Pensionary benefits cannot be subject to testamentary disposition.

JUDGMENT

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the 1st respondent to make payments of family pension to the petitioner, payable from 05.01.2014.)

1.This Writ Petition has been filed in the nature of Mandamus, seeking a direction to the 1st respondent / Establishment Officer to make payments of family pension to the petitioner herein, in view of her status as widow of late C. Doraiswamy, who was employed at Defence Service Staff College, Wellington, Nilgiris, Tamil Nadu and who died after superannuation on 05.01.2014 at Gurkha Camp at Wellington.

2. The said C. Doraiswamy appears to be a person with extreme views on his personal life. There are documents which reflect that the petitioner is his wife. This includes the Family Card / Ration Card which has been produced as documents and also the Adhaar Card of the petitioner herein. There is also a communication issued by the respondents themselves on 08.05.2015, wherein they have recognized the petitioner as the widow of late C. Doraiswamy and stated as follows:

“ PENSION AND OTHER BENEFITS

1. Reference your application dated 06 Apr 15.

2. Your husband Shri (Late) C Doraiswamy, Ex Junior Gestetner Operator of this College, while filing his pension claim declared that his pension shall be made admissible to him till his death and the same will not be extended to his family after his death.

3. In order to claim your right as his wife for Family Pension, you may submit Orders from the Court stating that you are his legally wedded wife so that further action can be taken in this regard.

4. It is to be mentioned that no affidavit has been sent to this office by your son as stated vide your application under reference and no enclosures have been found attached with the application.

Sd/-

(HN Vimalanathan)

Establishment Officer for Commandant”

3. The only requirement for respondents at that particular point of time was an affidavit from the son and for some strange reason an order from the Court that the petitioner was the legally wedded wife of late C. Doraiswamy. The son had given an affidavit as required and that has also been filed as document dated 11.10.2014 even earlier to the aforementioned letter by the respondents.

4. The only reason why the respondents had taken a decision to withhold family pension payable to the petitioner, as a matter of right, consequent to her status as wife, is an affidavit filed by the said C. Doraiswamy, which had been notarized. The said affidavit is dated 06.06.2007. It is a very brief affidavit and it is as follows:

“I, Shri. C. DORAISWAMY son of Mr. A. Chinnappan, aged 60 years, employed as Junior Gestetner Operator (JGO), at Defence Service Staff College, Wellington, The Nilgiris, Tamilnadu, and at present residing at Venkatesh Lane, Gurkha Camp, Wellington Barracks Post, The Nilgiris, Tamilnadu, hereby declare that my pension shall be made admissible to me till my death and the same will not be extended to my family after my death.”

5. The reading of the aforementioned affidavit would make it clear that my statement at the beginning that he is a person of extreme views is justified. He claimed that he is entitled to receive pension consequent to his service with the respondents and that thereafter, it should not be paid to his family members after his death. He had not denied that the petitioner herein was not his wife. If he had done so, then the requirement by the respondents calling upon the petitioner to prove that, she was the legally wedded wife would be justifiable. He having not done so, it does not lie on the mouth of the respondents to call upon the widow to go to Court to establish that she was actually married to the person earlier died. It would not be possible also consequent to the death of individual and there would be no evidence in contra and getting such decr