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Married Daughter Who Became Widowed After the Death of the Pensioner is Not Entitled to Family Pension: Calcutta High Court

Team SoOLEGAL 8 Feb 2022 5:22pm

Married Daughter Who Became Widowed After the Death of the Pensioner is Not Entitled to Family Pension: Calcutta High Court

The Calcutta High Court ruled on Monday that a widowed daughter of a pensioner who was married at the time of her father/mother’s death cannot be granted the benefit of family pension. The Court ruled that a daughter who became widowed following the death of her father or mother has no fundamental or statutory right to a family pension.


The question before a bench comprised of Justices Harish Tandon and Rabindranath Samanta was whether a daughter of a pensioner who was married but became widowed after the pensioner’s death is entitled to a family pension.


The Court observed, after receiving a negative response,
“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.”


Background
The Union of India had challenged an order issued by the Central Administrative Tribunal, Calcutta Bench, Kolkata on June 16, 2016 by which the office Memorandum dated September 18th, 2014 issued by the Ministry of Personnel, P.G. & Pensions, Department of Pension & Pensioner’s Welfare, Government of India was quashed on the grounds that it was unconstitutional and contrary to public policy.


The concerned tribunal had accordingly directed the authorities to continue disbursing family pension to one Ratna Sarkar by treating her as the deceased pensioner’s dependent daughter, with arrears to be released within two months of the order’s communication.


Nitya Gopal Das, the pensioner, was an Eastern Railway Driver who retired on superannuation on September 10th, 1980. He died on May 19th, 1985, as a railway pensioner. Following the pensioner’s death, his wife Namita Das received a family pension from the Eastern Railway. She passed away on may 05th, 1991.


The widowed daughter was married to one Hrishikesh Sarkar, but he dies unexpectedly on August 03rd, 1993, two years after her pensioner mother Namita Das died.


Observation
The Court relied on Rule 54(6) of the Central Civil Services (Pension) Rules, 1972, which states that a daughter is ineligible for family pension under this sub – rule from the date she marries. Furthermore, the Rule states that a son or daughter’s family pension will be terminated if he or she begins earning a living.


“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 25 of years”, the court observed.


The Court also noted that the legislature has extended the benefit of a family pension to a child/children of a deceased family pensioner in a variety of circumstances as specified in the relevant rule. It was noted, for example, that a mentally retarded child is bestowed with the legislative blessings of having a family pension for the rest of his/her life after the death of his/her parent. A married daughter, on the other hand, is not eligible for such a benefit.


The court went on to say that extending a family pension to a child in distress of a deceased family pensioner is a government policy decision. However, the Court emphasized that a daughter who became widowed following the death of her father or mother does not have any fundamental or statutory right to a family pension.


It was also determined that the clarifying Office Memorandum dated September 18th, 2014 was not discriminatory or unconstitutional. The concerned office memorandum clarified that the family pension should be discontinued in cases where it had been sanctioned in accordance with those office memorandums, but without taking into account that the widowed/divorcee daughter was leading a married life at the time of her father/mother’s death, whoever died later and was thus ineligible for family pension.


According to the Office Memorandum, it would be appropriate to discontinue the family pension payable to such daughter in order to maintain equality before the law. Recovery of the already paid amount of the family pension, on the other hand, would be extremely harsh on them and should not be used.


“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 held further.


Accordingly the court directed, “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.”




Tagged: Married   daughter   calcutta   High court   pension   death   retired   civil services   Justice Harish Tandon   Justice Rabindranath Samanta  
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