The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.1273 of 2019 (In the matter of an application under Articles 226 and 227 of the Constitution of India) B. Papa Rao ....... Petitioner -Versus- The Chief Executive Officer, (CEO) TPWODL, Burla, Sambalpur and others ....... Opposite Parties Advocate for the parties For Petitioner : Mr. C.A. Rao, Sr. Adv. assisted by Mr. S.K. Behera, Adv. For Opposite Parties : Mrs. S. Pattnaik, Adv. ---------------------------- CORAM: JUSTICE SANJAY KUMAR MISHRA --------------------------------------------------------------------------------- Date of Judgment: 03.09.2025 --------------------------------------------------------------------------------- S.K. Mishra, J. The Petitioner, who is a retired employee, has preferred the present Writ Petition challenging the order dated 12.10.2018 as at Annexure-11, vide which his prayer for change of nominee for the purpose of family pension stood rejected on the ground that such a prayer is not permissible under the Pension Rules. A further prayer has been made to direct the Opposite Parties to change the name of the nominee in the Pension Book by entering the name of the Petitioner’s 2nd wife within a stipulated period. 2. The brief facts, which led to filing of the Writ Petition, are that the Petitioner, who was serving as an Assistant. Engineer (Elect) under the Opposite Parties, retired from his service in the year 2005 and his 1st wife’s name was entered in his pension book. On 26.05.2009, his 1st wife died while she was under treatment in a hospital. 2.1 Thereafter, the Petitioner re-married on
Legal Reasoning
22.08.2012 to Smt. Kilam Ratnamala before the Marriage Officer, Rayagada vide Registration No.21/12 and a certificate to the said effect was issued by the Marriage Office, Rayagada on 22.08.2012. The Petitioner submitted W.P.(C) No.1273 of 2019 Page 2 of 24 a representation before the G.M. (HRD), WESCO Ltd., Burla with a prayer to change the nominee on the death of his 1st wife namely, Baratam Malleswaramma indicating therein that after her death, he re-married to Kilam Ratnamala on 22.08.2012. A request was made vide the said representation to change the nominee by entering the name of his post retiral spouse, hereinafter called ‘2nd wife’, to receive family pension, enclosing thereto the original affidavit, joint photograph, marriage certificate, death certificate and Form No.5 in original. Despite complying all the requirements, because of inaction of the authority concerned, he again submitted another representation before the General Manager (HRD) WESCO Ltd., Burla (Opposite Party No.2) on 24.07.2015 stating therein that his 2nd wife namely, Smt. Kilam Ratnamala is eligible for family pension in terms of the Govt. Order No.8843 dated 07.03.1994 of the Addl. Secretary to Govt., Bhubaneswar, addressed to A.G., of Odisha, regarding family pension to post retired spouses w.e.f. 01.04.1992. A copy of the said order was also W.P.(C) No.1273 of 2019 Page 3 of 24 enclosed to the said representation. The Opposite Party No.3, vide letter dated 16.03.2016, forwarded the said representation with enclosures to the Opposite Party No.2 with a request to change the name of the nominee in the pension paper of the Petitioner by entering the name of Petitioner’s 2nd wife, i.e., Smt. Bartam Ratnamala. It has further been stated in the Writ Petition that the 2nd wife of the Petitioner changed her name by swearing an affidavit and publishing the same on 28.07.2016 in an oriya daily newspaper namely, “The Anupam Bharat” regarding change of her surname from Smt. Kilam Ratnamala to Smt. Bartam Ratnamala. After change of her surname, the Petitioner again submitted a representation before the Opposite Party No.2 on 28.07.2016 with a prayer to change the name of the nominee and to enter his 2nd wife’s name in place of his deceased 1st wife’s name, enclosing thereto an affidavit dated 25.07.2016 sworn by his 2nd wife so also the newspaper publication dated 28.07.2016. In response to such submission, the Opposite Party No.2 issued a letter W.P.(C) No.1273 of 2019 Page 4 of 24 on 02.11.2016 to the Opposite Party No.3 stating therein that the Petitioner is to clarify whether Smt. Kilam Ratnamala was a relative of the Petitioner prior to such marriage between them, with a request to communicate the said letter to the Petitioner. On receiving said communication, the Petitioner, vide letter dated 09.11.2016, clarified that there was no relationship with Smt. Kilam Ratnamala prior to their marriage. Thereafter, the Petitioner submitted many representations before the Opposite Parties for change of nominee in his pension paper. Finally, the Opposite Party No.1 passed the impugned
Decision
order dated 12.10.2018, making a communication to the Opposite Party No.3, indicating therein that such a request for change of nominee for the purpose of family pension made by the Petitioner is not permissible under the Pension Rules. A copy of the said rejection order was marked to the Petitioner. 3. Opposing to such prayer made in the writ petition, the Opposite Parties have filed a joint Counter Affidavit. The sum and substance of the Counter Affidavit W.P.(C) No.1273 of 2019 Page 5 of 24 is, Rule 56 (15) of the OCS (Pension) Rules, 1992 deals with intimation regarding nomination of family members. The said provision is confined only to the extent of intimation regarding any change in the size of family. Under the said Rules, there is no scope regarding change of nominee. It has further been stated in the Counter that as per the provision under Rule 56 (17) (b), the term ‘family’ in relation to a Government servant means ‘wife’ in the case of a male Government servant or ‘husband’ in the case of a female Government servant. Thus conjoint reading of the said provisions makes it clear that there is no scope regarding change of nominee after retirement of the Government servant. The Government servant can only intimate regarding the change in size of the family i.e. marriage of daughter/death of any eligible legal heir etc. It has further been stated in the Counter that the nomination for family pension would not ipso facto confer right upon the nominee for entitlement of family pension, unless the nominee is legally entitled to get the family pension at the time of death of the Government servant. W.P.(C) No.1273 of 2019 Page 6 of 24 It has been stated that the entitlement for family pension in respect of the Petitioner is a future contingency. Therefore, there is no need in change of nomination, even though there is no scope on part of the Opposite Parties to change the family details after retirement of the Petitioner, which is only confined to the extent of change in the size of the family. It has also been stated that notwithstanding the non-change of nomination would not debar the 2nd wife of the Petitioner to get family pension, if she satisfies the eligibility criteria after the lifetime of the Petitioner. Hence, the entitlement of the 2nd wife of the Petitioner for family pension being a future contingency, any contention regarding the same does not arise at this juncture. It has further been stated that the Petitioner has already submitted his family details at the time of his retirement in Form-D, in terms of Rule 56 (15) of the OCS (Pension) Rules, 1992. Since there is no provision of change of nomination for family pension in the said Rules, 1992, the scope of change of nomination does not arise. A stand has also been taken in the W.P.(C) No.1273 of 2019 Page 7 of 24 Counter that though the 1st wife of the Petitioner namely, Baratam Malleswaramma expired on 26.05.2009, the Petitioner did not prefer to intimate the said fact to the Opposite Parties about the change in size of his family. After a lapse of more than three years, the Petitioner informed the Opposite Parties on dated 28.11.2013 about the death of his 1st wife, so also regarding his re-marriage and made a request vide his representation dated 28.11.2013 for change of nominee. Subsequently, his 2nd wife Smt. Killam Ratnamala, vide newspaper publication dated 28.07.2016, declared change of her name to “Bartam Ratnamala”. Hence, it is not clear whether the 2nd wife of the Petitioner is entitled to get any other family pension from her earlier deceased husband or not. 4. Mr. Rao, learned Senior Counsel for the Petitioner, reiterating the facts detailed in the writ petition, submitted that though there was no such provision under the Orissa Pension Rules, 1977. However, the said Rules, 1977 ceased to operate on commencement of Odisha Civil Service (Pension) Rules, W.P.(C) No.1273 of 2019 Page 8 of 24 1992, shortly, hereafter ‘Pension Rules, 1992”. In view of the Explanation-1 under Rule 56 (17)(6) of the Pension Rules, 1992, the benefit of family pension shall also be admissible to the post-retiral spouses from the date, following the date of death of the pensioner. 5. Mr. Rao, learned Senior Counsel, drawing attention of this Court to the rejection letter dated 12.10.2018, as at Annexure-11, further submitted that though there is an indication in the said rejection letter that request of the Petitioner for change of nominee for the purpose of family pension is not permissible under the Pension Rules, 1992, there is no such mention in the said communication, as to under which provision of the Pension Rules, 1992 there is a bar for change of nominee for the purpose of family pension after retirement of the Government Servant. Rather, in terms of Explanation-1 under Rule 56(17)(6) of the Pension Rules, 1992, the benefit of family pension is admissible to the 2nd wife of the Petitioner. Mr. Rao, learned Senior Counsel further submitted that, on being asked, the Petitioner furnished W.P.(C) No.1273 of 2019 Page 9 of 24 all the details so also required documents to the Opposite Party No.3, who forwarded the same to the Opposite Party No.2 vide letter dated 16.03.2016. On getting such information, a clarification was also sought for by the Opposite Party No.2 vide letter dated 02.11.2016. On receiving such communication, the Petitioner also promptly, vide letter dated 09.11.2016, clarified that there was no relationship of the Petitioner with his 2nd wife prior to the said marriage. If the Rules allegedly do not permit to change the nominee, the authority concerned should have rejected his representation without seeking for any clarification. 6. Further, relying on the judgment of the Supreme Court reported in AIR 1989 SC 2088 (Smt. Bhagwanti Vs. Union of India), Mr. Rao, learned Senior Counsel further submitted that in the said case the Supreme Court held that the definition of ‘family’ suffers from the vice of arbitrariness and discrimination and cannot be supported by nexus or reasonable classification. Vide the said judgment, the definition of W.P.(C) No.1273 of 2019 Page 10 of 24 ‘family’ occurring in Rule 54 (14)(b) of the Central Civil Services (Pension) Rules, 1972 was held to be ultra vires. Thereafter, the Pension Rules, 1977 was substituted vide Pension Rules, 1992. Vide Explanation-1 to Rule 56 (17)(6) of the Rules, 1992, it was clarified that the benefit of the family pension shall also be admissible to the post- retiral spouses from the date following the date of death of the pensioner. 7. Learned Senior Counsel for the Petitioner further submitted that in view of the admission in the Counter that the 2nd wife of the Petitioner would be entitled for family pension after the death of the Petitioner, in view of the said Explanation under Rule 56 (17)(b) of the Pension Rules, 1992, the authority concerned ought to have considered the application of the Petitioner for change of the name of the nominee in the pension papers of the Petitioner by inserting the name of his 2nd wife as the nominee to get the family pension.Mr. Rao submitted that, the sole intent of the Pension Rules is that, the persons, who are entitled to family pension, W.P.(C) No.1273 of 2019 Page 11 of 24 their names should be indicated in the pension book, failing which, after the death of the pension holder, the legal heirs will be in trouble to get their claim. 8. Per contra, Mrs. Patnaik, learned Counsel for the Opposite Parties, reiterating the stand taken in the Counter, submitted that the authority concerned was justified in rejecting the prayer of the Petitioner for change of nominee for the purpose of family pension, in absence of any specific Rules to the said effect under the Pension Rules, 1992. She further submitted that, at this juncture, there is no need to change in nomination, as has been prayed in the writ petition. The non-change of nomination will not debar the 2nd wife of the Petitioner, if she satisfies the eligibility criteria after the lifetime of the Petitioner, as the entitlement of the 2nd wife of the Petitioner of family pension is a future contingency. 9. In view of the submissions made by learned Counsel for the parties, it would be apt to reproduce below Sub-Rule 17(b) of Rule 56 of the Pension Rules, 1992: W.P.(C) No.1273 of 2019 Page 12 of 24 “ (17) XXX XXX XXX (b) ’Family’ in relation to a Government servant means- (i) wife in the case of a male Government servant or husband in the case of a female Government servant. (ii) ’[through a registered adoption deed] Explanation (1) The benefit of family pension shall also be admissible to the post-retiral spouses from the date following the date of death of the pensioner.” (Emphasis supplied) 10. Similarly, Office Order No.Pen.9/93-8843 dated 07.03.1994 of the Government of Orissa, Finance Department, which was issued based on the said Explanation, being relevant, is reproduced below. “Government of Orissa Finance Department No.Pen-9/94 8843/F Shri R.K. Das, Additional Secretary to Government From To The Accountant General (A & E) Orissa, Bhubaneswar W.P.(C) No.1273 of 2019 Page 13 of 24 Sub: Clarification regarding family pension to post retiral spouses. Bhubaneswar the 7th March, 1994 Sir, I am directed to invite a reference to your letter No.PM-1-2-3 state-93-94/249 dated 11.1.94 on the above subject and to say that there is no provision under OPR, 77 for grant of family pension in favour of post retired spouses. For the first time family pension scheme has been extended to the post retiral spouses under explanation (1) below Rule 56(17) (b)(i) of the O.C.S. (Pension Rules, 1992 which come into force with effect from 1.4.92. Past cases, if any are covered under Rule 56(17) of the O.C.S. (Pension) Rules, 1992 prospectively. Yours faithfully SD/- Additional Secretary to Government Memo No.8844/F Dated 07.3.94 Copy of forwarded Government/Heads of Department/ Collectors/ Treasury/ Special Treasury and Sub-Treasury Officers for information. all Departments to SD/- Under Secretary to Government (Emphasis Supplied) 11. As is revealed from the correspondences made between the Petitioner and the Opposite Parties, till W.P.(C) No.1273 of 2019 Page 14 of 24 rejection of his application for change of nominee for the purpose of family pension vide letter dated 12.10.2018 as at Annexure-11, no such communication was made to the Petitioner, pointing out that there is no such provision under the Pension Rules, 1992 to make necessary changes of nominee, as was prayed by the Petitioner. Rather, from time to time, the Petitioner was asked to furnish necessary information and documents enabling the Opposite Parties-Employer to do the needful, which were duly complied with. 12. Finally, vide letter dated 12.10.2018, without referring to any specific Rule under the Pension Rules, 1992, a communication was made by the Authorized Officer, WESCO UTILITY, Burla to the Executive Engineer, Balangir Electrical Division, Balangir taking a flimsy ground that such a request was made for change of nominee for the purpose of family pension much after retirement of the Petitioner and the same is not permissible under the Pension Rules, 1992. The contents W.P.(C) No.1273 of 2019 Page 15 of 24 of said letter dated 12.10.2018, being relevant, are reproduced below. “WESCO UTILITY Head quarter: At/Po- Burla-768017, Dist- Sambalpur, Odisha Phone (0663) 2430524, Facsimile (0663) 2432115, [email protected], Website : www.wescoorissa. com DEPT. OF HUMAN RESOURCE DEVELOPMENT No. WESCO/HR.Estt/7716 Dated 12.10.2018 To The Executive Engineer Balangir Electrical Division Balangir Sub- Regarding change of nominee in the PPO of Sri Bartam Papa Rao, Ex-AE (Elect.) Ref- Your letter no.4015 (2) dt. 06.08.2016 Sir, With reference to the subject cited above and Legal views obtained in that respect, the request of Sri Bartam Papa Rao, Ex- AE (Elect.) for change of nominee for the purpose of Family Pension, to whom he married on 22.08.2012 i.e. much after his retirement is not permissible under the Pension Rules. Hence, devoid of any merit, the representation of Sri Rao towards change of nominee is not considered. As such, the proposal, Original PPO no.618/05- 2006 in duplicate alongwith other documents of Sri Rao are retuned herewith, the receipt of which may W.P.(C) No.1273 of 2019 Page 16 of 24 further you are please be acknowledged and requested to communicate the same to Sri Rao accordingly. SD/- AUTHORISED OFFICER CC to Sri Bartam Papa Rao, Ex- AM (Elect.), At- Prama Sai Apartment, Flat no.3-547-G6, Samadhi cross, Puttaparthy-515134, Andhra lane, 2nd Pradesh. CC to: DGM (HRD) CC TO: Subject file” (Emphasis supplied) 13. So far as the stand of the Opposite Parties in the Counter Affidavit, paragraph No.10, being relevant, is reproduced below: “10. That it is further pertinent to submit that, the nomination for family pension would not ipso facto confer right upon the nominee for entitlement of family pension unless the nominee is legally entitled to get the family pension at the time of death of the Government servant. In the instance case, the entitlement for family pension in respect of future the Petitioner contingency. Therefore, there is no need in change of nomination, even though there is no scope on part of the answering O.Ps. to change the family details after retirement of the Petitioner which is confined only to is a W.P.(C) No.1273 of 2019 Page 17 of 24 the extent of change in the size of the family. Notwithstanding the non- change of nomination would not debar the Second wife of the Petitioner, if she satisfies the eligibility criteria after the lifetime of the Petitioner. Hence, the entitlement of the Second wife of the Petitioner qua family pension, being a future contingency, any contention regarding the same does not arise at this juncture.” (Emphasis supplied) 14. In Smt. Bhagawanti (supra), the Supreme Court, while dealing with an issue regarding constitutional validity of definition of “family” in Central Civil Services (Pension) Rules, 1972, held as follows: of the Third the basis of which “11. Reliance has been placed on the Pay recommendations the Commission on amendment in the Pension Rules is said to have been made. Apart from referring to the recommendations, no attempt has been made at the hearing by counsel for the Union of India the recommendations. We see no justification as to why post-retirement marriages should have been kept out of the purview of the definition. support really derive from to 12. In clause (ii) of the definition son or daughter born after retirement even out of wedlock (sic entered) prior to retirement have been excluded from the definition. No plausible for our explanation has been placed W.P.(C) No.1273 of 2019 Page 18 of 24 the from the benefit of consideration for this exclusion. The purpose for which family pension is provided, as indicated in Poonamal case [(1985) 3 SCC 345 : 1985 SCC (L&S) 802 : (1985) 3 SCR 1042] is frustrated if children born after retirement are excluded family pension. Prospect of children being born at such advanced age (keeping the age of normal superannuation in view) is minimal but for the few that may be born after the retirement, family pension would be most necessary as in the absence thereof, in the event of death of the government servant such minor children would go without support. The social purpose which was noticed in some pension cases by this Court would not justify the stand taken by the Union of India in the counter-affidavit. It is not the case of the Union Government that as a matter of public policy to contain the growth of population, the definition has been so modified. Even if such a contention had been advanced it would not have stood logical scrutiny on account of the position that the government servant may not have any child prior to retirement and in view of the accepted public policy that a couple could have children up the only child born after superannuation should not be denied family pension. 13. Considered from any angle, we are of the view limitations the incorporated in the definition of “family” suffer from the vice of arbitrariness and discrimination and cannot be supported by nexus or reasonable classification. The words “provided the marriage took place before retirement of the government servant” in clause (i) and “but shall not include son or daughter born after retirement” in clause (ii) are thus ultra that two, two to W.P.(C) No.1273 of 2019 Page 19 of 24 vires Article 14 of the Constitution and cannot be sustained.” (Emphasis supplied) 15. From the Pension Rules, 1992, followed by the Finance Department Circular dated 07.03.1994, which have been extracted above, it is amply clear that post retiral spouse is also entitled to get family pension. 15.1 A nominee is designated to receive the benefits in case the Pensioner passes away. The purpose of keeping a nominee is to ensure receiving the pension benefits after the lifetime of the Pensioner so also a smooth transfer of funds to the account of the designated person. The nominee provision also helps to provide financial security to the Pensioner’s loved ones in the event of his passing away. By designating a nominee, the pensioner so also the nominee can avoid legal complications and disputes over the distribution of benefits. The importance of keeping a nominee is, to clearly outline who will receive the benefits, avoiding potential disputes in the said regard. Further, the same will ensure timely payment of family pension to the W.P.(C) No.1273 of 2019 Page 20 of 24 nominee, thereby ensuring the nominee to plan his/her funds accordingly. 15.2 Hence, this Court is of the view that if a Pensioner, during his life time, applies for correction of name of the nominee in the pension paper/book, as there is no specific bar under the Rules, 1992 to make such correction, rather Explanation-(1) under Rule 56(17) (b)(i) of the O.C.S. Pension Rules, 1992 permits the post retiral spouse to get the family pension, such correction of nominee should be allowed by the Employer promptly, provided the nominee satisfies the criterion in terms of the Pension Rules, 1992 . 16. At this juncture, before parting with the judgment, since the Management of TPWODL has been substituted vide Order dated 11.08.2025, it would be apt to reproduce below relevant portions of Paras 47 and 76 of the Vesting Order dated 28.12.2020 passed by the Odisha Electricity Regulatory Commission in Case No.82 of 2020, which take care of the employees liability of the W.P.(C) No.1273 of 2019 Page 21 of 24 erstwhile Management of WESCO, to be borne by the substituted Management of TPWODL. “47. Treatment of employee liabilities (a) All the existing staff/employees of WESCO utility shall be transferred to TPWODL as mentioned in para 46 above. The corresponding liabilities towards pension, gratuity, leave encashment and provident fund of existing and past employees (Employees’ Liabilities) shall also be transferred to TPWODL (b) The WESCO Employees’ Pension Trust, WESCO Employees Gratuity Trust, WESCO Employees Provident Fund Trust and WESCO Rehabilitation Trust are managing funds against pension, gratuity, provident fund and rehabilitation liabilities respectively. Now, we deal with issues raised by 76. the intervenors in their written submissions: Protection of service conditions and employee liabilities Several intervenors have raised concerns on the protection of service conditions and treatment of employee liabilities such as pension, gratuity, provident fund etc. The Commission reiterates that these aspects have been already addressed in the RFP, the LoI and also in Para 46 and 47 of this Order. Para 46 of this Orders states that the employees shall be governed by the terms of their appointment and that their service conditions cannot be made inferior to the existing service conditions in any manner. Para 47 of this liabilities Order that leave towards the gratuity, specifies pension, W.P.(C) No.1273 of 2019 Page 22 of 24 fund of encashment and provident existing as well as past employees shall also be transferred to TPWODL. The existing mechanism of discharging employee liabilities from WESCO Employees Pension Trust, WESCO Employees Gratuity Trust, WESCO Employees Provident Fund Trust and WESCO Rehabilitation Trust shall continue even after the Effective Date. TPWODL shall be responsible to remit the amounts to the Trusts towards Employees’ Liabilities.” (Emphasis supplied) 17. In view of the admission in the Counter that the 2nd wife of the Petitioner would be entitled for family pension after the lifetime of the Petitioner so also in view of the Explanation-1 to Sub-Rule 17(6) of Rule 56 of the Pension Rules, 1992 and the Office Order dated 07.03.1994 of the Finance Department so also the views taken by this Court, this Court is of further view that rejection of the application of the Petitioner for the purpose of family pension on the ground that Pension Rules, 1992 does not permit so and such a prayer is premature, is illegal and unjustified. Accordingly, the impugned communication dated 12.10.2018 is hereby set aside. As all documentations have already been made for W.P.(C) No.1273 of 2019 Page 23 of 24 change of nominee since long, the substituted Opposite Parties-Employer, being the successor in interest, are directed to make necessary changes/corrections in the Pension Payment Order No.618/05-2006 of the Petitioner and other pension papers, if any, by replacing the name of his 2nd wife namely, ‘Kilam Ratnamala’, to be the nominee for the purpose of family pension. The said correction shall be carried out at the earliest, preferably, within a period of four weeks from the date of production of the certified copy of this judgment with due intimation to the Petitioner. 18. The writ petition stands disposed of with the aforesaid directions. No order as to costs. …….…………………… S.K. MISHRA, J. Orissa High Court, Cuttack. Dated, the 3rd September, 2025/Kanhu Signature Not Verified Digitally Signed Signed by: KANHU BEHERA Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 06-Sep-2025 14:17:03 Page 24 of 24 W.P.(C) No.1273 of 2019