Central Administrative Tribunal - Madras
Selvi Revathy vs M/O Railways on 10 January, 2020
1 OA 307/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
MADRAS BENCH
OA/310/00307/2019
Dated the 10th day of January, Two Thousand Twenty
CORAM : HON'BLE MR. T. JACOB, Member (A)
Selvi Revathy,
No. 34/16, 6th Cross Street,
New Colony, Chrompet,
Chennai 600044. ....Applicant
By Advocate M/s. Ratio Legis
Vs
1. Union of India rep by,
The General Manager,
Southern Railway,
Park Town, Chennai 600003.
2. The Senior Divisional Personnel Officer,
Chennai Division, Southern Railway,
Park Town, Chennai 600003.
3. The Assistant Personnel Officer/Settlement,
Chennai Division, Southern Railway,
Park Town, Chennai 600003. ....Respondents
By Advocate Mr. K. Vijayaragavan
2 OA 307/2019
ORDER
(Pronounced by Hon'ble Mr. T. Jacob, Member (A)) The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs :
"To call for the records related to the impugned orders i) No. M/P.353/CC/OA 1084/2017 dated 30.08.2017 by the 2 nd respondent &(ii) No.M/P.3/500/KMR/82-83/37 dated 12.01.2018 by the 3rd respondent and to quash the same and further to direct the respondents to extend mandatory family pension to the applicant with effect from 07.05.2007 with admissible interest and to pass such other order/orders as this Hon'ble Tribunal may deem fit and proper and thus to render justice."
2. The brief facts of the case as stated by the applicant are as follows:-
The applicant is the unmarried daughter of late K.M. Rajagopal, who retired from railway service on 30.04.1982 and died on 23.09.1997. Her mother was extended with family pension till 06.05.2007. Thereafter the applicant requested for family pension by representing repeatedly and when there was no response, the applicant represented under RTI Act, the same was responded vide letter dated 30.08.2016 through which the applicant was advised to contact the 3rd respondent with all the testimonials. Although the same was complied with vide representation dated 23.09.2016, nothing was materialised and, therefore, OA.1084/2017 was preferred, which was disposed of by this Tribunal at the admission stage and in response thereto, the orders dated 30.08.2017 & 12.01.2018 were passed rejecting the claim on the pretext that the applicant was earning her own livelihood by ignoring her representation dated 04.09.2017.3 OA 307/2019
Hence the applicant has filed this OA seeking the above reliefs inter alia on the following grounds:-
i. Denial of mandatory family pension is contrary to the statutory provisions and an act coupled with colourable exercise of authority which is non-est in law;
ii. In terms of letter No.F(E) III/98/PN1/4 dated 27.04.1998 circulated vide OM No. 45/51/97 - P & PW (E) dated 05.03.1998 Railway Board brought unmarried/ widowed/divorced daughters within the definition of family under the Pension Rules; the act of the respondents in not responding to the claim for family pension by the applicant on fulfilling all the requisite conditions is contrary to the legal principle and, therefore, unsustainable in law.
iii. In as much as the unmarried/divorced/widowed daughters were privileged to draw family pension even after crossing the age of 25 years vide Railway Board's letter No. F(E) III/98/PN1/4 dated 16.03.2005 and in the process such daughters however were not required to come back to her parental home as stipulated in para 2 (ii) of DoP&PW's OM dated 25.07.2001, the act of the respondents in not responding to the claim for enhanced family pension by the applicant is contrary to the legal dictum "Aequitas nunquam contravenit legem" and therefore the impugned act of the respondents is impermissible in law.
iv. The claim for family pension was made with reference to Railway Board's letter No. F(E) III/2007/PN1/5 4 OA 307/2019 dated 20.05.2011 made pursuant to the Office Memorandum No.1/13/09-P&PW (E) dated 28.04.2011 which clarified that subject to fulfilment of other conditions laid down therein, the widowed/divorced /unmarried daughter of a Government servant/Pensioner, will be eligible for family pension with effect from the date of issue of respective orders irrespective of the date of death of the Government servant/Pensioner, the act of the respondent is in gross violation of the said Railway Board's letter and hence is non est in law.
v. The demand for enhanced family pension was made with reference to the mandatory provision made under Rule 123 of the Indian Railways Establishment Code issued under Proviso to Art 309 of the Indian Constitution and therefore the impugned non consideration is liable to be set aside.
vi. Extension of family pension to the widowed / divorced / unmarried daughters was incorporated in Rule 75 of the Pension Rules on fulfilling certain conditions which are completely fulfilled by the applicant, the impugned act of denying enhanced family pension to the applicant is in gross violation of Rule 75 (6) (iii) of the Pension Rules and therefore untenable in law.
vii. In as much as the Government Contribution towards Provident Fund subscription by the applicant's father has been withheld, the respondents' liability shall be unconditional towards payment of pension/family pension to all the eligible class I legal heirs and therefore the act of the respondents in prompting the condition 'until starts 5 OA 307/2019 earning livelihood' is untenable in law.
viii. In the light of the facts that inclusion of widowed/ divorced/unmarried daughters was included within the definition for family for the purpose of extension of pension was recommended by the mandatory 5th Central Pay Commission and the same was accepted and implemented by the Government of India, the impugned non-
consideration is unsustainable in law.
3. The respondents have filed a detailed reply stating that in the year 2013, the Department of Pension and Pensioner's Welfare issued an Office Memorandum wherein it was clarified that the family pension was payable to the children, as they are considered to be dependent on the Government servant/pensioner or his/her spouse. 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 or his/her spouse whichever is later are eligible for family pension. In the year 2014, the Department of Pension and Pensioner's Welfare issued another Office Memorandum dated 18.09.2014 clarifying that "if a daughter became a divorcee/widow during the period when the pension/family pension was payable to her father/mother, such a daughter, on fulfilment of other conditions, shall be entitled to family pension". It was further clarified that the family pension should discontinue in those cases where it had been sanctioned in pursuance of these Office Memorandums but without taking into consideration that the widowed/divorced daughter was leading a married life at the time of death of her father/mother, whoever died later and 6 OA 307/2019 was therefore, ineligible for family pension. However, recovery of the already paid amount of family pension should not be recovered. Therefore, the family pension shall be payable to the widowed/divorced daughter, provided she is dependent on the deceased employee, at the time of death of the pensioner/family pensioner. The applicant in pursuance of the directions of this Tribunal,submitted a representation dated 23.09.2016, requesting grant of family pension on account of being the unmarried daughter of late K.M. Rajagopal.
who retired on 30.04.1982 and died on 23.09.1997. Further, her mother was getting family pension and she also expired on 06.05.2007. Moreover, she had submitted the required documents and proforma on 11.08.2015 and that her claim was not looked into. The representation dated 23.09.2016 and the documents submitted by her were considered and the genuineness of her claim was also verified. However, in view of the fact that she was earning more than Rs. 20,000/- per month, her request for family pension was rejected in terms of the Department of Pension and Pensioner's Welfare Office Memorandum 11.09.2013. Hence, the respondents pray for the dismissal of the OA.
4. Heard the learned counsel for the respective parties and perused the pleadings and documents on records.
5. The issue for consideration in this OA is whether the applicant being an unmarried daughter of the deceased Government employee, is eligible for family pension or not.
6. Admittedly, this is the second round of litigation before this Tribunal. The 7 OA 307/2019 applicant had earlier filed OA.1084/2017 praying for grant of family pension.
This Tribunal by order dated 12.07.2017 directed the respondents to consider and dispose of her representation dated 23.09.2016 in accordance with law. In compliance thereof, the representation of the applicant dated 23.09.2016 was considered and rejected by the respondents by order dated 30.08.2017.,
7. In regard to eligibility of unmarried daughters to family pension, Rule 54 sub rule 6 (iii) of CCS (Pension), Rule 1972 lays down the following:-
"The period for which family pension is payable shall be as follows:
...(iii) subject to second and third provisos, in the case of an unmarried or widowed or divorced daughter, until she gets married or remarried or until she starts earning her livelihood, whichever is earlier;
Provided also that the grant or continuance of family pension to an unmarried or widowed or divorced daughter beyond the age of twenty-five years or until she gets married or re-married or until she starts earning her livelihood, whichever is the earliest, shall be subject to the following conditions, namely:-
(i) the family pension shall be initially payable to the minor children (mentioned in Clause (ii) or Clause (iii) of this sub-rule) in the order set out in Clause (iii) of sub-rule (8) of this rule until the last minor child attains the age of twenty-five years;
and
(ii) there is no disabled child eligible to receive family pension in accordance with the second proviso of this sub-rule;
EXPLANATION 1, - An unmarried son or an unmarried or widowed or divorced 1. substituted vide GI, Dept of P. & P.W., Notification No. F. 1/33/2012-P&PW (E) dated the 27 December, 2012 published as- S.O. No. G.S.R. 938(E) In the Gazette of India dated the 27 December, 2012 '[daughter. except a disabled son or daughter shall] become ineligible for family pension under this sub-rule from the date he or she gets married or 8 OA 307/2019 remarried.
EXPLANATION 2. - The family pension payable to such a son or a daughter or parents or siblings shall be stopped if he or she or they start earning his or her 'or their livelihood.
EXPLANATION 3. - It shall be the duty of son or daughter or siblings or the guardian to furnish a certificate to the Treasury or Bank, as the case may be, once in a year that, (i) he or she has not started earning his or her livelihood, and (ii) he or she has not yet married or remarried and a similar certificate shall be furnished by a childless widow after 1. Substituted vide GI, Department of P. & P.W., Notification No. F. 1/33/2012P&PW (E) dated 27 December, 2012 published as S.O. No. G.S.R. 938 (E) in the Gazette of India dated the 27" December, 2012 [her re- marriage or by the disabled son or daughter or by parents] to the Treasury or Bank, as the case may be, once in a year that she or he or they have not started earning her or his or their livelihood.
EXPLANATION 4. - For the purpose of this sub-rule, a member of the family shall be deemed to be earning his or her livelihood if his or her income from other sources is equal to or more than the minimum family pension under sub-rule (2) of this rule and the dearness relief admissible thereon.
xxx xxx xxx (14) For the purposes of this rule,
- Xxx xxx xxx
2. See also GlD (23) below this rule (b) "family" in relation to a Government servant means -
(i) wife in the case of a male Government servant1 or husband in the case of a female Government servant.
3. The words "provided the marriage took place before the retirement of the Government servant" were deleted by 12th November, G.l., Dept. Of P & P. W., Notification No. 1/87/89-P. & P. W. (C), dated the 1990, published as S.O. No. 3269 in the Gazette of India, dated the 8 December, 1990. All post-retiral spouses are eligible for family pension from the date following the date of death of the pensioner even if the marriage is prior to the date of notification. [ * * * ] (ia) a judicially separated wife or husband, such separation not being granted on the ground of adultery 9 OA 307/2019
3. The words "provided the marriage took place before the retirement of the Government servant" were deleted by G.1, Dept. Of P & P.W., Notification No. 1/87/89-P. & P.W. (C), dated the 12th November, 1990, published as S.O. No. 3269 in the Gazette of India, dated the 8th December, 1990. All post -retiral spouses are eligible for family pension from the date following the dote of death of the pensioner even if the marriage is prior to the date of notification. [ * * * ] and the person surviving was not held guilty of committing adultery.
(ii) unmarried son who has not attained the age of twenty-five years and unmarried or widowed or divorced daughter, including such son and daughter adopted legally."
8. The Department of Pension and Pensioners' Welfare in Office Memorandum dated 11.09.2013 in paragraph [4] clarified that a child which is not earning equal to or more than the sum of minimum family pension and Dearness relief thereon is considered to be dependent on his/her parents.
Therefore, only those children who are dependent and meet other conditions of eligibility for family pension at the time of the death of the Government servant or his/her spouse, whichever is later, is eligible for family pension. The relevant Office Memorandum portion of the said order reads as follows:-
Office Memorandum dated 11th September, 2013 Sub: Eligibility of widowed/divorced daughters for grant of family pension - clarification regarding.
Provision for grant of family pension to a widowed/ divorced daughter beyond the age of 25 years has been made vide OM dated 30.08.2004. This provision has been included in clause (iii) of Sub-rule 54 (6) of the CCS (Pension), Rules, 1972. For settlement of old cases, it was clarified, vide OM dated 28.04.2011, that the family pension may be granted to 10 OA 307/2019 eligible widowed/divorced daughters with effect from 30.08.2004, in case the death of the Govt. Servant / pensioner occurred before this date.
2. This department has been receiving communications from various Ministries / Departments seeking clarification regarding eligibility of a daughter who became widowed/ divorced after the death of the employee/pensioner.
3. As indicated in Rule 54(8) of the CCS (Pension) Rules, 1972, the turn of unmarried children below 25 years of age comes after the death or remarriage of their mother/father, i.e the pensioner and his/ her spouse.
Thereafter, the family pension is payable to the disabled children for life and then to the unmarried/widowed/divorced daughters above the age of 25years.
4. It is clarified that the family pension is payable to the children as they are considered to be dependent on the Government servant/pensioner or his/her spouse. A child who is not earning equal to or more than the sum of minimum family pension and dearness relief thereon is considered to be dependent on his/her parents. 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 or his/her 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/her 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 fulfils all eligibility conditions at the time of death/ineligibility of her parents and on the date her turn to receive family pension comes.
5. As regards opening of old cases, a daughter if eligible, as explained in the preceding paragraph, may be granted family pension with effect from 30 th August, 2004. The position is illustrated through an example. Shri A, a pensioner, died in 1986. He was survived by his wife, Smt. B, a son Shri C and a daughter, Kumari D, the daughter being the younger. Kumari D married in 1990 and got widowed in 1996. Smt. B died in 2001. Thereafter, Shri C was getting family pension, being disabled and died in 2003. Thereafter, the family pension was stopped as Kumari 11 OA 307/2019 D was not eligible for it at that time. She applied for family pension on the basis of O.M dated 30th August, 2004. Since she was a widow and had no independent source of income at the time of death of her mother and on the date her turn came, she may be granted family pension. The family pension will continue only till she remarries or starts earning her livelihood equal to more than the sum of minimum family pension and dearness relief thereon.
6. This is only a clarification and the entitlement of widowed/divorced daughters would continue to be determined in terms of O.M, dated 25/30th August, 2004, read with OM, dated 28.04.2011.
A bare perusal of the provisions and OM would irrefutably and inarguably demonstrate and exemplify that such unmarried daughters were never to be considered as ineligible provided she fulfils all eligibility conditions.
9. In the instant case, the applicant has requested for family pension on account of being the unmarried daughter of late K. M. Rajagopal, Ex. Booking Superintendent, Mambalam, Madras Division who retired on 30.04.1982 and died on 23.09.1997 and further, her mother was getting family pension and she expired on 06.05.2007. The applicant has stated that she has submitted the required documents and Proforma on 11.08.2015 and her claim was not looked into. The respondents have considered her representation and the genuineness of the claim was also verified. In terms of the existing provisions of Railway Services (Pension) Rules, 1993, as amended from time to time, the son/daughter of a Government servant is eligible for family pension upto the date of his / her marriage/ re-marriage or till/ she starts earning or till the age of 25 years.
12 OA 307/2019Subsequently, orders were issued vide Office Memorandum dated 30.08.2004 making divorced/widowed daughters eligible for family pension, even after attaining the age limit of 25 years, subject to the fulfilment of certain conditions.
Further, the family pension to widowed/divorced/unmarried daughters above the age of 25 years, shall be payable only after the other eligible children before the age of 25 years, have ceased to be eligible to receive family pension and that there is no disabled child to receive the family pension. In the year 2013, the Department of Pension and Pensioners' Welfare, issued an Office Memorandum dated 11.09.2013 wherein it was clarified that the family pension was payable to the children, as they are considered to be dependant on the Government servant/pensioner or his/her spouse. Therefore, only those children who are dependent and meet other conditions of eligibility for family pension at the time of the death of the Government servant or his/her spouse, whichever is later, are eligible for family pension. The Department of Pension and Pensioners' Welfare in Office memorandum dated 11.09.2013 in paragraph [4] clarified that a child which is not earning equal to or more that the sum of minimum family pension and Dearness relief thereon is considered to be dependent on his/her parents.
Therefore, only those children who are dependent and meet other conditions of eligibility for family pension at the time of the death of the Government servant or his/her spouse, whichever is later, is eligible for family pension.
10. The Chief Staff and Welfare Inspector, who was deputed to look into the 13 OA 307/2019 genuineness of the claim of the applicant has submitted his report dated 23.08.2017 that the applicant was staying in a portion of her brother's property at 34/16, 6th Cross Street, New Colony, Chrompet, Chennai 44 which was gifted to all the sons. The said property is more than 10 grounds belong to her mother which was gifted to all the five sons, in which shops and apartments have been built. Further, she has income from Kaveripatinam property bequeathed by her parents. On enquiry with her family members, it is seen that she has income from Kaveripatinam property located in Krishnagiri district to the extent of Rs.
20,000/- per month. The 'no income certificate' from Tahsildar, Alandur is not correct as she has enough income. Further, the property details were not produced by the family also. Therefore, the claim for grant of family pension is found to be not genuine as the applicant was found to be getting regular income of Rs.20,000 which is more than the prescribed level of grant of income of family pension. Thus the very fact that there is a regular monthly income of Rs.20,00/- to the applicant which is more than the prescribed level of grant of income of family pension disentitles the applicant for any family pension.
11. Having regard to the above facts and circumstances of the case, the Circular issued by the Railways and Department of Pension and Pensioners Welfare's vide Office Memorandum dated 11.09.2013, the rejection of the claim of the applicant for family pension by the respondents vide impugned orders (i) No.M/P.353/CC/OA 1084/2017 dated 30.08.2017 by the 2nd respondent & (ii) 14 OA 307/2019 No.M/P.3/500/KMR/82-83/37 dated 12.01.2018 by the 3rd respondent does not warrant interference of this Tribunal.
12. In the circumstances, the OA is liable to be dismissed and is accordingly dismissed. No costs.
(T.JACOB)
Member(A)
/kam/ -01-2020