Salma Beevi V.A vs Administrative Officer on 15 January, 2014

[Cites 3, Cited by 3]

Kerala High Court

Salma Beevi V.A vs Administrative Officer on 15 January, 2014

The appellant is the petitioner in W.P.(C)No.29316/2013. The appellant married Shri Khader Kunjumuhammed, a pensioner of the erstwhile Dock Labour Board, on 18.9.1994. The pensioner expired on 18.9.1998 and since his first wife Smt.Haleema predeceased him on 20.9.1993, pension was discontinued with effect from 19.9.1998. In the year 2005, the appellant, who was the second wife of the pensioner, submitted application before the Cochin Port Trust (Dock Labour Division) for getting family pension.

2. By a memo dated 28.8.2006, the 1st respondent directed the appellant to produce certain documents. Alleging that, in spite of production of sufficient documents, no final orders have been communicated on the claim for family pension, the appellant had approached this Court in W.P.(C)No.30281/2009. The said Writ Petition was disposed of vide Ext.P1 judgment, directing the Cochin Port Trust to take a decision on the said application after W.A.No.556/14 -2- considering the documents produced by the appellant, within one month from the date of receipt of a copy of the judgment. Pursuant to the direction contained in Ext.P1 judgment, the 1st respondent by Ext.P2 informed the petitioner that her claim for family pension stands admitted subject to the production of a succession certificate from the appropriate court having jurisdiction for releasing 3,99,655/- being the family pension and DA arrears for the period from 19.9.1998 to 28.2.2010. The petitioner was directed to produce succession certificate in order to complete the attendant process for the grant of family pension and other consequential benefits.

3. On 24.1.2011, the appellant was disbursed with 2,40,854/- towards 50% of the arrears of family pension and thereafter, she is being paid with 50% of the monthly family pension and DA thereon. According to the appellant, it was not possible for her to produce succession certificate considering her old age and ailments and also due to non-co-operation of the children of her late husband born out of his first marriage with late Haleema. She could not also collect the present address of W.A.No.556/14 -3- those persons. The above facts were intimated to the 2nd respondent vide her letter dated 28.9.2012, with a request to release the entire arrears of family pension and also full monthly family pension, without insisting production of succession certificate. But, the 1st respondent by Ext.P3 again insisted the appellant to produce succession certificate in order to release the balance arrears and also full monthly family pension.

4. According to the appellant, in the year 2006 she was issued with Ext.P4 memo of the 1st respondent directing her to produce certain documents in order to consider her claim for family pension. Ext.P4 memo was followed by Exts.P5 and P6 memos, by which she was asked to submit the original of certain certificates/documents. Pursuant to Exts. P4 to P6, the appellant produced various documents, including Ext.P7 certificate issued by the President of Kadappuram Grama Panchayat certifying that Haleema, the first wife of pensioner died on 20.9.1993; Ext.P8 death certificate of the pensioner, who died on 18.9.1998; Ext.P9 marriage certificate, certifying that the marriage of the pensioner with the appellant was solemnised on 18.9.1994; Ext.P10 W.A.No.556/14 -4- identification certificate issued by the Tahsildar, Chavakkad, certifying that Salmabeevi, Selmabi and Selmabi (Ummuselma) mentioned in the election identity card, ration card and marriage certificate, respectively are the same person; Ext.P11 certificate issued by the Tahsildar, Chavakkad, certifying that the appellant has not remarried and is still continuing as widow; Ext.P12 ration card containing the name of the pensioner, his first wife Haleema and their children, daughter-in-law and grandchild.

5. The grievance of the appellant is that, in spite of all these documents, the 1st and 2nd respondents disbursed only 50% of the arrears of family pension and she is being paid with only 50% of the monthly family pension. In order to get full monthly family pension and also arrears of family pension, she has submitted Ext.P13 representation before the 2nd respondent. The medical certificate produced along with the said representation would show that she requires lifelong medications costing around 2,500/- per month. The pension payment order produced as Ext.P14 would show that only 50% of the monthly family pension is being paid to her. It was in such circumstances, the appellant W.A.No.556/14 -5- has approached this Court in W.P.(C)No.29316/2013 seeking an order directing the 2nd respondent to pay her all pensionary benefits without any reduction and for other consequential reliefs.

6. The learned Single Judge concluded that, the reasons assigned by the appellant to dispense with the production of succession certificate cannot be accepted and she will have to produce succession certificate as required by the 1st and 2nd respondents in case she has to obtain family pension at full rate. The learned Single Judge disposed of W.P.(C)No.29316/2013, by judgment dated 15.1.2014, directing the respondents to continue to pay the monthly family pension to the appellant at the rate at which she is now being paid pursuant to the decision in Ext.P2 and take a decision regarding her entitlement for full family pension in case she produces the succession certificate pursuant to the direction contained in Ext.P2.

7. It is aggrieved by the judgment of the learned Single Judge in W.P.(C)No.29316/2013, the appellant is before us in this Writ Appeal. By order dated 11.4.2011 in W.A.No.556/2014, this Court has directed the officer concerned in the Cochin Port Trust W.A.No.556/14 -6- to look into the relevant facts and materials and conclude on the eligibility, applying the Central Civil Services (Pension) Rules, 1972, and place a decision before this Court before 17.6.2014. Pursuant to the said direction, the Chairman of the Cochin Port Trust heard the appellant on 30.5.2014 and decided the matter based on Rule 54(7)(a)(ii) and (b) as follows;

"In the absence of succession certificate, a new claim from siblings of the first marriage cannot be ruled out. In the event of any difficulty to produce succession certificate, Smt. Salma Beevi should resort to legal procedure to obtain succession certificate. Therefore, in the above case, it is decided that 100% pension need not be recommended and the existing payment of 50% of pension is recommended to continue."

The above decision was placed on record by way of filing an affidavit on behalf of the 1st and 2nd respondents, dated 16.6.2014.

8. Heard the arguments of the learned counsel for the appellant, the learned Standing Counsel for the 1st and 2nd respondents and also the learned Assistant Solicitor General of India for the 3rd respondent.

W.A.No.556/14 -7-

9. The learned counsel for the petitioner contended that, so far none other than the appellant has approached the 1st and 2nd respondents claiming 50% of the family pension and the arrears of family pension withheld by them. The documents already on record are sufficient to hold that the appellant is legally entitled for full family pension on the death of the pensioner and the 1st and 2nd respondents cannot insist for production of succession certificate by the appellant in order to disburse the full family pension together with arrears. Per contra, the learned Standing Counsel for the 1st and 2nd respondents contended that, going by the provisions under the Central Civil Services (Pension) Rules, 1972, the 1st and 2nd respondents are fully justified in demanding production of succession certificate by the appellant to disburse the full family pension together with arrears. In the absence of a succession certificate any claim from the children of the pensioner born out of his first marriage with late Haleema for 50% of the family pension payable on the death of the pensioner cannot be ruled out.

W.A.No.556/14 -8-

10. We have considered the rival submissions made at the Bar.

11. The sole issue which arises for consideration in this Writ Appeal is whether the 1st and 2nd respondents can insist production of succession certificate in order to disburse full family pension and arrears to the appellant.

12. It is not in dispute that late Khader KunjumUhammed, a pensioner of erstwhile Dock Labour Board was governed by the Central Civil Service (Pension) Rules, 1972 (hereinafter referred to as `the CCS (Pension) Rules'). Rule 54 of the CCS (Pension) Rules deals with payment of family pension. Going by Rule 54(2), on the death of a pensioner his family shall be entitled to family pension, the amount of which shall be determined in accordance with the rules. Rule 54(6) deals with the period for which family pension shall be payable. Going by Rule 54(6), as it stood prior to its substitution vide Government of India notification dated 8.6.2011, in the case of a widow or widower payment shall be made up to the date of death or re-marriage, whichever is earlier; in the case of a son payment shall be made until he W.A.No.556/14 -9- attains the age of 25 years; and in the case of an unmarried daughter payment shall be made until she attains the age of 25 years or until she gets married, whichever is earlier. Provided that, if the son or daughter of a Government Servant is suffering from any disorder or disability 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 25 years, the family pension shall be payable to such son or daughter for life subject to the conditions enumerated in Clauses (i) to (v) to the Proviso to Rule 54(6).

13. Rule 54(7) of the CCS (Pension) Rules deals with cases where family pension is payable to more widows than one. Rule 54(7)(a) and (b) read thus;

54(7)(a) (i) Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares.

(ii) On the death of a widow, her share of family pension shall become payable to her eligible child.

Provided that, if the widow is not survived by any child, her share of the family pension shall not lapse W.A.No.556/14 -10- but shall be payable to the other widows in equal share, or if there is only one such other widow, in full to her.

(b) Where the deceased Government servant or pensioner is survived by a widow but has left behind eligible child or children from another wife who is not alive, the eligible child or children shall be entitled to the share of family pension which the mother would have received if she had been alive at the time of the death of the Government Servant or pensioner.

Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows, ceasing to be payable, such share or shares shall not lapse, but shall be payable to the other widow or widows and/or to other child or children otherwise eligible, in equal shares or if there is only one widow or child, in full, to such widow or child.

14. Going by Rule 54(8), except as provided in sub-rule (7), the family pension shall not be payable to more than one member of the family at the same time. If a deceased Government servant or pensioner leaves behind a widow or widower, the family pension shall become payable to the widow W.A.No.556/14 -11- or widower, failing which to the eligible child. The family pension to the children shall be payable in the order of their birth and the younger of them will not be eligible for family pension unless the elder next above him/her has become ineligible for the grant of family pension. Going by Rule 54(9), where a deceased Government servant or pensioner leaves behind more children than one, the eldest child shall be entitled to the family pension for the period mentioned in Clause (ii) or Clause (iii) of sub-rule (6), as the case may be, and after the expiry of that period, the next child shall become eligible for the grant of family pension. Rule 54(14)(b) defines `family' for the purpose of CCS (Pension) Rules. Going by Rule 54(14)(b), as it stood prior to its substitution vide Government of India notification dated 8.6.2011, `family' means wife in the case of a male Government servant, or husband in the case of a female Government servant; a judicially separated wife or husband, such separation not being granted on the ground of adultery and the person surviving was not held guilty of committing adultery; son who has not attained the age of 25 years and unmarried daughter who has not W.A.No.556/14 -12- attained the age of 25 years, including such son and daughter adopted legally before retirement.

15. In the case on hand, Khader Kunjumuhammed, the pensioner, died on 18.9.1998. His first wife Smt. Haleema predeceased him on 20.9.1993, as evident from Ext.P7 certificate and the said fact is also admitted in the affidavit filed on behalf of the 1st and 2nd respondent, dated 16.6.2014. After the death of Smt.Haleema, the pensioner married the appellant on 18.9.1994, as evident from Ext.P9 marriage certificate. Ext.P12 is copy of a ration card containing the name of the pensioner, his first wife Haleema and their children, daughter-in-law and grandchild. Though the date of issuance of Ext.P12 ration card is not legible in the photocopy, a perusal of the said document would show that, as on the date of issuance of the ration card the pensioner (name shown as `Mohammed') and his first wife Haleema were aged 60 years and 55 years, respectively. The said document would further show that, except Sharafudeen and Sainudeen (Sl.Nos.10 and 11) all their children have already crossed the age of 25 years.

W.A.No.556/14 -13-

16. It is thus seen from the facts stated above that, on the death of the pensioner, the appellant who is the widow of the pensioner and the child eligible in terms of Rule 54(6), left behind by the pensioner out of his wedlock with late Haleema, are entitled for payment of family pension in equal shares. If, as on the date of death of the pensioner, he is not survived by any eligible child out of his wedlock with late Haleema, the appellant would be entitled for payment of family pension in full. Therefore, the entitlement of the appellant to receive full family pension depends upon the fact whether the pensioner is survived by any eligible child out of his wedlock with late Haleema. If the pensioner is survived by any such eligible child, the entitlement of the appellant would be limited to 50% of the family pension and she would be entitled to receive full family pension only on the family pension ceasing to be payable to such eligible child out of the wedlock of the pensioner with late Haleema, on such child attaining the age of 25 years, getting married, starts earning their livelihood, etc., as provided under Rule 54(6). W.A.No.556/14 -14-

17. By Ext.P2 the appellant was directed to produce succession certificate from the appropriate court in order to release the arrears of family pension and DA amounting to 3,99,655/- for the period from 19.9.1998 to 28.2.2010. Later, by Ext.P3 the appellant was informed that, due to non-production of succession certificate she will get only 50% of the arrears of family pension and 50% of the monthly family pension and DA thereon. In the impugned judgment, the learned Single Judge held that the appellant will have to produce succession certificate as required by the 1st and 2nd respondents in case she has to obtain family pension at full rate.

18. The family pension under Rule 54 of the CCS (Pension) Rules is in the nature of a welfare scheme framed to provide relief to the widow and children of a deceased employee or pensioner. In Jodh Singh v. Union of India and another (1980 (4) SCC 360), the Apex Court, interpreting Regulation 74 of the Pension Regulations for the Air Force, 1961, which deals with sanctioning of special family pension to the widow of an officer of the Indian Air Force, held that the special family W.A.No.556/14 -15- pension is admissible on account of the status of a widow and not on account of the fact that there was some estate of the deceased which devolved on his death to the widow. Where a certain benefit is admissible on account of status and a status that is acquired on the happening of certain event, namely, on becoming a widow on the death of the husband, such pension by no stretch of imagination could ever form part of the estate of the deceased. If it did not form part of the estate of the deceased it could never be the subject matter of testamentary disposition. Paragraphs 9 and 10 of the judgment read thus;

"9. Pension is a retirement benefit. It is admissible under the relevant rules on superannuation. It is payable on superannuation to the employee himself during his lifetime after retirement. Special family pension is not admissible to the employee but to the specified members of the employee's family and that too in the event of his death while in service or after his retirement as provided in the Regulations. It is in the nature of a compensation because the death was due to or hastened by either a wound, injury or disease which was attributable to Air Force service or the aggravation by Air Force service of a wound, injury W.A.No.556/14 -16- or disease which existed before or arose during Air Force service, etc. (see R.74). If death is not referable to any of the events mentioned in R.74, special family pension is not admissible. To compensate for death on account of hazards of service rendering dependents destitute that benefit of special family pension is conferred on certain persons having a certain status arising out of and directly attributable to relation with the deceased. Special family pension under R.74 is admissible, amongst others, to widow of an officer. It is not that the deceased gets pension or earns special family pension. It is the untimely death of the deceased, the process of death having been hastened or accelerated by the hazards of service that the widow who is rendered destitute is granted special family pension. Whether the widow qualifies for special family pension is to be determined by the sanctioning authority, the President in this case. The special family pension is admissible on account of the status of a widow and not on account of the fact that there was some estate of the deceased which devolved on his death to the widow.

10. Where a certain benefit is admissible on account of status and a status that is acquired on the happening of certain event, namely, on becoming a widow on the W.A.No.556/14 -17- death of the husband, such pension by no stretch of imagination could ever form part of the estate of the deceased. If it did not form part of the estate of the deceased it could never be the subject matter of testamentary disposition."

19. In Smt.Violet Issaac and others v. Union of India (1991 (1) SCC 725), the Apex Court, interpreting Rule 801 of the Railway Family Pension Rules, 1964, held that, the family pension is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee. Since, the rules do not provide for nomination of any person by the deceased employee during his life time for the payment of family pension, he has no title to the same. Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition. Paragraph 4 of the judgment reads thus;

"4. The dispute between the parties relates to gratuity, provident fund, family pension and other allowances, but this Court while issuing notice to the respondents confined the dispute only to family pension. We would therefore deal with the question of family pension only. Family Pension Rules, 1964, provide for the W.A.No.556/14 -18- sanction of family pension to the survivors of a Railway Employee. Rule 801 provides that family pension shall be granted to the widow/widower and where there is no widow/widower to the minor children of a Railway servant who may have died while in service. Under the Rules son of the deceased is entitled to family pension until he attains the age of 25 years, an unmarried daughter is also entitled to family pension till she attains the age of 25 years or gets married, whichever is earlier. The Rules do not provide for payment of Family Pension to brother or any other family member or relation of the deceased Railway employee. The Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee. The Rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family pension. Thus, no other person except those designated under the Rules are entitled to receive family pension. The Family Pension Scheme confers monetary benefit on the wife and children of the deceased Railway employee, but the employee has no title to it. The employee has no control over the family pension as he is not required to W.A.No.556/14 -19- make any contribution to it. The family pension scheme is in the nature of a welfare scheme framed by the Railway Administration to provide relief to the widow and minor children of the deceased employee. Since, the Rules do not provide for nomination of any person by the deceased employee during his life time for the payment of family pension, he has no title to the same. Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition."

20. Going by Rule 54 of the CCS (Pension) Rules, the Family Pension is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee or pensioner. The rules do not provide for any nomination with regard to family pension, instead it designates the persons who are entitled to receive family pension. Thus, no other person except those designated under the rules is entitled to receive family pension. The rules confer monetary benefit on the widow and children of the deceased employee or pensioner, but the employee or the pensioner, as the case may be, has no title to it and it does not form part of his W.A.No.556/14 -20- estate enabling him to dispose of the same by testamentary disposition. Family pension payable on the death of an employee or pensioner, who is governed by the CCS (Pension) Rules, to the widow and children of the deceased employee or pensioner is neither a debt nor a security of that deceased in respect of which succession certificate can be applied for under Section 372 of the Succession Act, 1925. Production of succession certificate cannot be insisted upon for receiving family pension as it is neither a debt nor a security of the deceased employee or pensioner.

21. For the reasons stated above, we cannot sustain the view taken by the learned Single Judge that, the appellant will have to produce succession certificate as required by the 1st and 2nd respondents in case she has to obtain family pension at the full rate and also to receive arrears of family pension in full. In the result, the judgment of the learned Single Judge is set aside.

22. We further hold that, the entitlement of the appellant to receive full family pension depends upon the fact whether the pensioner is survived by any eligible child, in terms of Rule 54(6) of the CCS (Pension) Rules, out of his wedlock with late Haleema. W.A.No.556/14 -21- If the pensioner is survived by any such eligible child the entitlement of the appellant would be limited to 50% of the family pension and she would be entitled to receive full family pension only on the family pension ceasing to be payable to such eligible child out of the wedlock of the pensioner with late Haleema, on such child attaining the age of 25 years, getting married, starts earning his/her livelihood, etc., as provided under Rule 54(6).

23. It is not in dispute that late Khader Kunjumuhammed was governed by the CCS (Pension) Rules. Going by Rule 54(12)

(a), as soon as the employee enters service, he shall give details of his family in Form 3 to the Head of Office. If the employee has no family, he shall furnish the details in Form 3 as soon as he acquires a family. As per Rule 54(12)(b), the employee shall communicate to the Head of Office any subsequent change in the size of the family, including the fact of marriage of his child. Rule 54(12) (c) mandates that as and when disability referred to in proviso to sub-rule (6) of Rule 54 manifests itself in a child which makes his/her unable to earn his/her living, the fact should be W.A.No.556/14 -22- brought to the notice of the Head of Office duly supported by Medical Certificate as prescribed under clause (c). This may be indicated in Form 3 by the Head of Office. Rule 54(12)(d) mandate further that the Head of Office shall, on receipt of the said Form 3 get it pasted on the Service Book of the employee concerned and acknowledge receipt of the said Form 3 and further communications received from the employee in this behalf. The Head of Office on receipt of communication from the employee regarding any change in the size of the family shall have such a change incorporated in Form 3. The details of family to be furnished by such employee in Form 3, in terms of Rule 54 (12) includes the name of the members of family, their date of birth, their relationship with the employee, etc.

24. Rule 81 deals with sanction of family pension and residuary gratuity on the death of a pensioner. Going by Rule 81 (1), where the Head Office has received an intimation regarding the death of a retired employee, who was in receipt of pension, he shall ascertain whether any family pension or residuary gratuity or both is or are payable in respect of the deceased W.A.No.556/14 -23- pensioner. Going by Rule 81(2)(A)(i), if the deceased pensioner is survived by a widow or widower who is eligible for the grant of family pension under Rule 54, the amount of family pension as indicated in the Pension Payment Order shall become payable to the widow or widower, as the case may be, from the day following the date of death of the pensioner. Clause (ii) to Rule 81(2)(A) mandates that, on receipt of a claim in Form 14 from the widow or widower, the Pension Disbursing Authority from whom the deceased pensioner was drawing his or her pension shall authorize the payment of family pension to the widow or widower, as the case may be. Rule 81(2)(B) deals with cases where the deceased pensioner is survived by child or children.

25. Therefore, once an application is made by the appellant claiming family pension, the 1st and 2nd respondents should have considered such application with reference to the details of family furnished by the deceased pensioner in Form 3, which contains, among other particulars, the date of birth of the members of his family and also the details of any child having disability referred to in the proviso to sub-rule (6) of Rule 54. If W.A.No.556/14 -24- as on 18.9.1998, the pensioner is not survived by any eligible child, in terms of Rule 54(6), out of his wedlock with late Haleema, the appellant would be entitled to receive full family pension. Therefore, the 1st and 2nd respondents will have to reconsider the entitlement of the appellant to receive full family pension from the day following the date of death of late Khader Kunjumuhammed in accordance with Rule 54(6), (7) and (12) read with Rule 81(2)(A)of the CCS (Pension) Rules.

26. Therefore, this Writ Appeal is disposed of directing respondents 1 and 2 to reconsider the entitlement of the appellant to receive full family pension with effect from 19.9.1998, as directed above, and take an appropriate decision, as expeditiously as possible, at any rate within a period of three months from the date of receipt of a certified copy of the judgment. If it is found that the appellant is entitled for full family pension, consequential monetary benefits shall be disbursed to her as expeditiously as possible, at any rate, within a period of three months from the date of such decision. W.A.No.556/14 -25-

Needless to say that while taking such decision, a reasonable opportunity of being heard shall be afforded to the appellant. It would be open to the appellant to produce heirship certificate issued by the Tahsildar or any other relevant documents before the 1st and 2nd respondents, in order to substantiate her contention that as on 18.9.1998, late Khader Kunjumuhammed was not survived by any eligible child in terms of Rule 54(6) of the CCS (Pension) Rules and that she is entitled for full family pension from the day following his date of death.

Sd/-

HARUN-UL-RASHID, JUDGE Sd/-

ANIL K.NARENDRAN, JUDGE dsn

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