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Tripura High Court

Mr. P. K. Pal vs Mr. P. K. Ghosh on 4 May, 2022

Author: S. Talapatra

Bench: S. Talapatra

                        HIGH COURT OF TRIPURA
                              AGARTALA
                          WP(C) No. 183 of 2021

For Petitioner(s)             : Mr. P. K. Pal, Adv.
                                Mr. S. Datta, Adv.

For Respondent(s)             : Mr. P. K. Ghosh, Adv.

Mr. S. S. Debnath, Adv.

HON'BLE MR. JUSTICE S. TALAPATRA Order 04/05/2022 Heard Mr. P. K. Pal, learned counsel appearing for the petitioner namely Priya Harijan. Also heard Mr. S. S. Debnath, learned counsel appearing for the respondents No. 1 - 3 and Mr. P. K. Ghosh, learned counsel appearing for the respondents No. 4, 5 & 6.

The father of the petitioner namely, Mangal Harijan, died in harness while he was working as the Sweeper, Group - D in IGM Hospital, Agartala. For his sudden death, the legal heirs have been entitled to get certain benefits accrued from his service. There is no dispute that the following persons are the legal heirs of Mangal Harijan, the deceased:

i. Smt. Saraswati Harijan - wife.

ii. Smt. Priya Harijan - Daughter (petitioner). iii. Smt. Priyanka Harijan - Daughter (from the second marriage that was contracted by Mangal Harijan).

iv. Smt. Nishya Harijan - Daughter (minor) (from the second marriage that was contracted by Mangal Harijan). v. Sri Deb Harijan - Son (minor) (from the second marriage that was contracted by Mangal Harijan).

It is also not in dispute that Smt. Priyanka Harijan is married and settled in her matrimonial home.

It has been also stated that those legal heirs are entitled to get the retirement benefits such as gratuity and death cum retiral benefit (DCRB), encashment of leave as permissible, group insurance scheme, if applies in case of Mangal Harijan. Those benefits are to be equally shared by all the legal heirs including the married daughter namely, Priyanka Harijan. If those amounts have been received, then the person who received the said amount shall transfer the respective share to the other legal heirs.

Mr. Debnath, learned counsel has confirmed that Smt. Saraswati Harijan [mother of the petitioner] has received those amounts. Hence, Smt. Saraswati Harijan is directed to transfer the respective share within a period of 60 days from today. If such amount is not transferred in accordance therewith then the respondent No. 2 will be entitled to draw the legal action against Smt. Saraswati Harijan having been referred by Smt. Priyanka Page 3 of 6 Harijan, Smt. Nishya Harijan and Sri Deb Harijan or any one of them. Since Smt. Nishya Harijan and Sri Deb Harijan are minors, their share shall be maintained in a fixed deposit till their maturity.

So far pension is concerned, as Mr. Debnath, learned counsel has categorically stated that the Government of Tripura has not carried out any amendment in the CCS (Pension) Rules, 1972 by adopting any provision in respect of eligibility of children from void and voidable marriage for family pension.

The Government of India by the office memorandum No. 1/16/96-P&PW(E) dated 02/12/1996 has clarified that the pensionery benefits will be granted to children of deceased Government Servant/ pensioner from void or voidable marriage when the term comes in accordance with Rule 54(8). It has been also observed that 'they will have no claim whatsoever to receive family pension as long as the legally wedded wife is the recipient of the same'.

However, subsequently the matter was re-examined by the Ministry of Law and Justice (Deptt. of Legal Affairs) and Ministry of Finance (Deptt. of Expenditure). Thereafter, it has been decided that para -4 of the office Memorandum dated 02/12/1996 shall remain suspended. It has been incorporated its Page 4 of 6 place that the share of the children from illegally wedded wife in the family pension shall be payable to them in the manner given under Sub-Rule 7(C) of Rule 54 of CCS Pension Rules 1972 along with the legally wedded wife. Thus, the earlier memorandum dated 02.12.1996 was modified by the subsequent memorandum No. 1/16/96-P&PW(E)(Vol-II) dated 27.12.2012.

This court asked Mr. Debnath to take proper instruction on that aspect of the matter by the order dated 27.04.2022. Mr. Debnath, learned counsel has apprised that the said change has not been incorporated in the Rules as yet.

Situated thus, Mr. Ghosh learned counsel has urged before this court to protect the benefit of pension and to make accommodation for the legal heirs [Smt. Nishya Harijan and Sri Deb Harijan] from the amount as received by the legitimately wedded wife.

Mr. P.K Pal, learned counsel, however, did not raise any objection over the issue. This has given this court a reprive to determine the issue without taking resort to the changes brought by the Government of India. Whoever draws the pension is not the owner of the pension but he or she is supposed to utilize the pension for upbringing of the dependents of the deceased employee.

Having regard to that objective of the pension, this court is of the view that except Priyanka Harijan, who is already married and settled in marital life, the other legal heirs are entitled to the pension but their proportion of share cannot be directed to be paid directly to them. As such, Saraswati Harijan, the legally wedded wife of Mangal Harijan shall draw the pension but after her drawing such pension, half of the pension be sent to the account of mother of Smt. Nishya Harijan and Sri Deb Harijan, namely Smt. Gita Harijan. Smt. Gita Harijan does not have any right over that amount, she will spend half of the pension for the benefit of Smt. Nishya Harijan, the unmarried daughter and Sri Deb Harijan, the minor son of the deceased Sri Mangal Harijan from the second marriage as he contracted with Gita Harijan. This arrangement will come into force from 01.05.2022 and continue as per the provisions of the CCS(Pension)Rules, 1972 as adopted by the Government of Tripura.

The account number of Gita Harijan may be shared with Mr. P. K. Pal, learned counsel appearing for the petitioner, and the petitioner shall provide the said number to Smt. Saraswati Harijan for remitting the share of Smt. Nishya Harijan and Sri Deb Harijan to the account of Smt. Gita Harijan, the mother of those two persons.

As far as the compassionate appointment is concerned, this court finds only Smt. Priya Harijan is eligible to apply for the said appointment. As such, if Smt. Priya Harijan, the petitioner herein, is covered by the Die-in-Harness scheme, the respondent shall appoint her in suitable post commensurate to her qualification. Such appointment shall be made, if she is found eligible under the scheme, within a period of two months from the day when the petitioner shall furnish a copy of this order. No objection need be obtained only from Smt. Saraswati Harijan, mother of the petitioner and is not required to be obtained from other legal heirs, as they are not eligible.

The respondent shall accept the no objection of Smt. Saraswati Harijan for purpose of consideration of the compassionate appointment under the die in harness scheme.

In terms of the above, the writ petition stands disposed of.

JUDGE Munna S