In both of these Schemes the term 'family'
includes, amongst others, the mother of the
deceased Government servant. She is entitled to
get family pension in case she is wholly depending
on the deceased Government servant for support
and no other member of the family of the deceased
Government servant, who is vested with a prior
right to receive family pension than the mother,
is surviving. However, 'mother' has been excluded
from the definition of 'family' in the Family
Pension Scheme, 1964 enumerated in Rule 116 of the
Pension Rules.
12. There is absolutely no rationale or
justification behind excluding the mother from the
definition of 'family' in the Family Pension
Scheme 1964. The mother of the deceased
Government servant, who is otherwise entitled to
receive family pension under the Family Pension
Scheme 1950 (Rule 117) or under Extra Ordinary
Family Pension Scheme (Appendix IV), thus, has
been discriminated by denying her the same right
to receive family pension vide Rule 116 of the
Pension Rules. In our view, this denial of right
to the mother of the deceased Government servant
to receive family pension under the Family Pension
Scheme 1964 (Rule 116) amounts to discrimination
and as such would infringe the fundamental right
to equality as enshrined in Article 14 of the
Constitution of India.
13. Here reference may be made to the
Government Resolution No.PEN 2011/CR54/Seva4,
dated 22nd January, 2015 published by the
Government of Maharashtra, Finance Department,
whereby mother of the deceased Government servant,
who is wholly dependent on him, has been held to
be entitled to get family pension if other family
members of the deceased Government servant, who
have a prior right to receive family pension, are
not surviving. This Government Resolution has
been made applicable to the employees of the
Maharashtra Zilla Parishads vide proviso to
Section 248 of the Maharashtra Zilla Parishads and
Panchayat Samities Act, 1961.
14. In the 'Introduction' part of the said
Government Resolution it is mentioned that since
the definition of the term 'family' under the
existing Pension Rules does not cover parents of a
Government servant, as a social security measure
the scope of the term 'family' defined under
Pension Rules has to be enlarged restrictively by
amending the Rules suitably to include into its
ambit the wholly dependent parents of a single
Government servant. In clause (11) of the said
Government Resolution it has been mentioned that a
formal amendment to the Maharashtra Civil Services
(Pension) Rules, 1982 will be made in due course.
This Government Resolution fortifies our view that
there was no rationale or justification in
excluding the parents of the deceased Government
servant from the term 'family' as given in the
Family Pension Scheme 1964 (Section 116).
Therefore, the decision of the respondents in
denying family pension to the petitioner, who is
the only surviving family member of deceased
Deelip, who is stated to be wholly dependent on
him for livelihood, is not sustainable since it
has the effect of discriminating the petitioner
and depriving her of the fundamental right to
equality as enshrined in Article 14 of the
Constitution of India.
15. In the above circumstances, the
respondents will have to be directed to reconsider
the case of the petitioner for grant of family
pension under Rule 116 of the Pension Rules of
1982 considering the object of the Pension Scheme,
1964. The respondents should take liberal
approach and should not turn down the request of
the petitioner for grant of family pension on
technical grounds.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
WRIT PETITION NO. 1884 OF 2012
Smt. Vimalbai Supdu Patil,
V
The State of Maharashtra,
CORAM : S.S.SHINDE
AND
SANGITRAO S.PATIL, JJ.
DATED : 24.6.2016
Citation: 2016(6) MHLJ 191
Rule. Rule made returnable forthwith. With
the consent of the learned counsel for the
parties, heard finally.
2. The petitioner has challenged the validity
of rejection of her claim for family pension made
upon the death of her son namely Deelip Supdu
Patil in harness.
3. The son of the petitioner was serving as a
Gram Sevak since 3rd April, 1984. He was the
permanent employee of respondent nos. 2 and 3
namely Zilla Parishad, Jalgaon and Panchayat
Samiti, Amalner, respectively. He died on 29th
January, 2007 in harness. The petitioner is the
only Class I legal heir of her son. Accordingly
she obtained heirship certificate from the
Tahsildar on 21st March, 2007. On the basis of
that certificate she was paid an amount of
Rs.1,41,450/ towards gratuity vide order dated
30th September, 2008. Being the only legal heir
of her deceased son and being wholly depending on
him for livelihood, the petitioner claimed family
pension. However, her claim for family pension
came to be rejected on the sole ground that she
does not come within the definition of 'family' as
given in clause (b) of subrule (16) of Rule 116
of the Maharashtra Civil Services (Pension) Rules,
1982 ('the Pension Rules' for short).
4. The learned counsel for the petitioner
submits that grant of family pension to the
dependents of the deceased employee is an outcome
of beneficial legislation. He submits that as per
the Family Pension Scheme 1950 given in Rule 117,
in the absence of the members of the family of the
deceased Government servant as described in clause
(a) of subrule (6), the family pension may be
granted to the father and if father is not alive
then to the mother of the Government servant vide
clause (b) of subrule (6). He further submits
that as per the Extra Ordinary Family Pension
Scheme enumerated in Appendix IV of the Pension
Rules of 1982 in the absence of the members of the
family of the Government servant as described in
clauses (i) to (iv) of subrule (3) of Rule 4,
family pension can be awarded to the mother
depending upon the deceased Government servant for
support. However, under the same circumstances as
per the provisions of Family Pension Scheme of
1964 as contained in Rule 116 of the Pension Rules
the mother of the deceased Government servant has
been denied such a relief by not including her in
the term 'family' as given in clause (b) subrule
(16). He submits that this amounts to
discrimination under Article 14 of the
Constitution of India.
5. The learned counsel for the petitioner
cited the decision in the case of Kunhami vs Union
of India (Uoi) (2006 (2) KLT 661), based on
Regulation 216 of the Army Regulations, which
includes mother of the deceased employee in the
definition of family. In that case, consequent
upon remarriage of the widow of the deceased
employee his mother was granted family pension.
6. The learned counsel further pointed out
the Resolution, dated 22nd January, 2015 passed by
the Government of Maharashtra, Department of
Finance, whereby in the absence of the relations
of the deceased employee having preferential right
to get family pension, the mother of such single
Government employee, wholly depending on him, has
been held to be eligible to get family pension
under Rule 116 of the Pension Rules. He, submits
that the deceased son of the petitioner died as a
single Government servant, in the sense, he was
the only surviving child of the petitioner and had
no surviving spouse and children as clarified in
the Government Resolution dated 22nd January, 2015.
He, therefore, submits that the petitioner cannot
be subjected to discrimination by refusing to
grant family pension in view of this Government
Resolution as well.
7. As against this, the learned Assistant
Government Pleader relying on the reply filed by
respondent no.3 and in view of the provisions of
Rule 116 (16) of the Pension Rules submits that
since the petitioner, who is the mother of the
deceased Deelip, does not fall within the
definition of 'family', is not entitled to get
family pension, though the deceased Deelip was the
single Government servant and the petitioner is
his only Class I legal heir.
8. Indeed Rule 116 of the Pension Rules
contains benevolent provisions framed with the
object of extending financial assistance to the
eligible member of the family of the deceased
employee depending on him, who is put to suffer a
great hardship after the demise of the sole
earning member of the family. Consequently such
benevolent provisions have to be interpreted
liberally so as to achieve the object behind
framing such provisions.
9. As seen from Subrule (1) of Rule 117 the
provisions of this Rule are applicable to a
Government servant who was in service on 31st
December, 1963 and had specifically opted for the
scheme of Family Pension, 1950, admissible under
the Revised Pension Rules, 1950 in Appendix XIVC
of the Bombay Civil Services Rules, 1959, Volume
II, as amended from time to time.
10. Rule 62 (8) of the Pension Rules defines
Extra Ordinary Family Pension which is granted to
the family of the deceased Government servant
under the Rules contained in Appendix IV.
11. In both of these Schemes the term 'family'
includes, amongst others, the mother of the
deceased Government servant. She is entitled to
get family pension in case she is wholly depending
on the deceased Government servant for support
and no other member of the family of the deceased
Government servant, who is vested with a prior
right to receive family pension than the mother,
is surviving. However, 'mother' has been excluded
from the definition of 'family' in the Family
Pension Scheme, 1964 enumerated in Rule 116 of the
Pension Rules.
12. There is absolutely no rationale or
justification behind excluding the mother from the
definition of 'family' in the Family Pension
Scheme 1964. The mother of the deceased
Government servant, who is otherwise entitled to
receive family pension under the Family Pension
Scheme 1950 (Rule 117) or under Extra Ordinary
Family Pension Scheme (Appendix IV), thus, has
been discriminated by denying her the same right
to receive family pension vide Rule 116 of the
Pension Rules. In our view, this denial of right
to the mother of the deceased Government servant
to receive family pension under the Family Pension
Scheme 1964 (Rule 116) amounts to discrimination
and as such would infringe the fundamental right
to equality as enshrined in Article 14 of the
Constitution of India.
13. Here reference may be made to the
Government Resolution No.PEN 2011/CR54/Seva4,
dated 22nd January, 2015 published by the
Government of Maharashtra, Finance Department,
whereby mother of the deceased Government servant,
who is wholly dependent on him, has been held to
be entitled to get family pension if other family
members of the deceased Government servant, who
have a prior right to receive family pension, are
not surviving. This Government Resolution has
been made applicable to the employees of the
Maharashtra Zilla Parishads vide proviso to
Section 248 of the Maharashtra Zilla Parishads and
Panchayat Samities Act, 1961.
14. In the 'Introduction' part of the said
Government Resolution it is mentioned that since
the definition of the term 'family' under the
existing Pension Rules does not cover parents of a
Government servant, as a social security measure
the scope of the term 'family' defined under
Pension Rules has to be enlarged restrictively by
amending the Rules suitably to include into its
ambit the wholly dependent parents of a single
Government servant. In clause (11) of the said
Government Resolution it has been mentioned that a
formal amendment to the Maharashtra Civil Services
(Pension) Rules, 1982 will be made in due course.
This Government Resolution fortifies our view that
there was no rationale or justification in
excluding the parents of the deceased Government
servant from the term 'family' as given in the
Family Pension Scheme 1964 (Section 116).
Therefore, the decision of the respondents in
denying family pension to the petitioner, who is
the only surviving family member of deceased
Deelip, who is stated to be wholly dependent on
him for livelihood, is not sustainable since it
has the effect of discriminating the petitioner
and depriving her of the fundamental right to
equality as enshrined in Article 14 of the
Constitution of India.
15. In the above circumstances, the
respondents will have to be directed to reconsider
the case of the petitioner for grant of family
pension under Rule 116 of the Pension Rules of
1982 considering the object of the Pension Scheme,
1964. The respondents should take liberal
approach and should not turn down the request of
the petitioner for grant of family pension on
technical grounds.
16. In the result, we pass the following
order.
(i) The Writ Petition is allowed.
(ii) The petitioner shall submit a
fresh proposal for family pension before
respondent no.3 within two weeks from
today.
(iii) Respondent no.3 shall send the
necessary proposal of the petitioner for
family pension to respondent no.2 within
four weeks from receiving the same from
the petitioner. On receiving the said
proposal, respondent no.2 shall consider
the claim of the petitioner for grant of
family pension on its own merits and
take decision thereon within four weeks,
in view of the provisions of Rule 116 of
the Family Pension Scheme, 1964 from the
date of death of her son Deelip i.e.
29th January, 2007 onwards. However, the
said claim should not be rejected on the
ground that she does not fall within the
ambit of the term 'family' as contained
in clause (b) subrule (16) of Rule 116
of the Pension Rules.
(iv) With these directions the Writ
Petition is disposed of.
(v) Rule is made absolute
accordingly.
(vi) No costs.
(SANGITRAO S. PATIL) (S.S.SHINDE)
JUDGE JUDGE
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