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2011 Supreme(Raj) 755
[Citation : 2011(4) RLW 3336 (Raj.)]
(Rajasthan High Court)
Kamla Devi (Smt.) Vs. Union of India & Ors. (Mathur, J.)
HON'BLE GOVIND MATHUR, J.
Kamla Devi (Smt.)
Versus
Union of India & Ors.
S.B. Civil Writ Petition No. 795 of 2002, decided on 08.08.2011
V.S. Choudhary for I.R. Choudhary, for Petitioner;
V.K. Mathur, for Respondents
Headnote:Central Civil Services (Pension) Rules, 1972 — Claiming pension benefits for the intervening period since the pensioner disappeared and the petitioner started receiving family pension — Petitioners husband retired from service w.e.f. 31.3.1982 — Disappeared in August 1986 — No pension was drawn by him or on his behalf upto 4.3.1994 the date from which the petitioner is receiving family pension — Held — The respondent treated the pensioner alive upto 4.3.1994 so he was entitled to receive superannuatory pension upto the date of grant of family pension to his family — Pension being a right given to him under a statute and i.e. protected by the Govt. — The denial is violation of constitutional rights enshrined u/Art. 300-A of the constitution of India — Entitled to receive all his pension dues with interest @ 4.5 p.a.
Writ petition allowed. (Paras 10 to 13)
dsUnzh; flfoy lsok ¼isa'ku½fu;e] 1972 & tc ls isa'kuj xk;c gqvk ml frfFk ls ysdj izkfFkZ;ka }kjk ikfjokfjd isa'ku izkIr djuk 'kq: fd;k ml frfFk rd ds vUrorhZ vof/k gsrq isa'ku ifjykHk dk nkok djuk & 31-3-1982 dks izkfFkZ;k dk ifr lsok ls fuo`r gqvk & vxLr 1986 dks xk;c gqvk & 4-3-1994 dks tc izkfFkZ;k us ikfjokfjd isa'ku izkIr djuk 'kq: fd;k ml frfFk rd u rks isa'kuj vkSj u gh mldh vksj ls fdlh us isa'ku vkgfjr dh & vfHkfu/kkZfjr & izR;FkhZ us isa'kuj dks 4-9-1994 rd thfor ekuk vr% og vius ifjokj dks ikfjokfjd isa'ku eatwj djus dh frfFk rd vf/kokf"kZdh isa'ku ikus dk gdnkj Fkk & ,d fo/kku ds rgr isa'ku mls fn;k x;k ,d vf/kdkj gksus rFkk ljdkj }kjk lajf{kr gksus ds dkj.k og mls ikus dk gdnkj gS & blls badkj djuk Hkkjr ds lafo/kku ds vuqPNsn 300-d ds rgr iznRr laoS/kkfud vf/kdkjksa dk mYya?ku gS & 4-5% okf"kZdh dh nj ls C;kt lfgr vius leLr isa'ku lEcU/kh cdk;k ikus dk gdnkj gSA ¼in la[;k 10 ls 13½
;kfpdk Lohdkj dhA
2. Shri Bhanwarlal, husband of the petitioner, on being retired from service w.e.f. 31.3.1982 was in receipt of superannuatory pension in accor-dance with the Central Civil Services (Pension) Rules, 1972. however, in the month of August, 1986 he disappeared, therefore, no pension was drawn by him or on his behalf upto 4.3.1994, the date from which the petitioner is rec-eiving family pension as per G.I. Department of Pension and Pension Welfare O.M. No. 1(17)-P. and P.W./86-E dated 18.2.1993, that reads as follows:
"Family pension should be sanctioned from the date of lodging FIR or expiry of leave of the employee, whichever is later.-*** At present the family pension is sanctioned and paid to the eligible member of the family one year after the date of registering the FIR with the Police and no family pension is paid for the intervening period of one year from the date the FIR is lodged to the date the family pension can be sanctioned. This practice is causing hardship to the families. It has now been decided that the family pension which, in pursuance of the earlier orders, will continue to be sanctioned and paid one year after the date of lodging the FIR, will accrue from the date of lodging the FIR or expiry of leave of the employee who has disappeared, whichever is later. When the sanction for family pension is issued, the payment of pension from the date of accrual may be authorized. The usual procedure of obtaining the Indemnity Bond, etc., as laid down in the OM, dated 29.8.1986 [Decision (14) above] will continue to be followed. While sanctioning payment of family pension, it will be ensured by the concerned authorities that family pension is not authorized for any period during which payment of pay and allowances in respect of the disappeared employee has been made."
3. Suffice it to note that the first information report about missing of Shri Bhanwarlal was lodged at the police station having jurisdiction on 4.3.1994, as such family pension was also granted to the petitioner from that day.
4. The claim of the petitioner is for getting family pension for the period commencing from the month of August, 1986 to the month of February, 1994. It is urged that since Shri Bhanwarlal was missing since August, 1986, family pension should have been given from the date of his disappearance.
5. In response, the stand of the respondents is founded on the circular dated 18.2.1993 which prescribes for grant of family pension from the date of lodging first information report.
6. The Government of India's decision dated 18.2.1993 has not been challenged specifically in this petition for writ.
7. Heard counsel for the parties.
8. Much insistence is made by counsel for the petitioner to examine validity of the Government of India's decision dated 18.2.1993, however, looking to the peculiar facts of the case and also for the reason that no specific challenge is given to the decision aforesaid, I am not inclined to examine that, as suggested.
9. The admitted position that emerges out on pondering the facts is:
(1) from the date of retirement to the month of July, 1986 Shri Bhanwarlal, husband of the petitioner, withdrew pension;
(2) Since August, 1986 no pension was drawn by Shri Bhanwarlal; and
(3) the family pension was accorded to the petitioner from the month of March, 1994.
10. As per the applicable Rules where a Government Servant dies after retirement from service and was on the date of death in receipt of a pension, the family of the deceased shall be entitled for family pension. The respondents allowed family pension to the petitioner w.e.f. 4.3.1994, meaning thereby that they considered the date aforesaid as the date of death of Shri Bhanwarlal or in other words the respondents treated Shri Bhanwarlal alive upto 4.3.1994. In such a case Shri Bhanwarlal was entitled for receiving superannuatory pension upto the date of grant of family pension to hi
