The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.7549 of 2024 An application under Articles 226 & 227 of the Constitution of India. Smt. Lilima Behera …. Petitioner Mr. Amit Kumar Das, Advocate -versus- State of Orissa …. Opposite Party Mr. M.R. Mohanty, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of hearing and Judgment: 05.02.2025 ______________________________________________________ A.K. Mohapatra, J. : 1. Heard learned counsel for the Petitioner as well as learned Additional Government Advocate for the State-Opposite Party. Perused the pleadings of the respective parties as well as documents annexed thereto. 2. The Petitioner has filed the present writ application with the following prayer: Page 1 of 13 “It is, therefore, humbly prayed that this Hon’ble court may graciously be pleased to: -
Legal Reasoning
a) Allow this Writ petition, issue Rule Nisi calling upon the Opp. Party to show cause as to why the Petitioner shall not receive pension of Late Uttam Behera and direct the O.P to change the change the nomination in favour of petitioner’s husband, Sri Sanjay Kumar Behera for acceptance as nominee to receive family pension of deceased Sri Uttam Behera of the within a time period as fixed by this Hon’ble Court. b) And pass any other order/orders, direction/directions which this Honourable Court may deem the circumstances of this case,” fit and proper in 3. The present writ application has been filed by the Petitioner with a prayer for a direction to the Opposite Parties to pay the disabled family pension in favour of her husband, namely Shri Sanjay Kumar Behera, who happens to be the disabled son of the deceased government employee, namely Late Uttam Behera, after accepting the husband of the Petitioner as a nominee to receive the family pension of the deceased-government employee, viz., Late Uttam Behera. Page 2 of 13 4. The case of the Petitioner in a nutshell is that the husband of the present Petitioner is a disabled son of one Late Uttam Behera who was engaged in the office of the Special Relief Commissioner, Govt. of Odisha as a Lunch Driver. On attaining the age of superannuation, Late Uttam Behera retired from government service w.e.f. 30.06.1994. Thereafter, the government employee was receiving pension till his death on 22.02.2022. The pleadings further reveal that the wife of the above named government employee has pre-deceased the government employee on 22.01.2010. After the death of the said Late Uttam Behera, his son, i.e. the husband of the present Petitioner, applied for grant of family pension on the ground that he is a disabled son of the deceased-government employee. It further appears that the husband of the present Petitioner, being a disabled child, was entirely dependant on his father for his bread and butter and for the survival of his own family, including the present Petitioner. Since, the Petitioner is eligible to get family pension, he had submitted an application before the sole Opposite Party on 28.10.2022. Such application has been rejected by the Opposite Party vide letter dated 23.11.2023. It is in this background that the Page 3 of 13 Petitioner has approached this Court by filing the present writ application. 5. Learned counsel for the Petitioner at the outset contended that in view of Rule 56(5) of the OCS (Pension) Rules, 1992, the Petitioner is eligible to get family pension. Accordingly, after the death of the government employee, the Petitioner submitted his application for grant of family pension on 28.10.2022 under Annexure-5 to the writ petition. He further contended that the application for grant of family pension was also submitted keeping in view the notification of the State Government dated 23.07.2011 under Annexure-3 to the writ petition. Further, referring to the said notification, learned counsel for the Petitioner submitted that such notification covers the disabled children of the pensioner for receiving family pension under Rule 56(5)(e) of the OCS (Pension) Rules: “disabled son is eligible to get family pension after the death of the pensioner”. In such view of the matter, learned counsel for the Petitioner submitted that there is no dispute with regard to the entitlement of the husband of the Petitioner to get family pension after the death of his father. Page 4 of 13 6. Learned counsel for the Petitioner further referring to the impugned rejection order under Annexure-5 to the writ petition, contended that the Opposite Party has rejected the claim of the Petitioner on the ground that the deceased-government employee/pensioner, in his pension paper, has not mentioned regarding the entire disability of his son, namely, Shri Sanjay Kumar Behera, i.e. the husband of the present Petitioner. Further, the impugned order reveals that the application has also been rejected on the ground that the certificate, issued on 03.12.2020, which was produced before the authority to establish the mental disability of the husband of the Petitioner wherein it has been assessed that the husband of the Petitioner is having 70% mental disability. The impugned order further reveals that although the husband of the Petitioner was born on 16.05.1974, however, a disability certificate was issued only on 03.12.2020. lastly, referring to the aforesaid impugned order and the grounds of rejection stated therein, the learned counsel for the Petitioner contended that the grounds of rejection are highly arbitrary and unsustainable in law. Moreover, the same has also not been passed in conformity with the Rule 56 of the OCS (Pension) Page 5 of 13 Rules as well as the notification of the State Government as referred to hereinabove. 7. Learned Additional Government Advocate appearing for the State-Opposite Party, on the other hand, supported the impugned rejection order dated 23.11.2023 under Annexure-5 to
Decision
the writ petition. He further contended that while scrutinizing the application of the Petitioner for grant of family pension, it was detected that his name was not mentioned by the deceased- government employee in the pension paper. He further contended that although the Petitioner was born in the year 1974, however, a disability certificate was obtained only in the year 2020. Learned counsel for the State further submitted that the fact with regard to the mental disability of the husband of the present Petitioner was never disclosed to the authorities till such time the Petitioner filed an application seeking family pension. Further, referring to the counter affidavit, learned counsel for the State submitted that the grounds of rejection in the impugned order are fully justified and supported by sound reasons in the counter affidavit. On such grounds, learned counsel for the State submitted that the Opposite Page 6 of 13 Party has not committed any illegality in rejecting the claim of the Petitioner under Annexure-5 to the writ petition. 8. Having heard the learned counsels appearing for the respective parties, on a careful examination of their submissions, further, on a scrutiny of the pleadings of the respective parties as well as the documents filed along with the pleadings, this Court observes that the only issue which is required to be adjudicated in the present writ petition is whether the husband of the Petitioner is entitled to get family pension under Rule 56(5)€of the OCS (Pension) Rules, 1992? 9. So far as, the factual background of the present case is concerned, this Court observes that there is no dispute with regard to the fact that Late Uttam Behera, the deceased-government employee, had retired from service on 30.06.1994 while he was working as a Lunch Driver under the Special Relief Commissioner, Govt. of Odisha. It is also not disputed that Late Uttam Behera was receiving pensionary benefits till the date of his death on 22.02.2022. Therefore the only question, which is required to be adjudicated at this juncture is as to whether the Page 7 of 13 husband of the Petitioner is entitled to get the family pension after the death of his father (ex-government employee) on 22.02.2022. 10. On perusal of the records, it appears that a disability certificate has been produced before the authorities by the husband of the present Petitioner. The said disability certificate under Annexure-1 to the writ petition reveals that the same has been issued by the Medical Authority duly notified by the Department of Empowerment of Persons with Disability, Ministry of Social Justice and Empowerment, Government of India. On perusal of the said certificate, it is further revealed that the husband of the Petitioner was suffering from mental illness, i.e. chronic schizophrenia and accordingly he has been assessed to be 70% disable in terms of the RPWD Act, 2016. In the counter affidavit, the content of the disability certificate and the issuing authority has not been disputed. The only ground that has been taken by the Opposite Party is that such certificate was obtained only on 03.12.2020. In view of the aforesaid position, this Court has no hesitation in arriving at a conclusion that the husband of the present Petitioner, namely Shri Sanjay Kumar Behera is mentally ill and as such he is a person with disability under the Page 8 of 13 RPWD Act, 2016 and the percentage of disability is 70% as indicated in the certificate under Annexure-1 to the writ petition. Therefore, it stands established that the husband of the present Petitioner is a disabled person. 11. With regard to the entitlement of the family pension of the husband of the present Petitioner, this Court is required to analyze the provisions contained in Rule 56(5) of the OCS (Pension) Rules, 1992. The relevant provisions of Rule 56(5) of the OCS (Pension) Rules, 1992, that relate to the case of the Petitioner’s husband, i.e. Rule 56(5)(e) is quoted herein below; “In the case of widowed / divorced / disabled widowed / disabled divorced daughters even after attaining the age of twenty five years till their remarriage or death whichever is earlier subject to the condition that in case of divorced daughters / disabled divorced daughter, the divorce is valid in law and the case of widowed / disabled widowed daughter, the family pension for life from the date of death of her husband and there is no 43 other eligible unmarried daughter beyond the age of twenty five years and disabled son / disabled unmarried daughter to receive the family pension. The benefit of family pension for life shall be admissible to the widowed / divorced daughter only after cessation of the claim of disabled widowed / disabled divorced daughter. The other conditions governing grant of family pension to the unmarried daughters as specified in clause (d) shall also be applicable in the case of widowed / Page 9 of 13 disabled widowed / disabled divorced daughters for grant of family pension in their favour. Provided that if the son or unmarried daughter including widowed/divorced daughter of a Government servant is suffering from any disorder or disabled of mind or is physically crippled or disabled so as to render him or her, unable to earn a living even after attaining the age of twenty five years, the family pension shall be paid to such son or unmarried daughter for life subject to the following conditions namely - the (i) if such son or unmarried daughter is one among two or more children of the family servant/pensioner, Government pension shall be initially payable to the children in the order set out in clause (c) of Sub rule(7) hereinafter until the last child attains the age of twenty five years and thereafter the family pension shall be resumed in favour of the son or unmarried daughter suffering from disorder or disability of mind or who is physically crippled or disabled and shall also be admissible in the case of disabled widowed, disabled divorced daughter of a Government servant/ pensioner in case there is no other disabled son/disabled unmarried daughter and eligible unmarried daughter. (ii) if there are more than one such son or unmarried daughter suffering from disorder or disability of mind or who are physically crippled or disabled the family pension shall be paid in order of their birth and the younger of them will Page 10 of 13 get the family pension only after the elder next above him/her ceases to be eligible.” 12. On perusal of the aforesaid provision, it appears that the son and daughter of the deceased-government employee/pensioner is entitled to the family pension. So far as, the son is concerned, the same has been restricted till he attains the age of 25 years and in case of unmarried daughter up to the age of 25 years or till she gets married. Rule 56(5)(e) of the OCS (Pension) Rules provides that disabled son and daughter are entitled to get family pension. Keeping in view the provision contained in Rule 56(5)(e) of the OCS (Pension) Rules, it appears that the Opposite Party, while rejecting the claim of the husband of the Petitioner under Annexure-5, has failed to apply the said provision to the facts of the present case. 13. On a careful scrutiny of the impugned rejection order under Annexure-5, this Court observes that the application of the Petitioner has been rejected on some vague and untenable grounds. The ground of rejection, i.e. the fact that the mental disability of the husband of the Petitioner was not mentioned in the pension paper, is hardly a reasonable ground to reject the application of the husband of the Petitioner. Moreover, the other Page 11 of 13 ground of rejection, that the disability certificate was produced on 03.12.2020, is equally absurd and unacceptable in law. A close scrutiny of the provisions contained in Rule 56 of OCS (Pension) Rules, 1992, it doesn’t appears that there is any requirement of any disclosure or the grounds of rejection are required to be complied. 14. Therefore, on a careful analysis of the factual as well as legal background of the present case, this Court is of the view that the Opposite Party has committed an illegality in rejecting the claim of the Petitioner under Annexure-5 vide order dated 23.11.2023 and such grounds of rejection are not supported by the provisions laid down in Rule 56 of the Rules, 1992. Accordingly, this Court has no hesitation in setting aside the order dated 23.11.2023 under Annexure-5 to the writ petition. Accordingly, the same is hereby set aside. It is further directed that on communication of a copy of the judgment, the Opposite Party shall do well to sanction and disburse the family pension as is due and admissible to the husband of the Petitioner within a period of eight weeks from the date of receiving of a copy of today’s order. Further, it is clarified that in the event, the husband of the Page 12 of 13 Petitioner is unable to attend the office or make any application, then the Opposite Party shall permit the Petitioner, who is the legally married wife of Shri Sanjay Kumar Behera (the son of the deceased government employee), to submit any papers and to receive the amount on behalf of her husband Shri Sanjay Kumar Behera as a legal guardian in terms of Rule 56. Payment of family pension shall be subject to fulfillment of other conditions of Rule 56 of OCS (Pension) Rules, 1992. 15. With the aforesaid observations/directions, the writ petition stands allowed. (Aditya Kumar Mohapatra) Judge Orissa High Court, Cuttack The 05th February, 2025/ S.K. Rout, Jr. Stenographer Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Feb-2025 11:10:58 Page 13 of 13