Madhya Pradesh High Court
Rajat @ Ronak vs The State Of Madhya Pradesh on 16 July, 2025
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 16th OF JULY, 2025
WRIT PETITION No. 6128 of 2023
RAJAT @ RONAK
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vivek Agrawal - Advocate for the petitioner.
Ms. Varidhi Pathak - Panel Lawyer for the respondent - State.
Shri Avinash Zargar - Advocate for the respondent No.4.
ORDER
By way of this petition, the petitioner has prayed a direction to the respondents for payment of pension and gratuity. The immediate cause of action is the legal heirship certificate dated 05.7.2022 issued by the Additional Collector in favour of the petitioner as well as the respondent No.4.
2. The petitioner is a 15 year old minor son of deceased government servant namely Smt. Kamini Luniya, who has expired on 10.04.2021 while in service. The dispute has arisen because the petitioner is living with his maternal uncle and is living separately from his father, who is impleaded as respondent No.4. Therefore, it is curious and unique case of a real father and son contesting for pensionary dues of deceased wife and mother respectively.
3. This Court vide order dated 09.07.2015 had directed the petitioner, his guardian or any other authorized family member so also the respondent No.4 to Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 2 remain personally present before this Court. Today the petitioner Rajat @ Ronak is present along with Shri Rajendra Kumar s/o Parusram Luniya, who is his maternal uncle. The respondent No.4 - Rahul Kaushal, who is father of the petitioner is also present in Court.
4. The undisputed facts are that the petitioner along with his mother was residing away from his father since around year 2019 and he has not resided with his father since then. His mother expired in the year 2021 during second wave of Covid-19 pandemic and the petitioner since 2019 is not in company of his father and is residing with his maternal uncles. Today the petitioner present in person has stated before this Court that he is comfortably living with his maternal uncles and he has no problem there and was uneasy with the proposition of going to reside with his father, though his father offered to take him and take good care of the petitioner. It appeared to this Court that because the petitioner is living away from father since last more than six years even during the lifetime of his mother, and as stated by him, he has been witness to the verbal and physical harassment meted out by his father to his mother, it appeared to this Court that the emotional bond between father and son has broken down. As the parties mutually submitted that the respondent No.4 (father) has instituted a case for getting custody of the petitioner before the competent Court, therefore, this Court refrainsfrom commenting further on the issue.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 35. The deceased mother of petitioner has left behind her only two Class-I legal heirs, i.e. the petitioner and respondent No.4 and it is undisputed position that the petitioner had filed a suit against the respondent No.4 based upon a will executed in his favour by his mother to the exclusion of respondent No.4. The said will has been proved in Civil Suit No.86-A/21 by the Court of Second Civil Judge, Junior Division, Aashta, District Sehore (M.P.) vide judgement and decree dated 28.08.2024. Undisputedly, his Civil Appeal under Section 96 is pending before the concerned Appellate Court and therefore, this issue need not be dilated further.
6. All the other retiral benefits except gratuity and family pension have already been paid to the petitioner and are in a fixed deposit till the petitioner attains majority. The adjudication of these dues is not the subject matter before this Court, and may depend as per the judgment to be delivered by the Appellate Court wherein the validity of will as upheld by the Civil Court vide judgement and decree dated 28.8.2024 passed in RCSA No. 86/2021, decided by IInd Civil Judge Junior Division, Ashta, Distt. Sehore (MP) has been challenged.Therefore, this Court restricts itself to be question of family pension and gratuity.
Gratuity
7. So far as Gratuity is concerned, it is estate of the deceased and has to be paid to the Class-I heirs, and in their absence, to the Class-II heirs. As the respondent No.4 has been excluded by will of the deceased Government Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 4 servantand will has been duly proved before the Civil Court, it will be proper that the petitioner be paid 100% of Gratuity immediately.
Family Pension
8. In respect of family pension, respondent No.4 present in person stated that family pension be paid to him, while the petitioner may seek compassionate appointment whenever he becomes major and the respondent No.4 has no objection to that. It was vehemently argued by counsel for respondent No.4 that family pension does not depend on the pensioner being Class-I successor or not. It is to be paid to the eligible dependent, and cannot be bequeathed as it is not an "estate" of the deceased. as per the Pension Rules in view of Division Bench judgement of this Court in case of Sundariya Bai Choudhary Vs. Union of India, reported in 2008 (2) MPLJ 321. Therefore, it has to be considered whether irrespective of the will of deceased, family pension would be paid only to theentitled legal heirs.
9. As per M.P. Civil Services Pension Rules, Rule 47 relates to family pension and as per Rule 47(8)(ii), if the deceased government servant or pensioner leaves behind a widow or widower, the family pension shall become payable to the widow or widower, failing which to be eligible child. Therefore, bystrict construction of Rule 47(8)(ii) of the M.P. Civil Services Pension Rules 1976, the respondent No.4 seems entitled to receive family pension. However, it is undisputed in the present case that the respondent No.4 and the petitioner are living separately, though the respondent No.4 is biological father of Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 5 petitionerand there is bitterness between the parties. During the course of hearing, the petitioner had contended that he has passed Class 10th Examination with 91% marks and has taken admission in Class 11th in a school at Sonkutch, District Dewas. He is having 50% disability and as evident to this Court with open eyes, he has problem in walking and both the parties submitted that this is due to some deformity in his spinal cord. The disability is of such extent that the petitioner, who is an adolescent around 15 to 16 years of age, cannot even stand fully straight.
10. The family pension payable to the eligible dependents as per the Pension Rules, 1976 is not a pension to be paid only to one person, but it is captioned as 'family pension'. The pension is for the benefit of surviving spouse of the government servant as well as to his or her children. It is a unique case where the biological child of the government servant is living away from his biological father and that too, as per her own wish as expressed by him before this Court today. As already noted in para-4 above, due to the marital discord during lifetime of his mother, the emotional bond between father and son has broken down. He and his mother were living with his maternal uncles even when his mother was alive.
11. The requirement of the petitioner for money at this stage of life cannot be denied and it is clear that looking to the bitterness between the parties, if family pension is paid solely to the father, then the petitioner would not derive any benefit out of the same and the very purpose of family pension Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 6 would be frustrated. As per Rule 47(8), the family pension is payable to the spouse and failing which, to the eligible child. The spouse till his/her death orre-
marriage and the child till attaining the age of 25 years are entitled to get family pension and the child if on account of any disability is unable to earn his living, then he is entitled to get continue payment of family pension even thereafter.
12. At this stage, it cannot be considered whether the petitioner would be having right to claim family pension even beyond the age of 25 years, because at present the petitioner is 15 years of age and it cannot be predicated at this stage whether looking to his disability, whether he will be able to earn his living even after attaining adulthood/age of 25 years, or not. That issue will crop up only once the petitioner approaches or nears the age of 25 years.
13. Rule 47 of the M.P. Civil Services Pension Rules, 1976 providesas under:-
47. Contributory family pension.-(1) The provisions of this rule shall apply :
(a) to a Government servant entering service in a pensionable establishment on or after 1st April, 1966; and
(b) to a Government servant who was in service on 31st March, 1966 and came to be governed by the provisions of the Family Pension Scheme for State Government Employees, 1966 contained in Government of Madhya Pradesh Finance Department Memo No. 1963/C.R. 903-IV-R.II, dated 17th August, 1966 as in force immediately before the commencement of these rules.
(2) [Without prejudice] [Substituted by Notification No. 25-9-
96-PWC-IV, dated 28-9-1996 (w.e.f. 31-3-1979).] to the provisions contained in sub-rule (3), where a Government servant dies-
[(a) while in service provided he had been medically examined and found fit for appointment under the Government.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 7(b) after retirement from service and was on the date of death in receipt of a pension or compassionate allowance, referred to in Chapter V [x x x] [The words and figures, 'other than the pension referred to in Rule 34', omitted by Notification No. 25-18-97-PWC-IV, dated 28th November, 1997; (w.e.f. 20- 5-1997).] on the date of death, the family of the deceased shall be entitled to a contributory family pension (hereinafter in this rule referred to as Family Pension) the amount of which shall be determined as follows :-
Pay of Government Amount of monthly family
servant pension
(1) (2)
30 per cent of pay subject to
(i) Below Rs. 400. a minimum of Rs. 60 and a
maximum of Rs. 100.
Rs. 400 and above 15 per cent of pay subject to
(ii) but not exceeding a minimum of Rs. 100 and a
Rs. 1200. maximum of Rs. 160.
12 per cent of pay subject to
(iii) Above Rs. 1200. a minimum of Rs. 160 and
maximum of Rs. 250.
(2A) The amount of family pension shall be fixed at monthly fates and be expressed in whole rupees and where the family pension contains a fraction of a rupee it shall be rounded off to next higher rupee provided that in no case family pension in excess of the maximum [prescribed] [Substituted by Notification No. FB-6-1-77- R-II-IV, dated 2-5-77 (w.e.f. 8-7-1977).] under this rule shall be allowed.
(3)(a) [Where a Government servant] [Substituted by Notification No. B-25-9-96-PWC-IV, dated 18-10-1996 (w.e.f. 1-1- 1986).], who is not governed by the Workman's Compensation Act, 1923 (No. 8 of 1923), dies while in service after having rendered not less than seven years continuous service, the rate of family pension payable to the family shall be equal to 50 per cent of the pay last drawn or twice the family pension admissible under sub-rule (2), whichever is less, and the amount so admissible shall be payable from the date following the date of death of the Government servant :-
(i)for a period of seven years; or
(ii)up to the date on which the deceased Government servant would have attained the age of 65 years had he survived, whichever period is less.Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 8
(b) [Where a Government servant] [Substituted by Notification No. B-25-9-96-PWC-IV, dated 18-10-1996 (w.e.f. 1-1-1986).] who is not governed by the Workmen's Compensation Act, 1923 (No. 8 of 1923) dies after retirement after having rendered not less than seven years continuous service, the rate of family pension payable to the family shall be equal to 50 per cent of the pay last drawn by the pensioner before retirement or twice the family pension admissible under sub-rule (2), whichever is less, and the amount so admissible shall be payable from the date following the date of death of the pensioner :-
(i) for a period of seven years; or
(ii) till the date on which the pensioner would have reached the age of 65 years had he remained alive, whichever period is shorter :
Provided that the amount of family pension shall not exceed the pension sanctioned to the Government servant at the time of retirement. In cases where the amount of family pension as admissible under clause (b) of sub-rule (2) of this rule exceeds the pension sanctioned at the time of retirement, the amount of family pension sanctioned under this sub-rule shall not be less than that amount. The term 'pension sanctioned at the time of retirement' shall mean 'the pension inclusive of the part of the pension which the retired Government servant may have commuted before death.'
(c)(i) Where a Government servant who is governed by the Workmen's Compensation Act, 1923 (No. 8 of 1923) dies while in service after having rendered not less than seven years continuous service, the rate of family pension payable to the family shall be equal to 50 per cent of the pay last drawn or one and a half times the family pension admissible under sub-rule (2) whichever is less.
(ii)Where a Government servant who is governed by the Workmen's Compensation Act, 1923 (No. 8 of 1923) dies after retirement after having rendered not less than seven years continuous service, the rate of family pension payable to the family shall be equal to 50 per cent of pay last drawn by the Government servant or one and half times the family pension admissible under sub-rule (2), whichever is less.
(iii)The family pension so determined under sub-clause (i) or (ii) shall be payable for the period mentioned in clause (a) or clause (b) as the case may be :
Provided that where a compensation is not payable under the aforesaid Act, the Head of Office shall issue a certificate to the Audit Officer to the effect that the family of the deceased Government Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 9 servant is not eligible for any compensation under the aforesaid Act and the family shall be paid family pension on the scale and for the period mentioned in clause (a).
(d) After the expiry of the period referred to in clause (a) or
(b), the family, in receipt of family pension under those clauses or clause (c), shall be entitled to family pension at the rate admissible under sub-rule (2).
(4) Families of Government servants who die as a result of the "Risk of Office" or "Special Risk of Office", as defined under Madhya Pradesh Civil Services (Extraordinary Pension) Rules, 1963 will not be eligible to the benefits of family pension under this rule. Similarly the family of the Government servant entitled to extraordinary pension benefits under Madhya Pradesh (Police Personnel Extraordinary Family Pension) Rules, 1965, will not be entitled to the benefits of family pension under this rule.
[(5) xxx ] (6) The period for which family pension is payable shall be as follows:-
(i) in the case of a widow or widower, up to the date of death or remarriage whichever is earlier;
(ii) in the case of a son, until he attains the age of [21] [Substituted by Notification No. FB-6-1-79-N-II-IV, dated 26-10-79 (w.e.f. 1-4-1979).], years; and
(iii) in the case of an unmarried daughter, until she attains the age of [24] [Substituted by Notification No. FB-6-1-
79-N-II-IV, dated 26-10-79 (w.e.f. 1-4-1979).] years or until she gets married, whichever is earlier :
Provided that if the son or unmarried 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] [Substituted by Notification No. B-25-18-95-PWC-IV, dated 22-6-96 (w.e.f. 9-11-1994).] the family pension shall be payable to such son or unmarried daughter for life subject to the following conditions, namely :-
(a) If such son or unmarried daughter is one among two or more children of the Government servant, the family pension shall be initially payable to the minor children in the order set out in sub-rule (6) of this rule until the last minor child attains the age of [25 years] [Substituted by Notification No. B-25-18-
95-PWC-IV, dated 22-6-96 (w.e.f. 9-11-1994).], as the case may be, and thereafter the Family Pension shall be resumed in favour of the son or unmarried daughter suffering from disorder Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 10 or disability of mind or who is physically crippled or disabled and shall be payable to him/her for life.
(b) 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 the following order, namely :-
(i) Firstly to the son, and if there are more than one son, the younger of them will get the family pension only after the lifetime of the elder;
(ii) Secondly, to the unmarried daughter, and if there are more than one unmarried daughters, the younger of them will get the family pension only after the lifetime of the elder;
(iii) The family pension shall be paid to such son or unmarried daughter through the guardian as if he or she was a minor;
(iv) Before allowing the family pension for life to any such son or unmarried daughter, the sanctioning authority shall satisfy that the handicap is of such a nature as to prevent him or her from earning his or her livelihood and the same shall be evidenced by a certificate obtained from a medical officer not below the rank of a Civil Surgeon setting out, as far as possible, the exact mental or physical condition of the child;
(v) The person receiving the family pension as guardian of such son or unmarried daughter shall produce [every five years] [Substituted by Notification No. FB-6-2-
83-R-II-IV, dated 12-4-83 (w.e.f. 19-8-1983).] a certificate from a medical officer not below the rank of Civil Surgeon to the effect that he or she continues to suffer from disorder or disability of mind or continues to be physically crippled or disabled.
[Explanation. - (a) Only that disability which manifests itself before the retirement or death of the Government servant while in service shall be taken into account for the purpose of grant of family pension under this sub-rule.
(b)A daughter shall become ineligible for family pension under this sub-rule from the date she gets married.
(c) The family pension payable to such a son or daughter shall be stopped if he or she starts earning his/her livelihood.
(d) In such cases it shall be the duty of guardian to furnish a certificate to the Treasury or Bank, as the case may be, every month Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 11 that (i) he or she has not started earning his/her livelihood; (ii) in case of daughter, that she has not yet married.] (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 cease to be payable.
(b) Where the deceased Government servant or pensioner is survived 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 death of Government servant or pensioner.
(c) Where a female Government servant is survived by a husband and an eligible minor child from the first husband the family pension will be paid to both in equal shares. In the absence of the second husband, share of his pension will be paid to his eligible minor child from deceased female Government servant.
(8)(i) 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.
(ii) If a deceased Government servant or pensioner leaves behind a widow or widower, the family pension shall become payable to the widow or widower, failing which to the eligible child.
(iii) If sons and unmarried daughters are alive, unmarried daughters shall not be eligible for family pension unless the sons attain the age of [25 years] [Substituted by Notification No. B-25-18-9S-PWC-IV, dated 22-6-1996 (w.e.f.
9-11-1994).] and thereby become ineligible for the grant of family pension.
(9) Where a deceased Government servant or pensioner leaves behind more children than one eldest eligible 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.
(10) Where family pension is granted under this rule to a minor, [it shall be payable to the guardian on behalf of the minor :
Provided that if the payment of Family Pension is objected by the minor or if it is expressed by the head of office of concerned department that it is not possible to get a suitable guardian the Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 12 amount of family pension of the minor shall be deposited in the saving bank account in the post office every month till he attains majority. The saving bank account shall be operated jointly by Collector and District Treasury Officer and from this account certain amount shall be disbursed every month to the minor for his education and livelihood. But disbursed amount under no circumstances shall be more than the amount of family pension payable every month. The whole of the balance amount of saving bank account shall be paid to the minor family pensioner when he attains majority and saving bank account shall be closed.
(11) In case both wife and husband are Government servants and are governed by the provisions of this rule and one of them dies while in service or after retirement, the family pension in respect of the deceased shall become payable to the surviving husband or wife and in the event of the death of the husband or wife, the surviving child or children shall be granted two family pensions in respect of the deceased parents subject to the limits specified below, namely :-
(a)(i) If the surviving child or children is or are eligible to draw two family pensions at the rate mentioned in sub-rule (3), the amount of both the pensions shall be limited to Rs. 500 (five hundred rupees) per mensem.
(ii)If one of the family pension ceases to be payable at the rate mentioned in sub-rule (3), in lieu thereof the pension at the rate mentioned in sub-rule (2) become payable, the amount of both the pensions shall also be limited to five hundred rupees per mensem;
(b) If both the family pensions are payable at the rate mentioned in sub-rule (2), the amount of two pensions shall be limited to two hundred and fifty rupees per mensem;
[(c)(i) If a person, who in the event of death of Government servant while in service, is eligible to receive family pension under this rule, is charged with the offence of murdering the Government servant or for abetting in the commission of such an offence, the claim of such a person, including other eligible member or members of the family to receive the family pension, shall remain suspended till the conclusion of the criminal proceedings instituted against him.
(ii)If on the conclusion of the criminal proceedings referred to in sub-clause (i) the person concerned :-
(a)is convicted for the murder or, abetting in the murder of the Government servant, such a person shall be debarred from receiving the family pension which shall be payable to other eligible member of the family, from the date of death of the Government servant;Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 13
(b)is acquitted of the charge of murder or abetting in the murder of the Government servant, the family pension, shall be payable to such person from the date of death of the Government servant.
(iii)The provisions of sub-clause (i) and sub-clause (ii) shall also apply to the family pension becoming payable on the death of a Government servant after his retirement.] (12)(a)(i) (i)As soon as a Government servant has completed one year's continuous service, he shall give details of his family in Form 3 [x x x] to the Head of Office.
[x x x]
(ii) If the Government servant has no family he shall furnish the details in Form 3 as soon as he acquires a family.
(b) The Government servant shall communicate to [x x x] the Head of Office, [x x x] any subsequent change in the size of his family, including the fact of marriage of his female child.
(c) [x x x]
(d) The Head of Office shall, on receipt of the said Form 3 paste it in the service book of the Government servant concerned and acknowledge receipt of the said Form 3 and all further communication received from the Government servant in this behalf.
(e) The [x x x] Head of Office, [x x x] on receipt of the communication from the Government servant regarding any change in the size of family shall incorporate such change in Form 3.
(13) The ad hoc increase in pension, sanctioned under Finance Department Memorandum No. 1294/R-1508/IV-R-H, dated the 21st May, 1965 as amended from time to time and ad hoc relief sanctioned under Finance Department Memorandum No. B-6-21-74-
R-II-IV, dated the 22nd May, 1975 shall not be admissible on the family pension granted under this rule.
(14) For the purpose of this rule-
(a) "continuous service" means all periods from the date of entry into pensionable service which counts for pension/gratuity admissible to the Government servant under these rules.
(b) "family" in relation to tire Government servant means-
(i) Wife or wives in the case of a male Government servant or husband in the case of a female Government servant, [xxx]. Where a female Government servant or a male Government servant dies leaving behind widower or widow and eligible child or children and the widower or the widow as the case may be, remarried before the death of the Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 14 Government servant, the family pension payable to a child or children in respect of the deceased shall be payable to the surviving person provided he or she is the guardian of such child or children. Where the surviving person has ceased to be guardian of such child or children, such family pension shall be payable to the person who is the actual guardian of such child or children.
(ii) son or an unmarried or widowed or divorced daughter till such son or daughter attains the age of 25 years or upto the date of his/her marriage/remarriage as the case may be, whichever is earlier, subject to the income criteria as prescribed by the State Government from time, to time.
(iii) the parents, provided they were wholly dependent on the Government servant when he she was alive and the deceased employee had left behind neither a widow nor a child subject to the dependency criteria as prescribed by the State Government from time to time;
(iv) son, unmarried or widowed or divorced daughter and parents, as the case may be, shall provide an annual Certificate of income/dependency Criteria as fixed by the State Government from time to time.
[x x x] [Note 1.- A posthumous child shall be entitled to family pension.
Note 2. - The application for inclusion of post-retiral spouse and child born out of the marriage after retirement of Government servant shall be made in Form 30.]
(c) "pay" means the emoluments as specified in Rule 30. (15) Nothing contained in this rule shall apply to-
(a) a re-employed Government servant who had retired before 1st April, 1966 from-
(i) civil service on retiring pension or superannuation pension, or
(ii) military service on retiring pension, service pension or invalid pension and who on the date of re-employment, had attained the age of superannuation applicable to the post in which he is re-employed;
(b) a military pensioner who has retired from military service on or after the 1st April, 1966, or retires from such service after the commencement of these rules, on retiring pension, service pension or invalid pension, and is re-employed in a civil service or post before attaining the age of superannuation.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 15(c) a Government servant who, on absorption in a service or post in or under a corporation or company wholly or substantially owned or controlled by the Government or any other body, incorporated or not, is sanctioned pension under rule 34.
14. In these unique circumstances, the pension rules recognize that during lifetime of spouse the pension will be paid to the spouse only and thereafter to be eligible child and even a preferential order of payment of family pension to children is laid down in Rule 47(6)(a)(b).
15. The Society is always dynamic, and this dynamism has been more prominent in the last few years, specially, after breaking down of joint families and strong family framework, or "kutumb", which was one of the strengths of Indian society. With advent of nuclear families and rapid urbanization, these types of disputes have cropped up, and will continue to crop up with more and more vigour in coming time. It is the need of the hour that the law keeps step with the changing time.
16. It is really unfortunate that the Central Government has taken cognizance of this issue, that where the wife dies while being in custody of children, and the surviving spouse (husband), though is entitled to family pension, is not ina position to take care of children. This leads to the child rights being affected adversely, and nothing else. The grown up matured adults were fighting out their matrimonial differences in their lifetime and are already grown up, while the children have to face the double jeopardy of losing their mother, that too, with whom they were living, and come to mercy of mother's relatives, Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 16 and also to be deprived of source of sustenance, by not getting family pension.
They cannot live with surviving parent (father), as emotional bond has broken down. Thus, they become orphans in true sense of the term, despite their one parent being alive. This is the sheer plight of children born to parents who in their lifetime, were having bitter matrimonial disputes.
17. The Central Government has enacted the Commissions for Protection of Child Rights Act 2005. The said law was enacted with the background that India participated in the United Nations (UN) General Assembly Summit in1990, which adopted a Declaration on Survival, Protection and Development of Children. India has also acceded to the Convention on the Rights of the Child (CRC) on the 11th December, 1992. CRC is an international treaty that makes it incumbent upon the signatory States to take all necessary steps to protect children's rights enumerated in the Convention. The UN General Assembly Special Session on Children held in May, 2002 adopted an Outcome Document titled "A World Fit for Children" containing the goals, objectives, strategies and activities to be undertaken by the member countries for the current decade. In the background of these facts, that the Central Governmentfound it expedient to enact a law relating to children to give effect to the policies adopted by the Government in this regard, standards prescribed in the CRC, and all other relevant international instruments.
18. This Court is surprised that the State Commission For Protection of Child Rights, Madhya Pradesh, which has been established under the Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 17 Commissions for Protection of Child Rights Act 2005, is indeed working, or is simply a white elephant, as this grave problem has not been noticed by either the Women and Child Development Department of Madhya Pradesh, nor by the State Commission For Protection of Child Rights, Madhya Pradesh. This is the last thing that had to have occurred in a State, that claims itself to be a Welfare State, and is bound by statutory framework to protect child rights,which is within the Constitutional norms, and part of basic human rights of the citizenry, that the State is duty bound to uphold and protect. This violation of Child rights is taking place in the State, and despite the Central Government having already woken up to this problem, nothing has happened in the State of M.P. to ensure that such children do not become destitute and orphans, despite not being so.
19. The Central Government has already issued amendment to CCS Pension Rules, 2021 by issuing O.M. No. No.1/1(1)/2023-P&PW (E), Govt. of India, Ministry of Personnel, Public Grievances and Pension Department of Pension and Pensioners' Welfare and has provided that the wife, if she is Government servant and facing marital discord, can request in her lifetime, that the pension be paid to her children only. In case of disabled children, the family pension can be paid to such child only, if the father is not the actual guardian.
For this, even the application of mother in her lifetime is not necessary. The said OM is as under :-
No.1/1(1)/2023-P&PW (E) Government of India Ministry of Personnel, Public Grievances and Pension Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 18 Department of Pension and Pensioners' Welfare *********** LokNayakBhawan, Khan Market, New Delhi, Dated the 1s January, 2024 Office Memorandum Subject: Amendment to CCS (Pension) Rules, 2021 - Allowing female Government servants/female Pensioner to nominate her child/children for family pension in precedence to her husband in the event of marital discord leading to filing of divorce proceedings in a Court of Law or filing of a case under Protection of Women from Domestic Violence Act or Dowry Prohibition Act or Indian Penal Code- reg.
The undersigned is directed to state that, as per the provisions of sub-rule (8) and sub-rule (9) of Rule 50 of CCS (Pension) Rules, 2021, if a deceased Government servant or pensioner is survived by a spouse, family pension is first granted to the spouse and the children and other family members become eligible for family pension, on their turn, only after the spouse of the deceased Government servant/pensioner becomes ineligible for family pension or dies.
2. This Department has been receiving a large number of references from Ministries/Departments, seeking advice as to whether a female Government servant/female Pensioner can be allowed to nominate her eligible child/children for family pension in place of her spouse in the event of marital discord leading to filing of divorce proceedings in a Court of Law or filing of a case under Protection of Women from Domestic Violence Act or Dowry Prohibition Act or under Indian Penal Code.
3. The matter has been examined in consultation with Ministry of Women and Child Development. Accordingly, it has been decided that in case divorce proceedings in respect of a female Government servant/female pensioner are pending in a Court of Law, or the female Government servant/female pensioner has filed a case against her husband under Protection Women from Domestic Violence Act or Dowry Prohibition Act or under Indian Penal Code, such female Government servant/Female Pensioner may make a request for grant of family pension after her death to her eligible child/children, in precedence to her husband and such request may considered in the following manner:
(a) Where, in respect of a female Government servant/female pensioner, divorce proceedings are pending in a competent Court of Law, or the female Government servant/female pensioner has filed a case against her husband under Protection of Women from Domestic Violence Act or Dowry Prohibition Act or under Indian Penal Code, the said Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 19 female Government servant/female pensioner, may make a request in writing to the concerned Head of Office to the effect that, in the event of her death during the pendency of any of the aforesaid proceedings, family pension may be granted to her eligible child/children in precedence to her spouse;
(b) In the event of the death of the female Government servant/female pensioner, who had made a request under clause (a), during the pendency of any of the aforesaid proceedings, the family pension shall be disbursed in the following manner, namely:
(i) Where the deceased female Government servant/female pensioner is survived by a widower and no child/children is eligible for family pension on the date of death of the female Government servant/female pensioner, family pension shall be payable to the widower.
(ii) Where the deceased female Government servant/female pensioner is survived by a widower with a minor child/children or a child/children suffering from disorder or disability of mind including the mentally retarded, the family pension in respect of the deceased shall be payable to the widower, provided he is the guardian of such child/children and if the widower ceases to be the guardian of such child/children, such family pension shall be payable to the child through the person who is the actual guardian of such child/children.
Where the minor child, after attaining the age of majority, remains eligible for family pension, the family pension shall become payable to such child from the date on which he/she attains the age of majority.
(iii) Where the deceased female Government servant/female pensioner is survived by a widower with a child/children who has/have attained the age of majority but is or are eligible for family pension, the family pension shall be payable to such child/children.
(iv) After the child/children referred to in clause (ii) and (iii) above cease to be eligible for family pension under Rule 50 of the CCS (Pension) Rules, 2021, family pension shall become payable to other child/children, if any, eligible for family pension.
(v) After all the children cease to be eligible for family pension under Rule 50 of the CCS (Pension) Rules, 2021, family pension shall become payable to the widower till his death or remarriage, whichever is earlier.
4. All Ministries/Departments are requested to bring the contents of this order to the notice of Controller of Accounts/Pay and Accounts Officers and Attached, Subordinate Offices and Autonomous bodies under them.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 205. In so far as the persons serving in the Indian Audit and Accounts Department are concerned, these orders are issued in consultation with Comptroller and Auditor General of India, as mandated under Article 148(5) of the Constitution of India.
6. Formal amendment to Rule 50 of the CCS (Pension) Rules, 2021 will be notified separately.
7. Hindi version will follow.
Sd/-
(Ravinder Kumar) Director
20. This is a case where mechanically the serial order given in M.P. Civil Services Pension Rules is going to adversely affect the substantive rights of the petitioner, who has been rendered a destitute, and an orphan without being so, and is at mercy of his mother's relatives. He cannot live with his father, as the emotional bond does not survive and unless that bond is revived, chances of father and son living together cannot be foreseen in near future.
21. There are certain fundamental rights and Constitutional rights guaranteed to children, that are as under :-
21A. Right to education.--The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.
39. Certain principles of policy to be followed by the State.--The State shall, in particular, direct its policy towards securing--
(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
45. Provision for early childhood care and education to children below the age of six years.--The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 21The petitioner was undisputedly below the age of 14 years when his mother expired in February 2021.
22. As per Article-13, all laws in derogation of fundamental rights shall be void to the extent of contravention of such fundamental rights. Article 13 is as under :-
13. Laws inconsistent with or in derogation of the fundamental rights.--
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,--
(a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.]
23. This Court has come across a blatant violation of fundamental rights of children as guaranteed under Article 21-A and various other Constitutional Rights. Constitution is will of the People, while the statutory laws are creatures of the Legislators. It is the will of people that has to prevail over everything else, which is the superior power in our Constitutional Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 22 scheme.InSC Advocates on Record Association Vs. Union of India, reported in 1993 (4) SCC 441, it was held as under :-
328. The Constitution of India which we have given to ourselves is the fundamental law of the land. The judiciary, under the Constitution, is designed to be an intermediary body between the people on the one side and the executive on the other. It belongs to the judiciary to ascertain the meaning of the constitutional provisions and the laws enacted by the legislature. In order to keep the executive/legislature within the limits assigned to their authority under the Constitution, the interpretation of laws is the proper and peculiar province of the judiciary.
Constitution is the "will" of the people whereas the statutory laws are the creation of the legislators who are the elected representatives of the people. Where the will of the legislature -- declared in the statutes -- stands in opposition to that of the people -- declared in the Constitution -- the will of the people must prevail. The Constitution of India provides for an elected President. House of people is elected. The State legislators are elected. Supreme Court Judges are not elected, they are appointed under the Constitution. So are other High Court Judges. Yet the Constitution gives unelected Judges a power -- called judicial review -- under which they may nullify unconstitutional acts of the executive and of the elected representatives of the people assembled in the Parliament and the State Legislatures. This conclusion does not suppose that the judiciary is superior to the legislature. It only supposes that the power of the people -- embodied in the Constitution -- is superior to both.
24. In case of conflict with fundamental rights, the State law is null and void to that extent, and has to be declared so. In the present case, the case has no such prayer to declare the relevant provisions of the MP Civil Services Pension Rules of 1976 ultra-vires. The Central Government has come alive to this and amended its laws (Pension Rules) so as to keep them in line with Constitutional Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 23 goals. However, the State of M.P. has still not woken up to realize the plight of children of parents with marital discord.
25. In this case, some directions need to be issued so as do to be justice between the parties because the situation has arisen, which is not contemplated by the Rules of 1976, because it is not contemplated under the Rules, 1976 that children born to the deceased Government Servant from the same spouse would not be living with their biological mother or father of the death of government servant. This is a situation, which was not even contemplated by the framers of the rules, but now is staring the society and the society cannot close its eyes, though the Government may have chosen to do so.
26. The will of the deceased mother of petitioner, which has been duly proved in Civil Court, clearly mentions in clause-6 thereof, that the petitioner shall be having sole rights to receive pension. This will has to be respected, so as to protect the Constitutional rights and fundamental rights of the minor petitioner. This is also as per the provisions engrafted by the Central Government in its Pension Rules i.e. CCS Pension Rules 2021.
27. In the opinion of this Court, since the entitlement of the petitioner to receive family pension is not in dispute and the entitlement of the respondent No.4 to receive family pension comes in dispute in view of will of the mother of petitioner, therefore, to meet the ends of justice, this Court deems it fit to grant liberty to the petitioner to challenge the vires of the relevant portion of Rule 47 of the Rules of 1976, to the extent it grants right to the respondent No.4 and to Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 24 get it brought in tune with the CCS Pension Rules 2021 as amended on 01.1.2024. As the State had not come out with any corresponding provisions, there was no question for the mother of petitioner to have submitted application before the State, and in her wisdom, had mentioned so in her will, that being duly proved, has to be respected. Therefore, this Court issues the following directions :-
(i) The petitioner shall be paid 50% of the family pension payable upon death of deceased mother of the petitioner.
(ii) Rest 50% shall be kept in fixed deposit by the State Government, and the petitioner is granted liberty to institute separate petition to challenge the vires of Rule 47 of the Rules of 1976 to the extent it violates the right of the petitioner to receive 100% family pension. In case such challenge is made within three months from today, then the rest 50% shall be subject matter to orders of this Court while hearing challenge to the vires. If no challenge is made within three months, then the rest 50% shall be paid to the respondent No.4.
(iii) As far as Gratuity is concerned,100% shall be paid to the petitioner forthwith.
iv)The petitioner will get family pension till he attains the age of 25 years and if he is unable to earn his livelihood even after the attaining the age of 25 years on account of physical disability, then he would be liberty to move application before the concerned authority of the State seeking continuation of payment of family pension as per provisions of Rule 47(6) of Rules of1976. In case family pension is continued to petitioner beyond the age of 25 years, then also, the arrangement as provided in para (ii) above shall apply.Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48 25
28. Let the arrears from the date of death of government servant till this date be released within two months from today and thereafter, monthly payment of pension shall be ensured without fail.
29. With the aforesaid directions, petition is disposed of.
(VIVEK JAIN) JUDGE rj Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 23-07-2025 14:41:48