Gujarat High Court
Union Of India vs Rekhaben D/O Gopalbhai N Parmar on 22 December, 2021
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/1871/2021 ORDER DATED: 22/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1871 of 2021
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UNION OF INDIA
Versus
REKHABEN D/O GOPALBHAI N PARMAR
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Appearance:
MS ARCHANA U AMIN(2462) for the Petitioner(s) No. 1,2,3
SUNITA S CHATURVEDI(2572) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 22/12/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)
1. The present petition is filed under article 226 and 227 of the Constitution of India by the Union of India being aggrieved and dissatisfied with the order dated 31.08.2020 by the learned Central Administrative Tribunal, Ahmedabad in Original Application No. 255 of 2020. The main contention raised is that the impugned order passed by the Tribunal is erroneous as the respondent is not Page 1 of 17 Downloaded on : Wed Jan 12 13:40:37 IST 2022 C/SCA/1871/2021 ORDER DATED: 22/12/2021 entitled to get family pension in view of Rule 75 of Family Pension Scheme for Railway Servants, 1964.
2. The factual matrix is that Rekhaben who is daughter of deceased employee Gopalbhai N. Parmar, approached the railway authorities by making representation on 10.04.2018 with all required documents and requested to grant her family pension as divorced daughter of the pensioner since her father Gopalbhai N. Parmar was a railway employee. It transpires from the record that in response to the representation made by Rekhaben who is present respondent, the railway authorities asked for some more documents vide letter dated 18.05.2018 and in response to the said letter, present respondent Rekhaben submitted all the copies of necessary documents with the copy of the decree of the Court as well as the deed of customary divorce. However, the railway authorities by order dated 28.11.2019 rejected the representation made by Rekhaben - present respondent on the ground that as per the conditions stipulated in Railway Board's Instructions i.e. RBE No.102/2017 dated Page 2 of 17 Downloaded on : Wed Jan 12 13:40:37 IST 2022 C/SCA/1871/2021 ORDER DATED: 22/12/2021 23.08.2017, she was not found eligible.
2. It is also relevant to note that as her father was railway employee who had worked as DMS/1/GS/SBE and retired on 30.06.2003 on superannuation. He died on 17.07.2003. In his order for payment of pension the name of Rekhaben - present respondent was mentioned in the details of the family members. After the death of of her father, the widow of the deceased employee i.e. mother of Rekhaben - present respondent was paid family pension. Rekhaben was residing with her mother as dependent and subsequently got married on 22.05.2005. However, due to domestic problems the husband of Rekhaben deserted her and did not call her back to her matrimonial home. Rekhaben delivered a child and since her husband had deserted her, Rekhaben and her child were compelled to stay along with her mother as her dependent. Rekhaben belongs to such a community where customary divorce has been recognized and accordingly with the intervention of the elder members of the family, the customary divorce of Rekhaben and her husband had taken place. The customary divorce was declared on Stamp Paper of Page 3 of 17 Downloaded on : Wed Jan 12 13:40:37 IST 2022 C/SCA/1871/2021 ORDER DATED: 22/12/2021 Rs.100/- which was executed on 15.12.2008. Thereafter, Rekhaben and her child were staying with her mother and was dependent for financial support from her mother. The mother of Rekhaben expired on 27.06.2013.
3. After the death of her mother, Rekhaben had approached the railway authority and had requested to grant her family pension since she is divorced daughter of the pensioner. However, the railway authorities informed Rekhaben that customary divorce was not valid and asked her to obtain proper decree of divorce from the competent Court. Accordingly, Rekhaben filed for divorce petition under Section 13 of the Hindu Marriage Act being HMP No. 10 of 2005 before the Court of Principal Senior Civil Judge at Dahod. The said petition of Rekhaben was allowed and the marriage with her husband - Maheshbhai Kalubhai Baria was declared as dissolved vide order dated 29.04.2016 by the Principal Senior Civil Judge at Dahod. Thereafter, as mentioned hereinabove, Rekhaben made representation and thereafter she approached the Central Administrative Tribunal, Ahmedabad. The Tribunal, considered the Original Application No. 255 of 2020 filed Page 4 of 17 Downloaded on : Wed Jan 12 13:40:37 IST 2022 C/SCA/1871/2021 ORDER DATED: 22/12/2021 by Rekhaben - respondent herein and has also considered the judgment of this Court in the case of Union of India V/s Mayuriben Jani D/o Durgeshbhai Nandlal Jani dated 17.02.2020 and has allowed the Original Application No. 255 of 2020 vide order dated 22.10.2020.
4. We have heard Ms. Archana Amin, learned advocate for the petitioner - Union of India. She has submitted that in view of Rule 75 of the Family Pension Scheme for Railway Servants, 1964 the respondent herein Rekhaben is not entitled to get family pension since she is a divorced daughter. She further submitted that the order passed by the Central Administrative Tribunal is illegal and contrary to the clarifications given vide letter dated 29.10.2013 and therefore the order requires to be quashed and set aside. She has also submitted that the widow of the retired employee was getting pension till 27.06.2013 i.e. till the death whereas the first application for family pension was made on 10.04.2018 and therefore on the ground of delay itself the Tribunal ought not to have entertained Original Application. It is also contended that at the time of death Page 5 of 17 Downloaded on : Wed Jan 12 13:40:37 IST 2022 C/SCA/1871/2021 ORDER DATED: 22/12/2021 of the pensioner, the respondent Rekhaben was not fulfilling the condition of family pension as she has obtained the decree for divorce on 29.04.2016 and as per the Administrative requirement as mentioned in O.M. dated 19.07.2017 as well as letter dated 23.08.2017 of the Railway Board is not fulfilled. She has also submitted that the learned Tribunal has not properly appreciated the Rule 54 sub rule 6 (iii) of C.C.S. (Pension) Rules, 1972 which clearly provides that the family pension is payable to unmarried/widowed/divorced daughter until she gets married or remarried or until she starts earning her livelihood whichever is earlier. She has also submitted that the learned Tribunal has erred in relying upon the order of this Court dated 17.02.2020 in the case of Union of India V/s Mayuriben Jani as the facts of both the cases are different and therefore she has prayed to allow the present petition as learned Tribunal has erred in grating the application filed by the present respondent.
5. The respondent was served by notice and has appeared through Ms. Sunita Chaturvedi, learned Page 6 of 17 Downloaded on : Wed Jan 12 13:40:37 IST 2022 C/SCA/1871/2021 ORDER DATED: 22/12/2021 advocate for the respondent and has also filed affidavit. Ms. Chaturvedi, learned advocate for the respondent has submitted that the learned Central Administrative Tribunal has rightly considered the case of the present respondent and has passed legal and just order after considering the documentary evidence as well as the various circulars of the Railway Board. She has also submitted that the order passed by the railway authorities on 24.11.2009 by which the family pension is denied is not a speaking order and it only says that the respondent Rekhaben is not fulfilling the eligibility criteria. She has further submitted that the learned Tribunal has rightly adopted the view taken by the Bombay Highcourt in W. P. No. 6884 of 2016 decided on 03.04.2018 wherein it is held that RBE/O.M. stipulates the intention of Railway not to leave destitute women without any means of livelihood and directed to grant family pension to the daughter whose divorce took place by way of customary divorce and held that said application was dependent of deceased railway employee. She has also submitted that the learned lower court at Dahod has declared the marriage of Rekhaben with her husband Page 7 of 17 Downloaded on : Wed Jan 12 13:40:37 IST 2022 C/SCA/1871/2021 ORDER DATED: 22/12/2021 Maheshbhai Baria as dissolved and therefore the order passed by the learned Tribunal is just and proper and does not call for any interference by this Court.
6. In response to the affidavit-in-reply filed by the respondent, the petitioner through its Deputy Chief Material Manager, Western Railway has filed additional affidavit by mainly re-iterating Rule 75 of the Railway Services (Pension) Rules and contented that Rule 75 (6)
(iii) provides that family pension is payable to a divorced daughter until she gets married or remarried or until she starts earning her livelihood, whichever is earlier. In furtherance to that it is averred in additional affidavit that the Mamlatdar Office, Dahod has issued an income certificate in favour of the present respondent wherein it is clearly mentioned that annual income of the respondent from all the sources is Rs.95000/- per annum. It is further submitted that Department of Pension and Pensioners Welfare, Ministry of Personnel, Public Grievances and Pensions, Government of India has issued an Office Memorandum dated 30.08.2004 providing eligibility of Page 8 of 17 Downloaded on : Wed Jan 12 13:40:37 IST 2022 C/SCA/1871/2021 ORDER DATED: 22/12/2021 divorced/widowed daughter for grant of family pension. It is clearly mentioned therein that as per clauses (ii) and
(iii) of sub-rule (6) of Rule 54 of the C.C.S. (Pension) Rules, 1972 read with clause (b) of Department's O.M. 45/86/97-P&PW (A) Part I dated 27.10.1997 by which son and daughter including widowed/divorced daughter shall be eligible for grant of family pension till she/he attains the age of 25 years or upto the date of her/his marriage/remarriage, whichever is earlier (subject to income criteria to be notified separately). Reliance is also placed on Office Memorandum dated 30.08.2004 by which income criteria is mentioned which provides that son/daughter (including widowed/divorced daughter) shall not have an income exceeding Rs.2550/- per month from employment in Government, private sector, self employment etc. It is submitted that since the present respondent is earning Rs.7917/- per month as per the certificate issued by the Mamlatdar, respondent is not entitled to get the benefit.
7. During the course of hearing the respondent learned advocate Ms. Chaturvedi has produced the circular dated Page 9 of 17 Downloaded on : Wed Jan 12 13:40:37 IST 2022 C/SCA/1871/2021 ORDER DATED: 22/12/2021 23.08.2019 numbered as RBA No. 72/2019 issued by the Railway Board for simplification of procedure for grant of Family Pension in Railways which stipulates the dependency criteria for the purpose of family pension shall be the minimum pension along with Dearness relief thereof and in pursuance of Government's decision on recommendation of the 7th C.P.C., minimum family pension w.e.f. 01.01.2016 is Rs.9000/- per month and therefore dependency criteria for the purpose of considering entitlement for family pension shall be Rs.9000/- per month and dearness relief thereon. This document is produced only on the record of the present petition during the course of hearing by the learned advocate for the respondent and a copy of which is also provided to Ms. Archana Amin, learned advocate for the petitioner and after verifying the same from the concerned officer, Ms. Archana Amin, learned advocate for the petitioner has very fairly submitted that in view of this document dated 23.08.2019 issued by Railway Board the case of the present respondent is likely to be covered for the consideration of family pension as income criteria is Page 10 of 17 Downloaded on : Wed Jan 12 13:40:37 IST 2022 C/SCA/1871/2021 ORDER DATED: 22/12/2021 Rs.9000/- per month as respondent is earning Rs.7917/- per month as per the income certificate issued by the Mamlatdar, Dahod.
8. We have considered the above mentioned document dated 23.08.2019 in addition to the material available on record fo the present petition and heard learned advocates for both the sides and found that the Family Pension Scheme for Railway Servants, 1964 and particularly the Rule 75 (6) (iii) of the C.C.S. (Pension) Rules, 1972 provides that subject to second and third provisos, in the case of an unmarried or widowed or divorced daughter, until she gets married or until she starts earning her livelihood, whichever is earlier. We have also considered the fact that present respondent is staying with her mother as she got customary divorce and thereafter she also obtained the decree of divorce from the competent Civil Court in the year 2016.
9. The Central Administrative Tribunal has rightly relied upon the judgment renderred in the case of Union of India Page 11 of 17 Downloaded on : Wed Jan 12 13:40:37 IST 2022 C/SCA/1871/2021 ORDER DATED: 22/12/2021 V/s Mayuriben Jani D/o Durgeshbhai Nandlal Jani dated 17.02.2020 which reads as under:-
15. The provision of Rule 75 of the Family Pension Rules, in fact, is a benevolent piece of subordinate legislation and therefore it needs to be governed by the principles which required to be pressed into service for extending the benefit of the family pension to those who are in need thereof, as it is intended to benefit those family members who needs support. Bearing this proposition of law in mind, if one examines Rule 75 which is also in pari-materia with Rule 54 of the said Rules, would indicate that the family pension is available to the divorced daughter. The Rule does not recognized any further or other requirement to be eligible for receiving the family pension. The device in the form of guideline developed by the authorities and incorporated in Office Memorandum are, therefore, to be viewed as only facilitating tools to assess gauge and examine the cases of the divorced daughter to receive family pension on the basis of the eligibility. When the factum of customary divorce is well recognized by the provision of the Hindu Marriage Act with special emphasis upon Section 29(2), then perhaps rightly the author of Rule 54 Page 12 of 17 Downloaded on : Wed Jan 12 13:40:37 IST 2022 C/SCA/1871/2021 ORDER DATED: 22/12/2021 and/or Rule 75 have not thought it fit to qualify the word "divorced daughter" by making it conditional that the divorce has to be declared by the competent Court, else it would perhaps amounted to improve upon the provision of Hindu Marriage Act, which unequivocally recognizes the customary divorce as a valid divorce provided the same is permissible under the community and the circumstances. The question, therefore, arises as to whether the respondents in the instant case, were having any justification to insist upon the divorce decree from the competent Court and were they justified in declining to act upon the customary divorce factum which have remain unchallenged before the authority and which have been recorded by the Tribunal in its orders at length and elaborately.
Section 29(2) of the Hindu Marriage Act, read as under:
"Section 29(2):- Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act."
16. In other words, it can well be said that when the factum of Page 13 of 17 Downloaded on : Wed Jan 12 13:40:37 IST 2022 C/SCA/1871/2021 ORDER DATED: 22/12/2021 customary divorce in both the cases have not been challenged by the authorities. Their insistence for divorce decree only from the competent Court indicating valid dissolution of marriage would not be justified. The Court hasten to add here that this proposition on the valid premise that there exists no dispute qua customary divorce, in other words, the factum of applicants having a valid customary divorce deed when not under challenge and has accepted, then its mere authentication in the from of dissolution of marriage by the decree of the competent Court, in our view, would be improving the provision of the Hindu Marriage Act without any authority of law and the benefit, therefore, which are enuring under Rule 54 and Rule 75 when it is not qualified in any other manner would have to be accorded to the divorced daughter also.
17. As Bombay High Court has observed rightly in its judgment the important factor is the family in which the daughter is residing when the pensioner/recipient of the family pension dies. When the said factum has not been disputed in both the cases and when it is clearly recorded by the Tribunal as a fact that both the applicants were residing with the pensioner/recipient of the family pension, then the insistence for Page 14 of 17 Downloaded on : Wed Jan 12 13:40:37 IST 2022 C/SCA/1871/2021 ORDER DATED: 22/12/2021 dissolution of marriage by the competent Court only by way of decree, in our view, was not justified.
19. The petitioners are directed to see to it that the family pensions are accorded to the respondents from the date when they are entitled as per Rule 75 of the Rules and the payment be made on that basis as expeditiously as possible preferably within a period of 90 days from the date of receipt of copy of this order.
10. The factum is also not in dispute that the respondent Rekhaben had valid customary divorce deed by which the customary divorce had taken place in the year 2008. It also transpires that the competent Civil Court has passed order for granting decree for divorce to the respondent. I
11. In view of the provisions of Rule 75 of Family Pension Scheme for Railway Servants, 1964 and more particularly in view of the communication dated 23.08.2019 issued by the Joint Director of Accounts, Railway Board pertains to simplification of procedure for grant of family pension in railways whereby the dependency criteria for the purpose Page 15 of 17 Downloaded on : Wed Jan 12 13:40:37 IST 2022 C/SCA/1871/2021 ORDER DATED: 22/12/2021 of family pension shall be Rs.9000/- per month which is fixed w.e.f. 01.01.2016, therefore respondent is entitled to get family pension and it is also undisputed fact that as per certificate issued by Mamlatdar, Dahod the respondent is earning less than Rs.9000/- per month i.e. Rs.95,000/- per annum, and after considering every aspect of the matter we found no illegality in the findings rendered by the Learned Central Administrative Tribunal in the order dated 31.08.2020.
12. The respondent is eligible to get the family pension and accordingly is entitled to get the family pension. Hence, we find no error and infirmity in the order passed by the Central Administrative Tribunal, Ahmedabad in Original Application No. 255 of 2020 on 31.08.2020 and the respondent is entitled to get benefit of the family pension as a divorced daughter of the deceased employee.
13. Accordingly, the directions issued by the Tribunal to the present petitioner for payment of family pension is Page 16 of 17 Downloaded on : Wed Jan 12 13:40:37 IST 2022 C/SCA/1871/2021 ORDER DATED: 22/12/2021 found to be just and proper. Therefore, no interference is called for by this Court under the powers of article 226 and 227 of the Constitution of India.
14. The present petition is dismissed. Notice is discharged. No order as to costs.
(N.V.ANJARIA, J) (SANDEEP N. BHATT,J) SHRIJIT PILLAI Page 17 of 17 Downloaded on : Wed Jan 12 13:40:37 IST 2022