Calcutta High Court on Monday observed that family pension benefits cannot be extended to a widowed daughter who was married at the time of death of her father/mother. The bench noted that a daughter doesn’t possess any fundamental or statutory right to claim a family pension in such cases.
The matter was heard by a bench of Justice Harish Tandon and Justice Rabindranath Samanta. The High Court was examining the issue that whether a daughter of a pensioner who was married, but became widowed after the death of the pensioner is entitled to family pension.
“As the legislative intent is demonstrated, the scheme of family pension never included a daughter of a pensioner who was married at the time of the death of the pensioner. A daughter who became widowed after the demise after her father/mother does not possess any fundamental or statutory right to claim family pension. In the absence of any legislation in this regard, the benefit of family pension cannot be extended to a daughter of a family pensioner who was married at the time of the death of her father/mother. It will be unwise on the part of this Court to exercise its extraordinary or discretionary power to come to any inference contrary to the policy decision of the Government,” the court noted.
The bench was hearing a plea filed by Union of India challenging an order passed by Central Administrative Tribunal, Calcutta Bench, Kolkata dated June 16, 2016. Office Memorandum dated September 18, 2014 issued by the Ministry of Personnel, P.G. & Pensions, Department Of Pension & Pensioners’ Welfare, Government of India had quashed that order on the ground that it is unconstitutional and opposed to public policy.
As per the Tribunal order, the authorities were directed to continue disbursing family pension to one Ratna Sarkar by treating her as a dependent daughter of the deceased pensioner with arrears to be released within two months from the date of communication of the order.
The pensioner, Nitya Gopal Das was a driver of the Eastern Railway and retired on September 10, 1980. He died on May 19, 1985. His wife, Namita Das was a recipient of a family pension by Eastern Railway. Namita died on May 5, 1991.
The pensioner’s daughter, Ratna Sarkar was married to one Hrishikesh Sarkar. He died on August 3, 1993.
Relying on Rule 54(6) of the Central Civil Services (Pension) Rules, 1972, the court noted that the daughter shall become ineligible for family pension under this sub Rule from the date she gets married. The Rule also stipulates that family pension payable to a son or daughter shall be stopped if he or she starts earning his/her livelihood.
“A conjoint reading of all the relevant office Memorandums of the Railways in the light of Rule 54(6) of CCS (Pension), Rules shows that it was the intention of the legislature that the benefit of family pension would be extended to an unmarried daughter till she attained the age of 25 years or until she got married whichever is earlier. Such benefit, subsequently was extended to a widowed/divorcee daughter of a pensioner beyond the age of 25 years,” the court said.
The court added that the legislature has extended the benefit of family pension to a child/children of a family pensioner on his/her demise under different circumstances as enumerated in the relevant rule. For instance, it was note that a mentally retarded child is bestowed with the legislative blessings to have family pension throughout his life after the demise of his/her parent. But, such benefit is not extended to a married daughter, the court said.
“Extending family pension to a child in distress of the deceased family pensioner is a policy decision of the government,” the court said.
However, the two-judge bench emphasized that a daughter who became widowed after the demise after her father/mother does not possess any fundamental or statutory right to claim family pension.
The court held that clarificatory Office Memorandum cannot be termed discriminatory and unconstitutional. The memorandum had has clarified that the family pension should discontinue in those cases where it has been sanctioned in pursuance of those office Memorandums, but without taking into consideration that the widowed/divorcee daughter was leading a married life at the time of death of her father/mother, whoever died later and was therefore ineligible for family pension.
The Memorandum had also made it clear that it would be appropriate that in order to maintain equality before law family pension payable to such daughter should be discontinued. It added that recovery of the already paid amount of the family pension would be extremely harsh on them and should not be resorted to.
“The clarificatory office Memorandum dated 18.09.2014 which manifests the very object of family pension enshrined in Rule 54(6) cannot be termed as discriminatory and ultra vires the constitution,” the court observed.
“The order dated 16.06.2016 passed by the Learned Tribunal in O.A. no. 350/01194/2015 is hereby set aside. Consequently, the Tribunal application is dismissed,” the court said.
