The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.14235 of 2024 Lokajanani Sahany …. Petitioner Mr. B.R. Barik, Advocate State of Odisha & Others -versus- …. Opposite Parties Mr. S. Jena, AGA Mr.S.K. Patra, Adv. for O.P.3 CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. ORDER 04.09.2024 03. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. On the oral prayer made by learned counsel appearing for the Petitioner, he is permitted to correct the prayer portion of the brief in Court today.
Legal Reasoning
3. Heard learned counsel appearing for the Parties. 4. Petitioner has filed the present Writ Petition inter alia challenging the communication issued by Opposite Party No.3 vide letter dtd.31.05.2023 under Annexure-12 and consequential rejection of the Petitioner’s claim to get the benefit of family pension w.e.f. 21.02.2018 vide communication dtd.24.07.2023 under Annexure-13, so issued by Opposite Party No.4. // 2 // 4.1. Learned counsel for the Petitioner contended that Petitioner is a widow, being of the daughter of the deceased employee, who was superannuated from services on 31.07.1992. 4.2. It is contended that Petitioner’s late father / deceased employee received pension on his superannuation vide PPO No.79303 under Annexure-1. 4.3. It is also contended that on the death of original pensioner on 03.05.2009, Petitioner’s mother was also allowed family pension till she died on 20.02.2018 as reflected in Annexure-3. 4.4. It is contended that Petitioner being a widow and daughter of the deceased employee, she raised her claim to get the benefit of family pension taking recourse to the provisions contained under Rule-56(5) (e) of OCS (Pension) Rules, 1992. 4.5. It is contended that though the claim of the Petitioner was duly forwarded for sanction of family pension w.e.f. 21.02.2018, but Opposite Party No.3 vide the impugned letter dtd.31.05.2023 under Annexure-12, raised objection to such claim of the Petitioner on the ground that Petitioner became widow after the death of the deceased employee and accordingly she is not eligible to get the benefit. In terms of the objection raised by Opposite Party No.3 vide letter dtd.31.05.2023, Page 2 of 8 // 3 // Petitioner’s claim was rejected by Opposite Party No.4 vide the impugned communication dtd. 24.07.2023 under Annexure-13. 4.6. It is contended that on the ground that Petitioner became a widow on 12.12.2009, which happened after the death of the deceased employee on 03.05.2009, Petitioner was held not eligible to get the benefit of family pension. Learned counsel for the Petitioner contended that Rule-56 (5) (e) of the Orissa (Pension) Rules, 1992 is very clear and there is no such stipulation that the widow daughter of the deceased employee will not get the benefit if she became widow after expiry of the deceased employee. Rule-56(5)(e) of the Rules reads as follows:- “in the case of widowed / divorced/ disabled widowed/ disabled divorced daughter even after attaining the age of twenty five years till their re-marriage or death whichever is earlier subject to the condition that in case of divorced daughter / disabled divorced daughter, the family pension for life from the date of death of her husband and there is no other eligible unmarried daughter beyond the age of twenty five years and disabled son / disabled 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 (d) shall also be applicable in the case of widowed / disabled widowed/ disabled divorced daughters for grant of family pension in their favour”. in clause Page 3 of 8 // 4 //
Legal Reasoning
4.7. Not only that in support of his submission, Mr. Barik relied on an order passed by this Court on 19.05.2023 in W.P.(C) No.2879 of 2023. This Court on a claim of similar nature where the claimant became disabled after the death of the deceased pensioner allowed the claim. The view expressed by this Court under Para-12 to 15 reads as follows:- “12. The rejection order dated 23.11.2022 issued by the Senior Accounts Officer of the office of the Opposite Party No.5 reveals that in view of the clarification issued by the Finance Department vide letter dated 06.08.2022 to the effect that a dependent disabled child who is a suffering from any disorder of disability after 25 years of age can be granted the benefits if manifestation of such disorder or disability occurred during life time of the Rtd. Govt. servant/pensioner. 13. On a careful reading of the Finance Department clarification vide letter No.19813/F dated 06.08.2022, this Court is of the view that while issuing the clarification, the to Government has exceeded his Joint Secretary jurisdiction and in the shape of clarification an attempt has been made to amend the rules and to further incorporate certain pre-conditions for grant of disability family pension which are not available in sub-rule (5) of Rule-56 of the OCS (Pension) Rules, 1992. Therefore, the clarification dated 06.08.2022 runs contrary the provisions contained in Rule-56 of OCS (Pension) Rules, 1992. to 14. Accordingly, this Court has no hesitation to hold that the letter dated 06.08.2022 has been issued without having any jurisdiction and authority to issue such a letter. Moreover, the content of such letter are in conflict with the expressed provision contained in sub-rule(5) of Rule-56 of OCS (Pension) Rules, 1992. Accordingly, this Court has no hesitation to hold that letter dated 06.08.2022 of the Finance Department is illegal and contrary to the rules. 15. In view of the aforesaid analysis of law as well as the fact of the case, this Court is also of the considered view that the order dated 23.11.2022 which has been passed keeping in view the clarification issued by the Finance Page 4 of 8 // 5 // Department vide letter dated 06.08.2022 is unsustainable in law and, accordingly, the same is hereby quashed. Further, the Pension Sanctioning Authority (Opposite Party No.3) is directed to resubmit the pension papers to the Opposite Party No.5 within a period of two weeks from the date of production of certified copy of this order by the Petitioner. Further, on such resubmission of the pension papers by the PSA (Opposite Party No.3), the Opposite Party No.5 shall do well to consider the case of the Petitioner in the light of the observation made hereinabove and strictly inconformity with the provisions of Rule-56(5) of the OCS (Pension) Rules, 1992 further keeping in view the disability certificate issued by the competent medical authority. Accordingly, it is directed that if there is no other legal impediment, the Opposite Party No.5 shall disburse the family pension in favour of the Petitioner within a period of four weeks from the date of resubmission of the pension papers by Opposite Party No.3”. 4.8. Learned counsel for the Petitioner also relied on an office memorandum issued by the Government of India on 11.09.2013, wherein it has been indicated that children who are dependent on the Government servant or his/her spouse whichever is later is eligible for family pension. It is contended that since Petitioner became a widow during the life time of her mother, Petitioner is eligible to get the benefit, which has been illegally rejected. Relevant portion of office Memorandum dtd.11.09.2013 reads as follows:- “Therefore, only those children who are dependent and meet other conditions of eligibility for family pension at the time of death of the Government servant of his / hers spouse, whichever is later, are eligible for family pension. If two or more children are eligible for family pension at that time, family pension will be payable to each child on his / hers turn provided he / she is still eligible for family pension when the turn comes. Similarly, family pension to a widowed / divorced daughter is payable provided she fulfills all eligibility conditions at the time of death / Page 5 of 8 // 6 // ineligibility of her parents and on the date her turn to receive family pension comes”. 4.9. It is accordingly contended that rejection of the Petitioner’s claim vide order dtd.24.07.2023 under Annexure-13, basing on the impugned communication dtd.31.05.2023 under Annexure-12 are not sustainable in the eye of law. 5. Even though notice of the Writ Petition has been issued since 02.07.2024, but no counter affidavit has been filed. However, it is contended that since Petitioner became widow after the expiry of the deceased pensioner on 03.05.2009, her claim has been rightly rejected vide the impugned communication under Annexure-13 basing on the objection raised by the Accountant General- Opposite Party No.3 under Annexure-12. 6. Mr. S.K. Patra, learned counsel appearing for the Accountant General on the other hand while supporting the impugned communication dtd.31.05.2023 also made similar submission as contended by learned AGA. 7. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that on the death of the original pensioners on 03.05.2009, who was in receipt of pension vide PPO No.79303, Petitioner’s mother was allowed family pension till she died on 20.02.2018. After such death of the Petitioner’s mother, Petitioner raised the claim to get the Page 6 of 8 // 7 // benefit of family pension w.e.f. 21.02.2018, placing reliance the provisions contained under Rule-56(5) (e) of OCS (Pension) Rules, 1992. This Court after going through the provision finds that family pension is admissible to a widowed / divorced daughter even after attaining the age of twenty five years till her re-marriage or death whichever is earlier subject to the condition enumerated therein. 7.1. In view of the provisions contained under Rule- 56(5)(e) of the 1992 Rules, and the office Memorandum issued by the Government of India on 11.09.2013, it is the view of this Court since Petitioner is eligible to get the benefit of family pension as claimed. 7.2. Therefore, this Court is inclined to quash the communication issued by Opposite Party No.3 on 31.05.2023 under Annexure-12 and the consequential rejection by Opposite Party No.4 vide
Decision
order dtd.24.07.2023 under Annexure-13. While quashing the communication under Annexure-12 and order under Annexure-13, this Court directs Opposite Party No.4 to re-submit the pension paper of the Petitioner within a period of four (4) weeks from the date of receipt of this order. On such receipt of the pension paper, Opposite Party No.3 is directed to sanction the same and release the family pension as due and admissible w.e.f. 21.02.2018 within a further period of six (6) weeks. Page 7 of 8 // 8 // 8. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Sep-2024 10:57:30 Page 8 of 8