister
Relief Fund, Tripura, and the said amount shall be placed to the Sub-Divisional
Magistrate, Sadar, West Tripura, for making payment of Rs.2,50,000 each was given to
the petitioner and the daughter-in-law respectively.
[3] Thereafter, the Commandant, disbursed a sum of Rs. 10,00,000 to the
account of the petitioner, on account of 'Bharat Ke Veer Fund' through bank transfer.
After his death, his widow promised to maintain his mother only on the condition that
the petitioner has to give a sum of Rs. 10,00,000 only to the widow in order to buy an
expensive flat. The petitioner paid a sum of Rs.2,00,000 only to the widow and waived
off Rs.1,50,000 only which in debt to the widow. The petitioner spent a sum of Rs.
3,50,000 out of Rs. 10,00,000/- on the widow. Thereafter, the daughter-in-law refused
to maintain the petitioner and has been living separately. The daughter-in-law
demanded the rest of the money which is Rs.8,00,000. Thereafter, the petitioner came
to know that, an approximate sum of Rs. 1.45 Crore was given to the daughter-in-law
from various financial institutions as petitioner's late son made daughter-in-law the
nominee for his leftover assets/dividends. The petitioner craved for equal distribution
of the approximate sum of Rs. 1.45 Crore among the legal heirs of the deceased. Hence
the present writ petition.
[4] On the contrary, Mr. B. Majumder, learned Deputy SGI appearing for the
respondents No. 1, 3, 4, & 5 submitted before this court that as per Rule 50(1) of the
Central Civil [Pension] Rules, 1972 as well new Rule of 2021, the widow of the
deceased is entitled to the family pension in order of preference for admissibility of
family to the family members. As such the benefit/family pension have been released
in favour of widow of the deceased i.e. Smt. Rumpa Sarkar. Moreover, on the
representation dated Nil submitted by the petitioner to the DG BSF regarding payment
of financial benefits a sum of Rs.10,00,000.00 (Rupees Ten lac) only were released in
favour of the petitioner by HQ DG BSF in Saving Account of the petitioner through
CBS on the account of „Bharat Ke Veer Fund‟ on 24.03.2021 being a welfare measure
to the parent of a BSF Martyr.
[5] To support his contention, Mr. B. Majumder, learned Deputy SGI has
relied on a judgment of the apex court in Nitu vs. Sheela Rani and Others reported in
(2016) 16 SCC 229 where the apex court has observed as follows:
"17. It is pertinent to note that in this case the pension is to be given under the
provisions of the Scheme and therefore, only the person who is entitled to get
the pension as per the Scheme would get it. Similar issue had arisen before
this Court in the case of Violet Issaac (Smt.) v. Union of India (1991) 1 SCC
725 and after considering the relevant provisions, this Court came to the
conclusion that family pension does not form part of the estate of the deceased
and therefore, even an employee has no right to dispose of the same in his will
by giving a direction that someone other than the one who is entitled to it,
should be given the same. In the instant case, as per the provisions of the
Scheme, the appellant widow is the only family member who is entitled to the
pension and therefore, the respondent mother would not get any right in the
pension. Of course, it cannot be disputed that if there are other assets left by
late Shri Yash Pal, the respondent mother would get 50% share, if late Shri
Yash Pal had not prepared any Will and it appears that late Shri Yash Pal had
died intestate and no Will had been executed by him."
[6] Mr. T. Chakraborty, learned counsel appearing for the respondents no. 6,
7 & 8 submitted that the writ petition is not maintainable before this Court as none of
the fundamental, legal or statutory rights of the petitioner have been violated in the
instant case. It is further stated by Mr. Chakraborty, learned counsel that the petitioner
is not solely dependent upon the income of the deceased soldier. She herself is a
pensioner getting approximately Rs.5000/- per month after the death of her husband
who was a Government employee alongwith old age allowance amounting to Rs.2000/-
i.e. Rs.7000/- in total. He further contended that the claim sought by the petitioner is
covered by Hindu Marriage Act which is not applicable to the present case in hand and
prayed for dismissing the writ petition.
[7] To deal with the case, it is apposite to extract herein below the Rules 50,
51, 52 and 53 of the Central Civil Services (Pension) Rules, 1972.
50. Death-cum-retirement gratuity.
(1) (a) A Government servant, who has completed five years' qualifying service and has
become eligible for service gratuity or pension under rule 49, shall on his retirement,
be granted death-cum-retirement gratuity equal to one-fourth of his emoluments for
each completed six monthly period of qualifying service, subject to 16 ½ times the
emoluments,
(b) 1f a Government servant dies, while in service after completing five years'
qualifying service, the amount of death-cum-retirement gratuity shall be equal to 12
times of his emoluments or the amount determined under clause (a), whichever is
higher and it shall be paid to his family in the manner indicated in sub-rule (1) of rule
51 :
Provided that the amount of death-cum-retirement gratuity payable under this rule
shall, in no case exceed thirty thousand rupees.
(2) If a Government servant, who has become eligible for a service gratuity or pension; dies
within five years from the date of his retirement from service including compulsory retirement
as a penalty and the sums actually received by him at the time
of his death on account of such gratuity or pension including ad hoc increase, if any, together
with the death-cum-retirement gratuity admissible under sub-rule (1) and the commuted value
of any portion of pension commuted by him are less than the amount equal to 12 times of his
emoluments; a residuary gratuity equal to the deficiency may be granted to his family in the,
manner indicated in sub-rule (1) of rule 5l.
(3) (a) If a Government servant dies in the first year of qualifying service, a death-cum-
retirement gratuity equal to two times of his emoluments at the time of his death shall be
paid to his family in the manner indicated in sub-rule (1) of rule 51.
(b) If a Government servant dies after completion of one year of qualifying service but
before completing five years of qualifying service the amount of death-cum-retirement
gratuity shall be equal to six times of the emoluments.
(4) (a) In the case of a Government servant to whom rule 54 applies, a contribution of an
amount equal to two months emoluments or five thousand rupees, whichever is less,
shall be recovered out of the death-cum-retirement gratuity.
Provided that where the average emoluments are treated as emoluments under sub-rule
(5), the amount of contribution shall be determined reference to such average
emoluments:
Provided further that no recovery death-cum-retirement gratuity for contribution
towards the family pension shall be made in the case of a Government servant retiring
from service on or after 22nd September, 1977.
(b) No such recovery shall be made out of the death-cum-retirement gratuity payable servant-
(i) who retires before earning a pension, or
(ii) who at the time of death while in service or the time of retirement, was an unmarried
Government servant or was a widower or a widow and had no child or children.
Explanation-In this sub-clause, "child" or children" includes legally adopted child or children.
Or
(iii) in respect of whom contributory family pension is sanctioned under sub-rule (4) of
rule -54.
(5) The emoluments for the purpose of gratuity admissible under this rule shall be subject to a
maximum of two thousand and five hundred rupees per mensem, and shall be reckoned in
accordance with rule 33:
Provided that if the emoluments of a Government servant have been reduced during
the last three years of his service otherwise than as penalty, average emoluments as referred to
in rule 34 may, at the discretion of the pension -sanctioning authority, be treated as
emoluments.
(6) For the purpose of this rule and rules 51, 52 and 53 „family‟ in relation to a Government
servant, means-
(i) wife or wives including judicially separated wife or wives in the case of a male
Government servant,
(ii) husband including judicially separated husband in the case of a female
Government servant,
(iii) sons including step sons and adopted sons,
(iv) unmarried daughters, including step daughters and adopted daughters,
(v) widowed daughters including step daughters and adopted daughters,
(vi) father- including adoptive parents in the case of individuals whose personal low
permits adoption,
(vii) mother - including adoptive parents in the case of individuals whose personal low
permits adoption,
(viii) brothers below the age of eighteen years including step brothers,
(ix) Unmarried sisters and widowed sisters, including step sisters,
(x) Married daughters, and
(xi) children of a pre-deceased son,
51. Persons' to whom gratuity is payable.
(1) (a) The gratuity payable under rule 50 shall be paid to the person or persons on
whom the right to receive the gratuity is conferred by means' of nomination under
rule 53;
(b) If there is no such nomination or if the nomination made does not 'subsist, the
gratuity shall be paid in the manner indicated below:-
(i) if there are one or more surviving members of the family as in clauses (i), (ii) and
(iv) of sub-rule (6) of rule 50, to all such-members in equal shares;
(ii) if there are no such surviving members of the family as in sub-clause (i) above,
but there are one or more members as in clauses (v), (vi), (vii), (viii), (ix), (x) and
(xi) of sub-rule (6) of rule 50, to all such members in equal shares.
(2) If a Government servant dies after retirement without receiving the gratuity admissible
under sub-rule (I) of rule-50 the gratuity shall be disbursed to the family in the manner
indicated in sub-rule (I),
(3) The right of a female member of the family, or that of a brother, of a Government servant,
who dies while in service or after retirement to receive the share of gratuity shall not be
affected if the female member marries or re-marries, or the brother attains the age of eighteen
years, after the death of the Government servant and before receiving her or his share of the
gratuity.
(4) Where gratuity is granted under rule 50 to a minor member of the family of the deceased
Government servant, it shall be payable to the guardian on behalf of the minor.
52. Lapse of death-cum-retirement gratuity.
Where a Government servant dies while in service or after retirement without receiving the
amount of gratuity and leaves behind no family and-
(a) has made no nomination, or
(b) the nomination made does not subsist,
the amount of death-cum-retirement gratuity payable in respect of such Government servant
under rule 50 shall lapse to the Government.
53. Nominations.
(1) A Government servant shall, on his initial confirmation in a service or post, make a
nomination in Form 1 Or Form 2, as may be appropriate in the circumstances of the case,
conferring on one or more persons the right to receive the death-cum-retirement gratuity
payable under rule 50:
Provided that if at the time of making the nomination-
(i) the Government servant has a family, the nomination shall not be in favour of any
person or persons other than the members of his family; or
(ii) the Government servant has no family, the nomination may be made in favour of a
person or persons, or a body of individuals, whether incorporated or not.
(2) If a Government servant nominates more than one person under sub-rule (1), he shall
specify in the nomination the amount of share payable to each of the nominees in such manner
as to cover the entire amount of gratuity.
(3) A Government servant may provide in the nomination-
(i) that in respect of any specified nominee who predeceases the Government servant,
or who dies after the death of the Government servant but before receiving the
payment of gratuity, the right conferred on that nominee shall pass to such other
person as may be specified in the nomination:
Provided that if at the time of making the nomination the Government servant has a family
consisting of more than one member, the person so specified shall not be person other than a
member of his family:
Provided further that where a Government servant has only one member in his family, and a
nomination has been made in his favour, it is open to the Government servant to nominate
alternate nominee; or nominees in favour of any person or a body of individuals, whether
incorporated or not;
(ii) that the nomination shall become invalid in the event of the happening of the
contingency provided therein.
(4) The nomination made by a Government servant who has no family at the time or making it,
or the nomination made by a Government servant under the second proviso to clause (i) of
sub-rule (3) where he has only one member in his family shall become invalid in the .event of
the Government servant subsequently acquiring a family, or an additional member in the
family, as the case may be.
(5) A Government servant may, at any time, cancel a nomination by sending a notice in writing
to the authority mentioned in sub-rule (7):
Provided that he shall, along with such notice, send a fresh nomination made in accordance
with this rules.
(6) Immediately on the death of a nominee in respect of whom no special provision has been
made in the nomination under clause (i) or sub-rule (3) or under concurrence of any event by
reason of which the nomination becomes invalid in pursuance of clause (ii) of that sub-rule,
the Government servant shall send to the authority mentioned in sub-rule (7) a notice in
writing cancelling the nomination together with a fresh nomination made in accordance with
these rules.
(7) (a) Every nomination made (including every notice of cancellation, if any, given) by a
Government servant under this rule shall be sent-
(i) in case the Government is a permanent Gazetted Government servant other than a
Gazetted Government servant referred to in sub-rule (1) of rule 59, to the audit officer
concerned; and
(ii) in any other case, including that of a Gazetted Government servant referred to in
sub-rule (1) of rule 59, to the Head of Office.
(b) The Audit Officer or the Head of Office, as the case may be, shall, immediately on receipt
of the nomination referred to in clause (a), countersign it indicating the date of receipt and
keep it under his custody.
(c) (i) The Head of Office may authorise his subordinate Gazetted Officer to countersign the
nomination form of non-Gazetted Government servants.
(ii) suitable entries regarding receipt or nomination shall be made in the service book of
the non-Gazetted Government servant.
(8) Every nomination made and every notice of cancellation given by a Government servant
shall to the extent that it is valid take affect from the date on which it is received by the
authority mentioned in sub-rule(7).
[8] Having considered the submission as advanced by the counsel for the
parties and having perused the entire record, specifically the Rules 50, 51, 52 and 53 of
the Central Civil Services (Pension) Rules, 1972, this court is of the opinion that none
but the widower (the respondent No.6) is the nominee of the deceased soldier who is
eligible to get all the monetary benefits since her name is reflected in the nomination
form. In the nomination form under the Rules and also the Rules indicate the word
"Nominee" or "Nominees" that means it could be one person or more. In the instant
case, the deceased has only indicated the name of his wife as nominee. Thus giving
value to the will of deceased, this court feels it needs to be accepted the way it is and
needs no interpretation. Thus widow of the deceased soldier is nominee as per pension
papers. Moreover, the pension is to be given under the provisions of the Pension
Scheme and therefore, only the person who is entitled to get the pension as per the
Scheme would get it.
[9] The argument made by Mr. T. Chakraborty, learned counsel in reference
to the Hindu Marriage Act is not applicable to the case in hand. The petitioner has not
placed on record nor before the official-respondents any judgment & decree obtained
from competent court to say that the petitioner‟s case under Hindu Law as Class-I heir
can be considered. So far as the petitioner is concerned, though it does not fall under
the category of pension and further not to deprive the petitioner of any monetary
benefit, she has been given Rs. 10,00,000/- under Bharat Ke Veer Fund and the State
Government has also extended the financial benefit of Rs. 2,50,000/- to the petitioner
(Total Rs.12,50,000/-). It appears that the petitioner has not approached with clean
hands before this court and she has failed to make out her case. Hence, the instant writ
petition stands dismissed.
[10] As a sequel, stay, if any, stands vacated. Pending application(s), if any,
also stands closed.
JUDGE
Dipak
DIPAK DAS DIPAK DAS
Date: 2024.03.20
16:47:12 +05'30'
