SPA/1011/2017
2022 Latest Caselaw 2420 UK

             IN THE HIGH COURT OF UTTARAKHAND

                                  AT NAINITAL
                  THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI

                                          AND

                        THE HON'BLE SRI JUSTICE R.C. KHULBE


                    SPECIAL APPEAL NO. 1011 OF 2017

                             02ND AUGUST, 2022

BETWEEN:

Director General, C.P.W.D. & others                            .....Appellants.
And

Krishna Devi Uniyal & another                                  ....Respondents.

Counsel for the Appellants : Mr. Jitendra Chaudhary, learned counsel.

Counsel for the Respondent No.1 : Mr. Vikas Pande, learned counsel.

Counsel for the Respondent No.2 : Mr. Pankaj Chaturvedi, learned Standing Counsel.

The Court made the following:

JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)

Delay Condonation Application (CLMA No.15523 of 2017)

The submission of the learned counsel for the

appellants is that, in case the limitation is computed from the

date on which the application for correction of the impugned

judgment was disposed of, there is no delay in filing the

present special appeal, as the impugned judgment was

passed on 09.05.2017, which was corrected on the

application of the respondent-writ petitioner on 07.10.2017.

2. Learned counsel for the respondent-writ petitioner,

in the aforesaid, fairly does not oppose the delay condonation

application.

3. For the reasons stated in the affidavit filed in

support of the delay condonation application, the delay

condonation application is allowed, and the delay in filing the

present special appeal is, hereby, condoned.

Special Appeal No.1011 of 2017

4. The appellants have assailed the judgment dated

09.05.2017, passed in Writ Petition (S/S) No.1359 of 2016,

which was corrected on 07.10.2017.

5. Brief background of the relevant facts may be

noted. The respondent's husband retired from the services of

the appellants in the year 1965. He died in the year 1998.

During the thirty-three years period, after his retirement,

neither he was granted, nor he ever claimed pension. After

the husband of the respondent died, the respondent-writ

petition started staking a claim for family pension. The claim

for family pension was denied and, consequently, she filed a

writ petition being Writ Petition (S/S) No.97 of 2010. The

learned Single Judge, by order dated 25.07.2013, dismissed

the said writ petition on the ground of inordinate delay on the

part of the respondent-writ petitioner in approaching the

Court. She preferred special appeal being Special Appeal

No.322 of 2013, which too was dismissed on 27.11.2013. A

perusal of the order passed by the Division Bench shows that

the stand of the appellants that the respondent's husband

had not served even for fifteen years, let alone twenty years,

was taken into account. The order notes that the

respondent's husband had served only for 12 years 9 months

and 17 days, which was reckoned as 13 years in accordance

with the CCS Rules and, accordingly, in terms of the CCS

Rules, as were prevalent in the year 1965 when the husband

of the respondent retired, he was not entitled to any pension.

The Division Bench took note of the fact that the respondent's

husband, during the period of 33 years (wrongly typed as 23

years), after his retirement until his death, did not seek any

pension, obviously, as he knew that he was not entitled to

any such pension. The Division Bench, therefore, dismissed

the special appeal, not only on the ground of delay and

laches, but also on merits, while holding that since the

respondent's husband was not entitled to pension, she was

not entitled to family pension. The respondent then preferred

Special Leave to Appeal (CC) No(s).6139 of 2015 before the

Supreme Court. The same was disposed of on 06.04.2015

upon the respondent-writ petition making a statement that

she would prefer a representation. The authority was directed

to consider the representation within one month of it being

made. It appears that the appellants considered the

representation and, despite the fact that the respondent's

husband had not rendered the requisite pensionable service,

granted family pension to the respondent.

6. The aforesaid grant of family pension to the

respondent emboldened her, and now she has preferred the

writ petition, in question, wherein the impugned judgment

had been passed. She claimed interest on the arrears of

family pension. The learned Single Judge has allowed the said

claim by directing the appellants to pay interest on the

delayed payment of family pension to the respondent-writ

petition @9% per annum.

7. We have heard the learned counsels.

8. The submission of the learned counsel for the

appellants is that the claim for interest could not have been

made, as the grant of family pension was an act of sympathy

without any entitlement, and that being the position, the

respondent had no vested right to claim interest, since the

same was not granted by the appellants on their own.

9. On the other hand, Mr. Vikas Pande, learned

counsel for the respondent-writ petitioner has submitted that

family pension was sanctioned to the respondent not as a

matter of sympathy or compassion, but on account of her

entitlement.

10. Having heard the learned counsels, we are of the

view that the impugned judgment cannot be sustained in the

light of the findings written by the Division Bench in Special

Appeal No.322 of 2013, which have not been set-aside by the

Supreme Court. It cannot be accepted that the respondent-

writ petitioner was entitled to family pension as a matter of

right. It is clear that she was granted family pension, despite

the fact that her late husband had not rendered the requisite

pensionable service. It is, therefore, clear that the family

pension granted to the respondent-writ petition was an act of

sympathy, and compassion. Consequently, there was no

vested right in the respondent to claim interest on the arrears

of the family pension sanctioned in her favour.

11. For the aforesaid reason, we set-aside the

impugned order, and also dismiss the writ petition.

12. The special appeal stands disposed of accordingly.

13. Pending application, if any, also stands disposed of.

(VIPIN SANGHI, C.J.)

(R.C. KHULBE, J.) Dated: 02ND August, 2022 NISHANT