Central Administrative Tribunal - Ernakulam
Saraswathi S vs Union Of India on 12 July, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH Original Application No. 180/01041/2014 Original Application No. 180/01047/2014 Original Application No. 180/01106/2014 Original Application No. 180/01132/2014 Original Application No. 180/00001/2015 Original Application No. 180/00013/2015 Original Application No. 180/00332/2015 Tuesday, this the 12th day of July, 2016 CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member Hon'ble Mr. E.K. Bharat Bhushan, Administrative Member
1. Original Application No. 180/01041/2014 -
1. Saraswathi S., aged 41 years, D/o. Late P. Subramanian, (Retd. HD.SER/VRR/Erode, residing at No. 43/60, LGGS Colony, Erode - 638 002.
2. E. Samiyathal, aged 63 years, D/o. Late P. Venkatachalam, (Retd. Driver), Erode, Residing at 19/1, Nehruji Street, Kollampalayam, Erode - 638 002.
3. Ramayal, aged 58 years, D/o. Late Kaithamalai, (Retd.
Gangmale, Tiruppur, Residing at No. 3/1, Thottipalayanm, Punchai Thalavapalayam (PO), Uthukuli - 638 751.
4. Laxmi, aged 60 years, D/o. Late A. Sengodan, (Retd.
Store Khalasi, Palakkad, Residing at 2-130, Puliankadu, Pudupalayam, Peria Agraharam, Erode - 638 008.
5. Manjula R., aged 43 years, D/o. Late Senniyappan K., (Ex. Driver/Erode), No. 11, Kumaran Street, Kollampalayam, Erode - 638 002. ... Applicants (By Advocate : Mr. T.C. Govindaswamy) Versus
1. Union of India, represented by the General Manager, Southern Railway, Head Quarters Office, Park Town PO, Chennai - 600 003.
2. The Asst. Divisional Finance Manager, Southern Railway, Palakkad Division, Palakkad - 9.
3. The Financial advisor and Chief Accounts Officer, Southern Railway, Head Quarters Office, Chennai - 600 003.
4. The Senior Divisional Personnel Officer, Southern Railway, Palakkad Division, Palakkad - 9.
5. The Secretary, Railway Board, Rail Bhavan, New Delhi - 110 001. . . . . Respondents [By Advocate : Mr. Thomas Mathew Nellimoottil]
2. Original Application No. 180/01047/2014 -
1. Samayammal Samiathal, aged 71 years, D/o. of late S. Tirumalai Gounder, Retd. Shunting Jamedar), Southern Railway, Erode, residing at No. 14/25, Vadakku Velliyampalayam, Solipalayam (PO), Aval Poondurai, Erode - 638 115.
2. Saraswathi S., aged 66 years, D/o. Late Senniappa Gounder, Retd. Ex. Shunter), Erode, Residing at No. 42, Nagoor, Natarajan Stret, Molagoundan Palayam, Erdoe - 638 002.
3. Nallammal, aged 80 years, D/o. Late Chengoda Chennimalai, (Ex. PM/Perundurai), Residing at No. 170, Srinivasa Rao Street, Vendipalayam, Erode - 638 002.
4. S. Pongiammal, aged 64 years, D/o. P. Karuppannan, (Retd. Shunter, S. Railway, Erode), Residing at M 787 TNHB Unit-II, Tannagar Cauvery PO, Erode - 638 007. . . . Applicants (By Advocate : Mr. T.C. Govindaswamy) Versus
1. Union of India, represented by the General Manager, Southern Railway, Head Quarters Office, Park Town PO, Chennai - 600 003.
2. The Asst. Divisional Finance Manager, Southern Railway, Palakkad Division, Palakkad - 9.
3. The Financial advisor and Chief Accounts Officer, Southern Railway, Head Quarters Office, Chennai - 600 003.
4. The Senior Divisional Personnel Officer, Southern Railway, Palakkad Division, Palakkad - 9.
5. The Secretary, Railway Board, Rail Bhavan, New Delhi - 110 001.
6. The Manager, Indian Bank, PB No. 1, 5-A, Gandhiji Road, Erode - 638 001.
7. The Manager, Indian Overseas Bank, No. 126, PARK Road, Erode - 638 003. . . . . . Respondents [By Advocates : Mrs. Sumathi Dandapani, Sr. Ms. P.K. Radhika (R1-5) & Mr. S. Easwaran (R6)]
3. Original Application No. 180/01106/2014 -
Sobhana V., aged 52 years, W/o. Late Gopalan Nambiar, (Ex-Keyman, Southern Railway), Palakkad Division, Residing at A.P. House, PO Thavam, Via Cherukunnu, Kannur District - 670 301. .... Applicant (By Advocate : Mr. U. Balagangadharan) Versus
1. The Senior Divisional Finance Manager, Southern Railway, Palakkad Division, Palakkad - 678 009.
2. The General Manager, Southern Railway, Headquarters, Park Town, Chennai - 600 003.
3. The Divisional Railway Manager, Southern Railway, Palakkad Division, Palakkad - 678 009.
4. Union of India, represented by Secretary, Railway Board, Railway Board, Rail Bhavan, New Delhi - 110 001.
5. The Secretary, Department of Personnel & Training, North Block, New Delhi - 110 001. . . . . . Respondents [By Advocates : Mrs. Sumathi Dandapani, Sr. Mr. Thomas Mathew Nellimoottil (R1-4) & Mr. T.C. Krishna, Sr. PCGC (R5)]
4. Original Application No. 180/01132/2014 -
Palaniammal, aged 58 years, (D/o. Late K. Subbaiyan, Ex-Gang Mate/Southern Railway/Unjalur), Residing at : No. 176, Palanigoundan Palayam, Main Street, Punjai Kilambadi, Erode - 638 154, Tamilnadu. .... Applicant (By Advocate : Mr. T.C. Govindaswamy) Versus
1. Union of India, represented by the General Manager, Southern Railway, Head Quarters Office, Park Town PO, Chennai - 600 003.
2. The Asst. Divisional Finance Manager, Southern Railway, Palakkad Division, Palakkad - 678 009.
3. The Financial advisor and Chief Accounts Officer, Southern Railway, Head Quarters Office, Chennai - 600 003.
4. The Senior Divisional Personnel Officer, Southern Railway, Palakkad Division, Palakkad - 678 009.
5. The Secretary, Railway Board, Rail Bhavan, New Delhi - 110 001.
6. The Manager, Canara Bank, 65/4, Solangapalayam, Mettu Street, Pasur - 638 154, Tamil Nadu. . . . . Respondents [By Advocates : Mrs. Sumathi Dandapani, Sr. Mr. Thomas Mathew Nellimoottil]
5. Original Application No. 180/00001/2015 -
S. Prema, aged 66 years, (D/o. Late R.D. Selvaraj, Ex-Fr. Chargeman/ Southern Railway/Erode), Residing at : Kumaran Street, 170, Sastri Nagar, Erode - 638 002. .... Applicant (By Advocate : Mr. T.C. Govindaswamy) Versus
1. Union of India, represented by the General Manager, Southern Railway, Head Quarters Office, Park Town PO, Chennai - 600 003.
2. The Asst. Divisional Finance Manager, Southern Railway, Palakkad Division, Palakkad - 678 009.
3. The Financial Advisor and Chief Accounts Officer, Southern Railway, Head Quarters Office, Chennai - 600 003.
4. The Senior Divisional Personnel Officer, Southern Railway, Palakkad Division, Palakkad - 678 009.
5. The Secretary, Railway Board, Rail Bhavan, New Delhi - 110 001.
6. The Manager, State Bank of India, Moolapalayam (12780), Erode - 638 002, Tamil Nadu. . . . . Respondents [By Advocates : Mrs. Sumathi Dandapani, Sr. Mr. Thomas Mathew Nellimoottil (R1-5) & Mr. S. Easwaran (R6)]
6. Original Application No. 180/00013/2015 -
K. Padmavathi, aged 55 years, W/o. Balan (late), Koorithodiyil House, Manjakkad, Shoranur II Village, Ottapalam Thaluk, Palakkad. .... Applicant (By Advocate : Mr. U. Balagangadharan) Versus
1. Union of India, represented by Secretary, Railway Board, Rail Bhavan, New Delhi - 110 001.
2. The General Manager, Southern Railway, Headquarters, Park Town, Chennai - 600 003.
3. The Chief Personnel Officer, Southern Railway, Headquarters, Southern Railway, Park Town, Chennai- 600 003.
4. The Senior Divisional Personnel Officer, Southern Railway, Palakkad Division, Palakkad-678 009. . . . . Respondents [By Advocates : Mrs. Sumathi Dandapani, Sr. Mr. Sunil Jacob Jose (R1-4)]
7. Original Application No. 180/00332/2015 -
G. Palani Ammal, aged 45 years, D/o. C.Gopal, Ex-Drainage G.man/ Palakkad, Residing at : Veppalaippatti, Kethureddippatti, Dharmapuri Dist - 635 303. .... Applicant (By Advocate : Mr. T.C. Govindaswamy) Versus
1. Union of India, represented by the General Manager, Southern Railway, Head Quarters Office, Park Town PO, Chennai - 600 003.
2. The Asst. Divisional Finance Manager, Southern Railway, Palakkad Division, Palakkad - 9.
3. The Financial advisor and Chief Accounts Officer, Southern Railway, Head Quarters Office, Chennai - 600 003.
4. The Senior Divisional Personnel Officer, Southern Railway, Palakkad Division, Palakkad - 9.
5. The Secretary, Railway Board, Rail Bhavan, New Delhi - 110 001.
6. The Manager, Indian Bank, Sillarahalli, Dharmapuri, Pin - 635 302. . . . . Respondents [By Advocates : Mrs. Sumathi Dandapani, Sr. Ms. K. Girija (R1-5)] These applications having been heard on 24.06.2016, the Tribunal on 12.07.2016 delivered the following:
COMMON O R D E R Hon'ble Mr. U. Sarathchandran, Judicial Member -
As these Original Applications involve the commonality of challenge against the respondent railway's act of discontinuance of family pension to the widowed/divorced daughters of the Railway pensioners / family pensioners on the ground that they bcame widows/divorced after the death of their parents, as agreed by the counsel for both sides, we have heard them together and a common order is being passed.
2. For the sake of convenience OA No. 1047 of 2014 is being taken as the leading case and the record thereof has been considered mutatis mutandis for the purpose of discussion in this common order.
3. All the applicants in these cases have been enjoying the family pension till the impugned Annexure A3 letter of authority. Annexure A/3 is based on Annexure A4 letter No. F(E) III/2007/PN1/5, dated 30.9.2014 which again is in concordance with OM No. 1/13/09-P&PW(E), dated 18.9.2014 of Department of Pension & Pensioners' Welfare, Ministry of Personnel, Public Grievances & Pensions, Government of India. The aforesaid OM issued by the Department of Pension and Pensioners' Welfare reads:
'Dated 18th September, 2014 Office Memorandum Eligibility of widowed/divorced daughters for grant of family pension - clarification regarding.
The undersigned is directed to refer to Ministry of Railways (Rail Board)'s OM No. F(E)III/2007/PN1/5, dated 28th August, 2014 on the above subject.
Provision for grant of family pension to a widowed/divorced daughter beyond the age of 25 years has been made vide OM dated 30.8.2004. 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 28.4.2011, that the family pension may be granted to eligible widowed/divorced daughters with effect from 30.8.2004, in case the death of the Govt.
Servant/pensioner occurred before this date.
It was further clarified vide OM dated 11 th September, 2013 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 fulfillment of other conditions, shall be entitled to family pension. The clarification was aimed at correctly interpreting the conditions of eligibility of a widowed/divorced daughter in terms of the concept of family pension under the CCS (Pension) Rule, 1972. It was also stated that it was only a clarification and the entitlement of widowed/divorced daughter would continue to be determined in terms of OM dated 25th /30th August, 2004 read with OM dated 28th April, 2011. It implies that the family pension should discontinue in those cases where it had been sanctioned in pursuance of these OM 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 was, therefore ineligible for family pension. It would be appropriate that in order maintain equality before law, family pension payable to such daughters is discontinued. However, recovery of the already paid amount of family pension would be extremely harsh on them and should not be resorted to.
This issues with the appropriate of Secretary (Pension) .' [underlining and bolding supplied] Annexure A1 has been issued by the Railway authorities directing the pension disbursing authority for discontinuance of the family pension payable to the applicants. It reads:
'No. P500/PGT/P/11352 Date : 06/11/2014
The Manager, Paying Unit - Indian Bank / Erode
Indian Bank P.B. No. 1,
5-A, Gandhiji Road, Erode - 638 001.
Through : FA&CAO/Pension/Chennai (HQ)
Sir/Madam,
Subject: Discontinuance of Family Pension in terms of Railway BD's OM
dated 18.09.2014 - case of Smt. Samayammal @ Samiathal widowed daughter of late S. Thirumalai Gounder, Ex. Shunting Jamedar, Erode. A/c. No. 6091098585.
Reference: This office PPO No. 0605111352, dated 11.04.2013.
LETTER OF AUTHORITY Railway BD vide OM dated 30.8.2004 have made provision for grant of family pension to a widowed /divorced daughter beyond the age of 25 years. It has since been clarified by Board vide RBE No. 99/2013 (PBC No. 122/2013) dt. 26.09.2013 that only those children who are dependent and meet other condition of eligible for family pension at the time of death of the Government servant or his / her spouse, which ever is later, are eligible for family pension.
The Board vide OM dated 18.09.2014 have ordered the discontinuance of pension payable to such daughters who are ineligible for Family pension in terms of the above letter. As the above named has become widow/divorcee after the death of the Pensioner / Spouse, she is not eligible for family pension.
Hence, the family pension authorised to Smt. Samayammal @ Samiathal w/d of late S. Thrumalai Gounder, Ex. Shunting Jamedar/Erode vide PPO No. 0605111352, dated 11.04.2013 is to be discontinued with immediate effect. Family pension so far paid need not be recovered. The Disburses portion of the PPO be returned early.
Sd/-
Asst Divisional Finance Manager, Palakkad.'
4. Similar directions for discontinuance of pension were issued by the Railway authorities in respect of the other applicants also. According to the applicants they are widowed/divorced daughters of the Railway Pensioner/Family Pensioner and after the death of their parents they became eligible for the continued grant of family pension on account of their status as widowed daughters/divorced daughters. The impugned orders of cessation of payment of family pension to the applicants was based on the aforementioned Government of India Annexure A4 OM which states that if the widowed/divorced daughter was leading a married life before the death of her father/mother she is ineligible for family pension.
5. According to the applicants the impugned orders have serious adverse civil consequences upon the applicants. They contend that the said orders are opposed to the principles of natural justice and are violative of the Constitutional guarantees enshrined in Articles 14, 16 and 300-A of the Constitution. The applicants state that the impugned orders are not based on relevant considerations and/or on relevant materials and suffer from errors of law and facts. They allege that the orders conferring them the benefit of family pension have not been recalled, varied or modified either by the Railway Board or by the Department of Pension and Pensioners Welfare and therefore, they are illegal and unsustainable. Above all the applicants contend that the impugned order are opposed to the statutory rules as Sub rule (6)(iii) of Rule 75 of Railway Services (Pension) Rules, 1993 amended by notification dated 23 th September, 2013 which provide that unmarried, widowed or divorced daughters are entitled to receive family pension until they starting earning a livelihood or until they remarry, without any maximum age limit. Therefore, according to the applicants, the Railway cannot by the impugned orders introduce new conditions through administrative instructions de hors the statutory rules. Since the amendment to Rule 75 was for the empowerment of women and to safeguard them from social evils and insecurity, Annexure A4 is ultra vires to the statutory rules and hence unconstitutional. It is also alleged by the applicants that Annexure A4 has not been preceded by any such consultation exercise with the Ministry of Finance and also with the Ministry of Law and Justice. Applicants being widowed/divorced daughters without any means of livelihood are at par with unmarried daughters and therefore, treating them differently with reference to the date of their attaining widowhood or date of divorce is opposed to the very object of granting family pension without any age limit and hence is liable to be interfered with by this Tribunal. Therefore, the applicants pray for quashing Annexure A4 and other impugned orders in these cases and to direct the respondents to continue granting the applicants the benefit of family pension till their death/re- marriage.
6. Respondents resisted these OAs contending that grant of family pension to divorced/widowed daughters of deceased employee is subject to certain conditions and the widowed/divorced daughters have to establish their dependance on the pensioner or his/her spouse prior to their death as clarified by Annexure A10 OM dated 11.9.2013 issued by the Department of Pension and Pensioners' Welfare. Respondents state that the applicants were married and were living with their husbands at the time of the death of the Railway pensioner/family pensioner and therefore, there is no justification for granting family pension to the applicants who became widow/divorced after the death of their parent-pensioners.
7. In the case of the applicant in OA No. 1106 of 2014 the applicant was a divorced daughter of the Railway pensioner who states that having been driven out by her husband she was totally dependent on the deceased Railway pensioner for a very long time before his death but her divorce was granted by the family court only after the death of her father. According to the respondents only if she was a divorcee at the time of the death of Railway employee and was dependant on him she could claim family pension after the death of the Railway pensioner/his/her spouse.
8. Respondents further state that the applicants in these cases have been granted family pension without noticing the fact that they became widow/divorcee after the death of the pensioner/his/her spouse and that the employer has a right to rectify the mistake. However, it is worth noticing that the impugned orders discontinuing family pension to the applicants specifically mention that no recovery need to be effected. The respondents pray for rejecting the OA as they have issued the impugned order of stopping family pension to the applicants in pursuance of the administrative instructions which are in harmony with the statutory provisions for granting family pension.
9. We have heard learned counsel appearing on both sides. Mrs. Kala T. Gopi, Shri T.C. Govindaswamy and Shri U. Balagangadharan, advocates appeared for the applicants in the different OAs. Mrs. Sumathi Dandapani, Sr. Advocate along with Mr.Sunil Jacob Jose, Thomas Mathew Nellimoottil, Mrs. Radhika and Mrs. Girija, appeared for the respondents and Mr. T.C.Krishna and S. Eswaran for the disbursing banks.
10. Family pension to the dependents of the deceased Railway servants is governed by Railway Services (Pension) Rules, 1993. We are dealing with the Railway Services (Pension) Rules, 1993 as amended in 2013 (hereafter referred to as Pension rules 1993). The Family Pension Scheme for Railway Servants, 1964 has been incorporated as Rule 75 in the 1993 Pension Rules. In the amended rule 75 the term 'Family'has been given the meaning as follows:
'(i) wife in the case of a male railway servant or husband in the case of a female railway servant;
(ii) 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;
(iii) 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'
11. Clause (iii) of sub rule (6) of Rule 75 deals with grant of family pension to unmarried or widowed or divorced daughters 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. ' The second proviso to sub rule (6) reads :
'Provided 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:-
(a) 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
(b) there is no disabled child eligible to receive family pension in accordance with the second proviso of this sub-rule ' The third proviso to sub rule (6) reads:
'Provided that such disabled siblings shall be eligible for family pension for life in the same manner and following the same disability criteria, as laid down in this rule in the case of son or daughter of the railway employees or pensioners suffering from any disorder or disability of mind (including mentally retarded) or physically crippled or disabled, so as to render him or her unable to earn a living even after attaining the age of twenty-five years.
Explanation 1.- An unmarried son or an unmarried or widowed or divorced daughter, except a disabled son or daughter become ineligible for family pension under this sub-rule from the date he or she gets married or 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 her re-marriage or by the disabled son or daughter or 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.
Explanation 5 .- Parent shall be deemed to be dependent on the railway servant if their combined income is less than the minimum family pension under sub-rule (2) of this rule and the dearness relief admissible thereon. Explanation 6.- Disabled sibling shall be deemed to be dependent on the railway servant if their income is less than the minimum family pension admissible under sub-rule (2) of this rule and dearness relief thereon. Explanation 7 .- Family pension payable to a childless widow shall be stopped if, after re-marriage, her income from all other sources becomes equal to or exceeds the amount of minimum family pension under sub-rule (2) of this rule and the dearness relief admissible thereon .' [Italics supplied]
12. Learned counsel for the applicant Ms. Kala T. Gopi submitted that the impugned orders Annexures A3 & A4 have been issued by the authorities in violation of the above quoted provisions of the Railway Services (Pension) Rules, 1993 which is the statutory rule having the status of a Rule framed under the proviso to Article 309 of the Constitution of India and therefore any deviation from the statutory rules by way of the administrative instructions in the aforesaid Annexure A4 OM is ultra vires the 1993 pension rules and hence the impugned orders require to be quashed and set aside.
13. Learned Senior Advocate Mrs. Sumathi Dandapani, referring to Annexure A5 OM issued by the Department of Pension and Pensioners Welfare, submitted that the Department of Pension and Pensioners Welfare of Government of India had relaxed the eligibility of widow/divorcee daughters in the matter of grant of family pension by doing away with their age limit of 25 years and that the requirement that they have to go back to the parental home for becoming eligible to the family pension. She submitted that Annexure A4 OM has been issued by the Government of India, in continuation of Annexure A5 OM wherein, the requirement that the widowed/divorced daughter should have had such status during the life time of the father/mother-whoever died later - for the purpose of becoming eligible for family pension, was provided. Learned Senior Advocate submitted that the Government of India decision in Annexure A5 was followed by the Railway Board in Annexures A6 and A7 letters of Railway Board. She submitted that dependency of widowed/divorced daughter on her father/mother who were the Railway pensioners is an important factor which is discernible even in the pension rules of 1993, amended from time to time. She submitted that a look at the aforequoted provisions in the pension rules reveal that earning an income of her own dis-entitles a divorced/widowed daughter from getting family pension if such income from other sources is equal to or more than the minimum family pension and dearness relief admissible thereon. The learned counsel has also submitted that since own income is an important factor for dis-entitling the widowed/divorced daughters from claiming family pension, dependency of such daughters on their parents forms an important consideration for determining their eligibility for family pension. We find some force in that argument because even though the aforequoted provisions of the pension rules do not specifically mention that the widowed/divorced daughter should be dependent on the parents for claiming family pension, exclusion of the daughters who have earnings of their own for their livelihood does indicate that the dependency on the parents is a strong factor which make the widowed/divorced daughters eligible for family pension. Therefore, the necessary concomitant situation in these cases is that in order to claim family pension, such daughters of the Railway pensioners ought to have had the status of widow/divorcee during the life time of their parent/s (father/mother) who was the Railway pensioner and was dependant on such pensioner for her livelihood. We are of the view that it is this dependancy which if persists even after the death of the parent, that makes the widowed/divorced daughters to yearn for the family pension for their future sustenance.
14. It was argued by the learned counsel for the applicant that family pension is a socio-economic measure for protecting the livelihood of hapless women who in our society are not taken care of by their relatives on becoming widows/divorcee. However, if one examines the background of each of the applicants in these cases it can be seen that they become widow/divorcee only after the death of their parents who were Railway pensioners. Many of the applicants became widows long after the death of their parents. Therefore, unless some restriction is imposed by emphasising on the dependency factor, there is a possibility that the grant of family pension will denigrate to the status of a hereditary right which will be antithetical to the equality clauses in Arts.14 and 16 of our Constitution. Family pension is a socio-economic measure to give public assistance to the really needy widows/divorcees from being subjected to 'undeserved wants' as envisaged in Art.41 of the Constitution. In the case of applicant No. 1 in OA No. 1047 of 2014, as could be seen from Annexure R1(a) application submitted by her to the Railway authorities for family pension, her father who was a Railway pensioner died in 1989 and she became a widow only in 2010. She has also candidly stated in the Annexure R1(a) application that she is dependent on her son Appu Swamy. One fails to understand how in such situations one can rely the provisions of the 1993 pension rules for grant of family pension in an unbridled manner, without proving that she was a widow who was totally dependent on the deceased railway pensioner before his death and that her continued sustenance requires the family pension received by her father with which he had been supporting her till his death. It was with a view to put a reasonable restriction on the misuse of the facility of family pension, Government of India through the Department of Pension & Pensioners Welfare has issued Annexure A4 OM which has been rightly followed by the Railway Board also.
15. In Annexure A4 we are unable to see any act which can be termed as ultra vires the statutory pension rules. On the other hand we are of the considered view that Annexure A4 OM is only facilitating the proper implementation of the provisions of family pension contained in 1993 pension rules and is intended to avoid the misuse of the facility by all the widow/divorced daughters of the deceased Railway pensioners without considering the factor of their dependency on the pensioners when they were alive. It is easily discernible in the case of other dependents like unmarried daughters, disabled persons and mentally retarded persons that such persons are the real dependents of the pensioners and that are persons who cannot afford to have the livelihood option of their own. Similarly, in the case of the parents of the pensioners who are alive at the time of the death of the pensioner it has been made clear that they are eligible for family pension only if they were totally dependent on the Railway pensioner during his life time.
16. Therefore, we are of the view that the omission to include the factor of dependency of the widowed/divorced daughters on the parent pensioner during his/her life time in the 1993 pension rules is immaterial and that Annexure A4 OM is not de hors but is only interpretative in nature, in consonance with the object of the family pension scheme in rule 75 of the pension rules of 1993. We hold that the condition mentioned in Annexure A/4 OM is already inherent in Rule 75 as amended in 2013. Annexure A/4 is an administrative instruction interpreting and bringing out the true import of the family pension for the widowed/divorced daughters. It is indeed a purposive interpretation of the rule for such daughters in order to ensure the real purpose of extension of family pension to the widowed/ divorced daughters and to bring in more equality among the most deserving persons for such financial help, rather than treating them unequally with other dependents like unmarried daughters. As observed above, it is perceivable in Rule 75 itself that dependancy is indeed a material factor for grant of family pension to members of the family other than the spouse of the pensioner.
17. Shri Govindaswamy learned counsel for the applicants submitted that Annexure A4 is violative of the principles enunciated in Section 21 of the General Clauses Act, 1987. It reads:
'21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws. - Where, by any (Central Act) or Regulations a power to (issue notifications), orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any (notifications,) orders, rules or bye-laws so (issued). True, executive orders or administrative instructions cease to have legal efficacy at the moment they are contrary to their superiors i.e. Constitution, a Statute or any delegated legislations in the form of rules or regulations. This is often referred to as 'domenian paramountency' [see Pradeep Kumar Maity v. Chinmoy Kumar Bhunia (2013) 11 SCC 122]. It is also well settled position that effect of clarificatory Government orders can by no means is to supersede or override the statutory material or other orders which they seek to clarify. As observed earlier, what Annexure A4 OM seeks to clarify is already inherent and is discernible in the provisions of Rule 75 of 1993 Pension Rules as amended in 2013. It can be seen that Annexure A4 OM was not issued to add, amend, vary, rescind any of the rights conferred under Rule 75 of the 1993 Pension Rules, as amended in 2013 in favour of the widowed/divorced daughters of the pensioner. [The Apex Court's decision in State of Jharkhand v. Pakur Jagran Manch - (2011) 2 SCC 591 explains how a Government order would not tantamount to add, amend, vary or rescind any of the orders or rules passed earlier]. Therefore, we are of the view that Section 21 General Clauses Act, 1987 has no application to Annexure A4 OM.
18. Mrs. Kala T. Gopi, Advocate for the applicants submitted that no notice was given to the applicants before the impugned orders withdrawing the family pension were issued by the respondents. She submitted that there is a violation of natural justice in the matter of the sudden discontinuance of the family pension which was enjoyed by the applicants till then. It is well settled position that the principles of natural justice cannot be applied in a strait jacket formula and the same will depend on the facts and circumstances of each case. It is also settled law that the principle of natural justice that no one shall be condemned unheard will have no application if no useful purpose is served by giving such opportunity. In this case the applicants have been enjoying family pension which was in fact not entitled to them on account of the lack of dependency on their parents, as they became widowed or divorced during only after the life time of the parent pensioner. Even if an opportunity of being heard was given to the applicants, the situation would not have improved.
19. We, therefore, hold that Annexure A4 and the impugned orders are not ultra vires the rules. We do not find any unconstitutionality or violation of any constitutional limitations in the impugned orders.
20. Mr. Balagangadharan, learned counsel appearing for the applicant in OA No. 1106 of 2014 submitted that the applicant in that case was forsaken by her husband since a very long time even during the life time of her father who was Railway pensioner but unfortunately the family court granted the decree for divorce only after the death of the father. Mr. Balagangadharan therefore prayed for considering the pathetic situation of the applicant and to treat her eligible for family pension as the divorced daughter of the pensioner. However, as the status of the applicant in that case as a divorcee has been declared only by the decree of the family court which was passed after the death of her father, we are of the view that her prayer for treating her as eligible for family pension cannot be granted.
21. We note that the impugned orders stopping family pension in favour of the applicants were stayed by this Tribunal by way of an interim order at the time of admission hearing. We feel that there is no need for continuance of that order any longer.
22. In the result the OAs are dismissed. The interim order passed in these cases will stand vacated. Parties are directed to suffer their own costs. Incorporate a copy each of this order in the files of the above captioned OAs (E.K. BHARAT BHUSHAN) (U. SARATHCHANDRAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER 'SA'