Central Administrative Tribunal - Delhi
Deepika Roy vs M/O Communications on 4 May, 2016
Central Administrative Tribunal
Principal Bench
OA No. 1578/2015
Order Reserved on: 19.04.2016
Order Pronounced on:04.05.2016
Hon'ble Dr. B.K. Sinha, Member (A)
Deepika Roy,
Age 24 years,
D/o late Sh. Ashim Bikash Roy,
R/o 26/85, Vishwas Nagar,
Dr. Ambedkar Gali No.10,
Shahdara, Delhi-32 -Applicant
(By Advocate: Ms. Vishi Sharma)
VERSUS
1. Government of NCT of Delhi,
Delhi Secretariat,
Through Chief Secretary,
Delhi-110002
2. Office of the Director,
Department of Post,
GPO, New Delhi-110001 -Respondents
(By Advocate: Mr. JP Tiwary)
ORDER
The applicant in the instant Original Application is aggrieved by failure on the part of the respondent organization to consider her application for grant of 50% of the pension and other post-retiral dues to her as the first born daughter of the first wife late Poornima Roy of the deceased employee Ashim Bikash Roy.
2. The applicant has prayed for the following reliefs:- 2
"i) Issue directions to the respondent and thereby release the 50% pension, Gratuity, Provident Funds and other monetary benefits to the Applicant being the legal heir of the Deceased Ashim Bikash Roy; or
ii) May issue direction to the respondent to appoint the applicant in the department on compassionate basis; or
iii) May pass such other and further order(s) which this Hon'ble Court deem fit and proper in the interest of justice.
3. The case of the applicant, in brief, is that she is offspring of the first wife of the deceased employee. She submits that her mother expired when she was aged 5 and, thereafter, the deceased employee married a second wife Smt. Sujata Roy from whom he begot a son Abhijit Roy. After the death of her grandmother, she was promptly evacuated from her house and forced to take shelter with her aunt (deceased employee's sister). The deceased employee expired on 12.09.2014. However, the nomination had been earlier made in the name of grandmother of the applicant. In 2010, it was changed after her death in favour of Sujata Roy, the second wife of the deceased employee. The grievance of the applicant is that she had been put to severe mental and physical torture by her step-mother. After the death of the deceased employee, 50% of the pension should have been given to her as alone surviving child from the first legal wedded wife Poornima Roy. Instead of that, the entire amount is being paid to the nominee Sujata Roy and her 3 step brother Abhijeet Roy. As per CCS (Pension) Rules, 1972, where a Government servant expires leaving behind one or more widows, the amount of pension and other benefits are to be divided in equal shares amongst the living widows and if there be eligible children from any other wife expired, the share of the deceased wife shall go to her eligible children. The applicant has submitted a provisional certificate from School of Open Learning, death certificate of the deceased employee Ashim Bikash Roy, an application to Director GPO New Delhi to stop payment of contribution Ambala Society in respect of deceased employee, Notice under Section 80 of CPC 1908 and reply from the respondents that the claim shall be settled in favour of nominee as given by the deceased employer as per Rule 50 1(b) of Pension Rules.
4. The respondents have filed a counter affidavit admitting that as per the service book of the deceased employee Ashim Bikash Roy, the applicant, whose date of birth is 03.10.1990, is daughter of the ex-official, while one Sujata Roy is wife of the deceased employee and one Abhijeet Roy is son. The respondents acknowledged the receipt of the legal Notice under 80 of CPC 1908, but as per the service book, the deceased employee Ashim Bikash Roy had nominated Sujata Roy for family pension, DCRG, 4 CGEIS, GPF etc. cancelling his earlier nomination which was in favour of his mother vide declaration dated 10.05.2011. In service record, there is no mention of first or the second marriage of the late official. Entitlements to benefits are subject to fulfillment of all the conditions contained in Rule 54(7)(b) of Pension Rules. As per Rule 51(1)(a) of Pension Rules, the gratuity shall be paid to person/persons on whom the right to receive the gratuity is conferred by means of the nomination. The respondents acknowledged the request of the applicant to withhold the benefits till disposal of the instant OA. Accordingly, no benefit has been paid to any of the parties nor has any of the party adduced succession certificate. In the service book, there is no mention of the first and second wife. No death certificate of Poornima Roy has been produced by the applicant. Hence, they have prayed for dismissal of the OA.
5. The applicant has filed the rejoinder application stating that as per Rule 54 of the Pension Rules, in case a deceased left behind one or more widows or one widow and children from another wife, if not alive, than family pension shall be paid in equal share. The applicant submits that primary issue involved in the present case is whether she is entitled for the family pension or not. 5 Therefore, question of jurisdiction of probate court does not arise and hence this Tribunal has jurisdiction to decide the issues involved in the present case. The applicant further submits that generally probate court decides the issue related to the share in the properties of the deceased which is not an issue in the present case. For this very reason, succession certificate is also not required in the present case. The applicant submits that the nomination is the only for receiving pension claims or the benefits to whom to be given after the death of the employee but that does not in any way imply that the claim of other legal heirs are not to be entertained. The applicant submits that family pension is a statutory benefit which is given to the widow and children in case of death of deceased employee by way of compensation. The applicant further submits in the rejoinder application that the death certificate of late Poornima Roy is available with her and can be submitted as and when required. The applicant further also submits that the applicant is entitled to family pension by virtue of OM dated 06.09.2007 of DoP&T. The applicant has also relied upon the OM dated 11.09.2013 of DoP&T in respect of eligibility of widowed/divorced daughter for grant of family pension. 6
6. The applicant has further placed reliance on the following series of decisions:-
7. I have carefully examined the pleadings of the parties as also the documents submitted by them and also listened oral submissions made by their respective counsels. The two issues that arise for our consideration are the following:-
(i) Whether under the present circumstances where the name of the mother of the applicant is not entered in the service book and there is no succession certificate, the respondents would be correct in awarding 50% of the pension in the instant case?
(ii) What relief, if any, can be granted to the applicant?
8. Insofar as first of the issues is concerned, where a Government servant dies while in service, the death gratuity shall be paid to his family in the meaner indicated in sub-rule(1) of Rule 51 at the rates given in the Table therein. For the purpose of greater clarity, we extract Rule 50(1)(b) of Pension Rules as below:-
"50. Retirement/Death Gratuity 1[(b) If a Government servant dies while in service, the death gratuity shall be paid to his family in the manner indicated in sub-rule (1) of Rule 51at the 7 rates given in the Table below, namely:-
Length of qualifying Rate of death
service gratuity
(i) Less than 1 ... 2 times of
year ... emoluments.
(ii) One year or
more but less ... 6 times of
than 5 years emoluments.
...
(iii) 5 years or
more but less 12 times of
...
than 20 years emoluments.
(iv) 20 years or ... Half of emoluments
more ... for every completed
... six-monthly period
of qualifying service
subject to a
maximum of 33
times of
emoluments.
(6) For the purposes of this rule and Rule 51, 52 and 53,
`family', in relation to a Government servant, means -
(i) wife or wives 7[including judicially separated wife or wives] in the case of a male Government servant,
(ii) husband, 7[including judicially separated husband] in the case of a female Government servant,
(iii) sons including stepsons and adopted sons,
(iv) unmarried daughters including stepdaughters and adopted daughters,
(v) widowed daughters including stepdaughters and adopted daughters,
(vi) father, including adoptive parents in the case of individuals whose personal law permits adoption,
(vii) mother, including adoptive parents in the case of individuals whose personal law permits adoption,
(viii) brothers below the age of eighteen years including stepbrothers,
(ix) unmarried sisters and widowed sisters including stepsisters,
(x) married daughters, and
(xi) children of a pre-deceased son.8
9. Rule 54 (7) of the Pension Rules provides as under:-
(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 the
family pension
shall become
payable to her
eligible child :
Provided that if the widow is not survived by any child, her share of the family pension shall not lapse but shall be payable to the other widows in equal shares, or if there is only one such other widow, in full, to her.
(b) Where the deceased Government servant or pensioner is survived by a widow but has left behind eligible child or children from another wife who is not alive, the eligible child or children shall be entitled to the share of family pension which the mother would have received if she had been alive at the time of the death of the Government servant or pensioner.
Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares shall not lapse, but shall be payable to the other widow or widows and/or to other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child.
(c) Where the deceased Government servant or pensioner is survived by a widow but has left behind eligible child or children from a divorced wife or wives the eligible child or children shall be entitled to the share of family pension which the mother would have received at the time of the death of the Government servant or pensioner had she not been so 9 divorced.
Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares, shall not lapse, but shall be payable to the other widow or widows and/or to the other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child.
(d) where the family pension is payable to twin children it shall be paid to such children in equal shares :
Provided that when one such child ceases to be eligible his/her share shall revert to the other child and when both of them cease to be eligible the family pension shall be payable to the next eligible single child/twin children."
10. A plain reading of the above position clearly provides that wife or wives including judicially separated wife or wives in the case of a male Government servant and unmarried daughters including stepdaughters and adopted daughters constitute family and are entitled to both pension and gratuity. In the instant case, I take note of the claim of the applicant that she is surviving child of the deceased legally wedded wife. The respondents, on the other hand, have denied the claim of the applicant on the ground that nomination has been made in favour of one Sujata Roy and her son Abhijeet Roy and has not been made in favour of said Poornima Roy, the deceased mother of the applicant and also that the applicant has not produced the marriage certificate of her mother. The applicant has, however, produced her School Leaving 10 Certificate which was issued on 04.08.2008 in respect of ID No. 20010028440 indicating date of birth as 03.10.1990 and no. of admission Register i.e. 5822. This certificate clearly mentions that the applicant is the daughter of deceased employee Asim Bikas Roy and deceased wife Poornima Roy. It needs to be stated here that not being nominated for pension does not conclusively provides that the applicant was not the child of the deceased employee from his earlier marriage. There could have been myriad reasons for the deceased employee not to have nominated the applicant including pressure from the second wife. Non-nomination does not establish lack of parentage.
11. I further take note of the fact that the deceased employee Asim Bikas Roy has earlier nominated his mother Lata Roy, but after her death, nomination was made in favour of her second wife Sujata Roy. The deceased employee had also submitted that he would provide information of any change being made in this. Here it is noteworthy to mention here that Sujata Roy, Deepika Roy (applicant herein) and Abhijeet Roy are all mentioned as members of the family. It is also noteworthy to mention that earlier nomination made on 10.06.1988 was made in favour of mother Lata Roy of the deceased 11 employee Ashim Bikash Roy. However, this nomination has been changed in favour of said Sujata Roy on 11.05.2011.
12. From the above, it is made abundantly clear that the applicant Deepika Roy is the daughter of the deceased employee Ashim Bikash Roy and late Poornima Roy as the school leaving certificate was made on the basis of the admission registered.
13. Of course, the death certificate of late Poornima Roy has not been produced. The applicant, however, offers to provide the same. The entries in the service book can be treated authentic insofar as members of the family are concerned. Thus, the applicant is admitted as a member of the family by the deceased employee Ashim Bikash Roy along with said Sujata Roy and their son Abhijeet Roy.
14. It is also an admitted fact that nomination has been changed from the name of late Lata Roy, mother of the deceased employee in favour of Sujata Roy in 2011, just prior to the death of the deceased employee. However, it is well acknowledged that nomination only indicates the right to receive the pension.
15. In case of Sarojini Amma v. Neelakanta Pillai reported in AIR 1961 Kerala 126, the Hon'ble Kerala High 12 Court held that a nominee in respect of a policy of life insurance, does not become the owner of the money, payable under the policy. He being only a receiver to receive the money from the insurance policy and not the owner thereof. He is, therefore, only allowed to collect it.
16. In Controller of Estate Duty, Madras v. Estate of Pitchai Thambi, 1976 TNLJ 393, the Hon'ble Madras High Court has held as under:-
"The effect of nomination is not to clothe the nominee with beneficial interest in the policy or the money payable thereunder, but to clothe him or her only with the power to receive the money under the policy from the insurer without or prejudice to the question of title to the money. Consequently it confers on the nominee a bare right to collect the policy money when the money becomes payable and by such nomination and the collection of the money the nominee does not become the owner of the money payable under the policy and he or she is liable to make it over to whomsoever entitled to the same under the law."
17. Had there been a 'will' executed by the deceased employee in favour of any of the parties to this dispute, the matter would have been different and 'will' would have taken a precedence. However, there is no such 'will' in the instant case. Therefore, it become clear from the afore judgments that insurance cases, nominee gets right to receive the amount and distribute the same to the heirs of the deceased in accordance with law of succession governing them.
13
18. In case of Sandhya vs. The Chief General Manager, [WP(C) No. 29894/2002 decided on 09.04.2012], the Hon'ble Madras High Court, after taking note of a series of decisions, has observed as under:-
"5. In the light of the aforesaid provisions and there being no divorce between the husband and wife even though they might be staying separately, the appellant husband would be entitled to the family pension in terms of the rules as noted aforesaid and the authorities, therefore, committed error in not granting family pension to the appellant relying upon the nomination made by the deceased wife of the appellant.
39. So saying, the Supreme Court in G.L.Bhatia's case (cited supra) set aside the orders passed by the Courts below, and allowed the appeal. From the above, it is evident that if the nomination made by a Government servant is contrary to the statutory provisions, the same would not operate. In this context, it is also useful to refer a decision of the Apex Court in Smt.Violet Issaac and others Vs Union of India and others, reported in 1991 (1) SCC 725, wherein one X was employed in railways. He died in harness. On his death, a dispute arose between the widow, his sons, daughters vis-a-vis the brother of the deceased, regarding disbursement of pension, gratuity, and other amounts payable by the railway administration. When an application was made by the widow of the deceased before the competent authority for grant of family pension, gratuity and other amounts, the railway authorities did not pay the amount, on the ground that an injunction order had been obtained by the brother of the deceased in a Civil Court restraining the widow from claiming or receiving any amount. Yet another fact in the reported case was that due to the strained relationship between the spouses, the railway employee had nominated his brother to receive the abovesaid amount and also executed a will in favour of his brother bequeathing, all his properties to him, including family pension, gratuity etc. The Civil Court granted an injunction. Widow, sons and daughters moved the Central Administrative Tribunal, Chandigarh, for a direction for a direction to release the amounts namely, gratuity, group insurance, provident fund, CTD account, and family pension. On an application made by them, the suit pending before the Civil Court was transferred to the Tribunal. Before the Tribunal, the genuineness of the will was raised. Finding that the dispute related to rival claims based on title arising from relationship in one case and from a will on the other, the Central Administrative Tribunal held that it has no jurisdiction to decide the same 14 and therefore, redirected the transfer of suit to the Civil Court for proper adjudication. Being aggrieved by the same, widow, sons and daughters moved the Supreme Court. Though the dispute between the parties related to gratuity, provident fund, family pension and other allowances, the Apex Court confined the adjudication only to family pension, and after referring to Family Pension Rules, 1964, the Supreme Court held that "the rules do not provide for nomination with regard to family pension instead, the rules only designate the persons who are entitled to receive the family pension. Thus, no other person except those designated under the rules are entitled to receive family pension. The Family pension Scheme confers monetary benefit on the wife and children of the deceased railway employee, but the employee has no title to it. The employee has no control over the family pension, as he is not required to make any contribution to it. The family pension scheme is in the nature of a welfare scheme framed by the railway administration to provide relief to the widow and minor children of the deceased employee. Since the rules do not provide for nomination of any person by the deceased employee during his life time for the payment of family pension, he has no title to the same. Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition."
40. In this context, the Apex Court also relied on a decision made in Jodh Singh Vs. Union of India, reported in 1980 (4) SCC 306, wherein, at paragraph 10, the Supreme Court observed that "Where a certain benefit is admissible on account of status and a status that is acquired on the happening of certain event, namely, on becoming a widow on the death of the husband, such pension by no stretch of imagination could ever form part of the estate of the deceased. It it did not form part of the estate of the deceased it could never be the subject matter of testamentary disposition."
41. The Supreme Court in Smt.Violet Issaac's case (cited supra) further held that only the widow of the deceased railway employee was entitled to receive the family pension notwithstanding the will alleged to have been executed by the deceased. Accordingly, a direction was given to the railway administration. Insofar as the other claims, the Supreme Court did not express any opinion.
42. Extract of the judgment is reproduced, for the limited purpose that no Government servant, employee of the public sector undertaking or railways etc., or any other statutory bodies, during his life time had any power of disposition of family pension, treating it as a part of his estate.
43. In the case on hand before me, father of the petitioners during his life time has nominated his brother to receive the entire retirement benefits and in the light of the 15 pronouncement of the Supreme Court, the family pension cannot be sanctioned in favour of the brother of the deceased, 4th respondent in the present writ petition.
44. In Hemant Kulshrestha Vs. Puspa Kulshrestha and others, reported in 2002 II LLJ 97, the deceased nominated his brother to receive provident fund dues. Estranged wife, who had also deserted sought for a succession certificate for herself and minor children. Succession certificate granted to them, was challenged by the brother nominee. Referring to rule 2(1)(c), Madya Pradesh General Provident Fund Rules which defines 'family' and the rules which provide for nomination, the Madhya Pradesh High Court, at paragraphs 3 and 6 held as follows:-
3. Rule 8 provides for nominations and proviso to Rule 8 provides that if the subscriber has a family then the nomination shall not be in favour of any person or persons other than the members of his family. Note below Rule 8 provides that even if some sanction is accorded in relaxation of Rule to any nomination made by a subscriber in favour of a person or persons other than members of his family (say 'mother' and 'brother', who are not included in the term 'family' as defined in these rules) when members of his family are surviving that is ineffective and the nominee would not be entitled to the right conferred by sub-section (1) of Section 5 of the Provident Funds Act, 1925. Therefore, under the provisions of Section 5 of the Provident Funds Act and the rules framed thereunder, the person entitled to become nominee should be a member of the family, as defined under Rule 2 (1) (c) of the Madhya Pradesh General Provident Fund Rules.
45. In Gouri Rani Das Vs. Commissioner of Police, Kolkata, reported in 2007 (114) FLR 459, a police constable died. His wife made a claim for release of retiral benefits. There was also a rival claim. The authorities conducted an enquiry and came to know that the deceased constable had contracted marriage twice, during subsistence of the first marriage, without obtaining dissolution of the earlier marriage and that the applicant was the 3rd wife of the deceased. The enquiry also revealed that the mother of the deceased was alive. The first wife died leaving her son as the legal representative. The second wife, without obtaining any divorce from the deceased constable, married a third person. The second wife had no child. There were two daughters to the third wife, born out of the wedlock, between her and the deceased. The marriage between the third wife and the deceased was during the life time of the first wife and therefore, the said marriage was void ab initio as per Section 11 of the Hindu Marriage Act. The third wife also filed a original application before the State Administrative Tribunal, West Bengal, for disbursement of the retiral benefits, on the basis of the entry of the names of the applicant and her two daughters, with the respondent police authorities. The 16 third wife moved the High Court by way of the writ petition. Taking note of rule 100(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971, that nomination of the employee shall not be in favour of any person or persons, other than the members of his family and also the fact that the marriage of the petitioner with the deceased constable amounts to inclusion of the name of a stranger, and rule 4 of the Payment of Arrears of Pension (Nomination) Rules, 1986, which states that any pensioner may nominate if he has a family as defined in Clause (a) of the rule 3, one or more members of the family includes (1)wife (2)husband (3)sons (4)unmarried and widowed daughters (5)mother and (6)father, the Division Bench of the Kolkata High Court held that the very nomination submitted by the deceased was not therefore proper. The Division Bench also observed that the deceased police constable therein had suppressed the true facts regarding his family and that he had nominated his third wife, who was a stranger and therefore, she cannot be considered as a nominee of the deceased in so far as the retiral benefits are concerned. G.L.Bhatia's case (cited supra) has also been considered.
46. In Shipra Sengupta Vs. Mridul Sengupta and others, reported in 2009 (10) SCC 680, relied on by the learned counsel for the petitioners, the appellant before the Apex Court was the wife of a deceased Head Clerk, in State Bank of India, Bhopal, Madhya Pradesh. He was initially an employee of Imperial Bank of India and after the creation of State Bank of India Act, 1955, the business of Imperial Bank of India was taken over by State Bank of India, as per the provisions of the State Bank of India Act, 1955. He died on 08.11.1990 at Bhopal, leaving behind him, his widow, Smt.Shipra Sengupta; his mother Niharbala Sengupta; his brothers, Pushpal Sengupta and Mridul Sengupts. At the time, when the employee joined the bank, he was unmarried and nominated his mother, as nominee. The appellant/widow filed an application under Section 372 of the Succession Act, 1925, claiming her share in insurance, gratuity, public provident fund etc, on the principle that any nomination made by the employee prior to his marriage, would automatically stand cancelled, after his marriage. It was also her contention that after the death of her husband, both she and the mother of the deceased being Class I heirs, under the Schedule of the Hindu Succession Act, 1956, were entitled to succeed equally to the property. The trial Court granted a succession certificate to the appellant/widow and the mother of the deceased, in respect of the total amount of life insurance, gratuity, public provident fund and general provident fund, due to the deceased employee. The trial Court also held that both of them were entitled to half share in the aforesaid amounts, due to the employee from different heads. As regards the rest of the items mentioned in paragraph 6 of the application therein, the trial Court held that the widow alone was entitled to a succession certificate. Being aggrieved by the same, a joint 17 appeal has been filed by the mother and brother of the deceased. The appellate Court rejected the contention of the widow that on account of the nomination made in favour of the mother of the deceased in respect of the aforesaid items, the appellant/wife of the deceased would not get any share in the amount credited or payable to the deceased employee. The Learned District Judge held that the nomination did not confer any beneficial interest in the amount due, towards life insurance, gratuity, public provident fund and general provident fund.
47. in Shipra Sengupta's case (cited supra), placing reliance on a decision of the Supreme Court in Sarbati Devi Vs. Usha Devi, reported in 1984 (1) SCC 424, the Learned District Judge modified the order of the Civil Judge in respect of other items, holding that the mother of the deceased being a Class I heir, under the Hindu Succession Act, 1956, was equally entitled to half share along with the widow. A succession certificate was directed to be issued in accordance with the modifications made by him.
48. Wife of the deceased Niharbala Sengupta and son Pushpal Sengupta filed a revision petition before the High Court. During the pendency of the revision, mother of the deceased died and the other son of the deceased Mridul Sengupta was substituted in her place on the basis of an alleged will executed by her prior to her death, in favour of the other brother. The High Court also relied on the judgment in Sarbati Devi's case (cited supra) and passed the following orders:-
(i) The amount of General Provident Fund deposited in the name of Shyamal Sengupta declaring that Mirdul Sengupta shall be entitled to entire sum due to Shyamal Sengupta together with interest to which he is entitled as per rules of deposit by the Bank till he is paid in full.
(ii) So far as rest of the items mentioned in paragraph 6(a) of the application under section 372 are concerned it is declared that after the death of Niharbala Sengupta, Mirdul Sengupta is entitled to succession certificate along with Shipra Sengupta.
Both of them shall be entitled to 1/2 share each as directed by the District Judge.
(iii) The Civil Judge shall also direct non-applicant No. 2 or any other authority to pay the interest on the amount mentioned in paragraph 2 till that is paid to them at the usual rate of 9% from the date of death of Shyamal Sengupta or the usual rate available to the depositor/subscriber whichever is less."
49. Assailing the correctness of the judgment of the High Court, the widow moved the Supreme Court. Though as many as seven questions were raised in the appeal, 18 questions 1 to 3 considered by the Apex Court would be relevant for the purpose of adjudication of the rival claims in the present writ petition.
I. Whether nomination of mother by a member of a Provident fund governed by the Imperial Bank of India Employees' Provident Fund Rules before his marriage confers ownership on the nominee and destroys right of succession of the widow under Succession Act? II. Whether nomination only indicates the hand which is authorized to receive the amount on the payment of which trustees of the provident fund get a valid discharge? III. Whether the provident fund can be claimed by the heirs of the member of the provident fund in accordance with the law of succession governing them?
50. Placing reliance on Sarbati Devi's case (cited supra), Vishin N.Khanchandani Vs. Vidya Lachmandas Khanchandani, reported in 2000 (6) SCC 724 and Ashok Chand Aggarwala Vs. Delhi Admn, reported in (1998) 7 AD 639 (Del), before the Supreme Court, the appellant/widow has contended that a mere nomination does not have the effect of conferring on the nominee any beneficial interest in the property, after the death of the employee. She has also contended that the nomination only indicates the person who is authorised to receive the amount or manage the property or the amount, as the case may be, and that the same would succeed only in accordance with law of succession governing the deceased. Considering the rival submissions and the issues stated supra, at paragraphs 17 and 18, the Supreme Court held as follows:-
17. The controversy involved in the instant case is no longer res integra. The nominee is entitled to receive the same, but the amount so received is to be distributed according to the law of succession. In terms of the factual foundation laid in this case, the deceased died on 8.11.1990 leaving behind his mother and widow as his only heirs and legal representatives entitled to succeed.
Therefore, on the day when the right of succession opened, the appellant, his widow became entitled to one half of the amount of the general provident fund, the other half going to the mother and on her death, the other surviving son getting the same.
18. In view of the clear legal position, it is made abundantly clear that the amount in any head can be received by the nominee, but the amount can be claimed by the heirs of the deceased in accordance with law of succession governing them. In other words, nomination does not confer any beneficial interest on the nominee. In the instant case amounts so received are to be distributed according to the Hindu Succession Act, 1956. 19
19. In case of Poonam vs. Union of India & Ors. (OA No. 860/00314/2015 decided on 02.12.2015), where status of the widow of the deceased employee was under context, the Coordinate Bench of this Tribunal held as under:-
"13. We have given our careful consideration to the matter. From the material on record and arguments advanced by learned counsel it appears to us that the status of the applicant as widow of Sh. Paramjit Singh, deceased employee is not in doubt. The Marriage Certificate dated 07.01.2013 has been verified by the Registrar of Marriages. Besides, deceased employee had filed his nomination for GPF on 03.12.2012 (Annexure !-4) indicating the applicant as his nominee. ID card issued by the respondent department itself showed Ms. Poonam as the wife of Sh. Paramjit Singh. On the other hand, documents placed on record by the respondents i.e. nomination form of 2006 in favour of one Ms. Sangita and regarding marriage of one Ms. Poonam do not appear to be authentic ones. In view of the position narrated in the rejoinder which has not been rebutted by the respondent department. The OA is decided in favour of the applicant. The respondent department may release 50% of the family pension in favour of the applicant from due date of 06.02.2013 along with 8% interest on the payment of arrears of the same till the actual date of release. 50% of the other retiral benefits may also be released to the applicants. Action in this regard may be completed within six weeks from a certified copy of this order being served upon the respondents. Claim to balance 50% of the family pension and remaining retiral benefits may be established by Sh. Atish, so of the deceased employee and Ms. Poonam through civil court if so advised"
20. In consideration of the above facts, it is decided that the applicant is the daughter of the deceased employee; she has right to claim a part of the family pension as also gratuity as per her share in the succession; and that nomination only indicates right to receive pension but its distribution shall be as per the succession law. 20
21. Now I take up the question of how an unmarried daughter beyond 25 years of age is eligible for family pension. In this regard, 22. I place reliance on the OM dated 06.09.2007 which provides as under:-
"2. The Staff Side of National Council (JCM) had raised the issue of extension of scope of family pension to unmarried daughters of the Government servants/Pensioners even after attaining the age of 25 years at par with the widowed/divorced daughters, which has been agreed to in principle. It has, accordingly, been decided that the unmarried daughters beyond 25 years of age shall also be eligible for family pension at par with the widowed/divorced daughters subject to other conditions being fulfilled. Grant of family pension to unmarried/widowed/ divorced daughters shall be payable in order of their date of birth and younger of them will not be eligible for family pension unless the next above her has become ineligible for grant of family pension. It is further clarified that family pension to unmarried/widowed/divorced daughters above the age of 25 years shall be payable only after the other eligible children below 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."
This has been further supported by DoP&T OM dated 28.04.2011, which reads as under:-
"2. Further, orders have been issued vide this Department's OM NO. 1/19/03-PPW(E) dt. 6th September, 2007, whereby an unmarried daughter of a Government servant/Pensioner beyond 25 years of age, has been made eligible for family pension at par with widowed/divorced daughter subject to fulfillment of certain conditions. However, family pension to the widowed/divorced/unmarried daughters shall be payable in order of their date of birth and the younger of them shall not be eligible for family pension unless the next above has become ineligible for grant of family pension. Further, the family pension to widowed/divorced/unmarried daughters above the age of 25 years, shall be payable only after the other eligible children below 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.
3. Subsequently, orders have been issued vide this Department's OM No. 1/15/2008-P&PW(E) dt. 17.8.2009 whereby dependent disabled siblings of a Government servant/pensioner have been made eligible for family 21 pension for life subject to the fulfillment of certain conditions.
4. Representations have been received in this Department from various quarters (i.e. Pensioners' Associations, etc.) to the effect that the claims for family pension of widowed/divorced/unmarried daughters and dependent disabled siblings are not being entertained by certain Ministries/Departments on the plea that their names do not appear in the details of family members submitted by the Government servant/Pension to the Head of Office from where he/she had retired. Besides, in cases where a Government servant/Pensioner had expired prior to the issue of above referred orders by this Department, the claims of widowed/divorced/unmarried daughters, etc. for family pension are not being entertained by Ministries/Departments on the plea that they were not eligible for family pension at the time of retirement/death of the Government servant or death of the Pensioner. This Department has been requested for issue of appropriate clarificatory orders in the matter so as to settle the family pension claims of the aggrieved widowed/divorced/unmarried daughters, etc., of the Government servants/Pensioners.
5. The matter has been considered in this Department in consultation with Department of Expenditure, Ministry of Finance. It is hereby clarified that subject to fulfillment 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. Consequently, financial benefits in such cases will accrue from the date of issue of respective orders. The cases of dependent disabled siblings of the Government servants/Pensioners would also be covered on the above lines."
23. I further place reliance on OM dated 11.09.2013 of DOPT, para 4 of which reads as under:-
"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 condition of eligibility for family pension at the time of death of the Government servant or his/her turn 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 22 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 fulfills all eligibility conditions at the time of death/ineligibility of her parents and on the date her turn to receive family pension comes."
24. In view of the afore decisions, the claim of the applicant to receive family pension is well established despite having crossed the age of 25.
25. In view of the above position, afore issues have been considered and decided in favour of the applicant. I understand the anxiety of the respondent department that pension should not go or the retiral dues should not go into the wrong hands, and, therefore, they have directed the applicant to obtain succession certificate. No pension has, however, been released to any of the parties. It is erring on the side of the abundant caution. The respondent department may release 50% family pension, gratuity, provident fund and other retiral benefits in favour of the applicant and 50% to the other party. No costs.
(Dr. B.K. Sinha) Member (A) /lg/