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SMT. RAJANSARI versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Smt. Rajansari v. State Of U.P. And Others - WRIT - A No. 33249 of 1998 [2007] RD-AH 5253 (23 March 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 32

Writ Petition No. 33249 of 1998

Smt. Rajansri

Vs.

State of U.P., and others

Hon.Pankaj Mithal,J

The son of the petitioner Ajit Pal Singh who was serving as a constable in U.P., Police in a substantive capacity died on 29.9.1997. He was unmarried and as such left behind the petitioner i.e., his mother as his dependent. On the death of her son the petitioner started receiving family pension vide  order dated 10th July 1998 passed by the respondent No.3. However, by the impugned order dated 7.9.1998 her family pension was stopped and she was directed to refund the pension withdrawn by her as the mother is not entitle to family pension.

Heard learned counsel for the petitioner and the learned Standing counsel and also perused the writ petition and the counter affidavit.

The learned counsel for the petitioner has argued that the impugned order has been passed behind the back of the petitioner without affording any opportunity of hearing to her. Secondly, the mother is included with the definition of the 'family' as contained in Rule 3 of the U.P., Retirement Benefits Rules, 1961/ U.P. Liberalised Pension Rules, 1961 framed under Article 309 of the Constitution of India . Moreover, Rule 5  of the aforesaid rules contain the list of heirs entitle to receive family pension  in order of preference. It provides that in the absence of the wife/son/unmarried daughter/widowed daughter and  father, the mother is entitled to family pension.

In the counter affidavit filed on behalf of the respondent No. 3 nothing has been said about the averments made in the writ petition. No reason has been assigned as to why the pension has been stopped and is not payable to the petitioner.

The above rules as placed before me in Section 3 (C) contains the definition of the family as under:-

"Rule 3. In these Rules unless there is anything repugnant in the subject or context-

(a)................................................

(b)................................................

(C)"Family" means following relatives of an officer__

(i) Wife in the case of male Officer,

(ii) husband, in the case of female officer,

   (iii) Sons,                       (including step-children)

(iv) unmarried and          (and adopted children)

    widowed daughters

   (v) brothers below the age of 18 years and unmarried and             widowed sister (including step brothers and (step-sisters),

  (vi) father,

  (vii) mother,

  (viii) married daughters (including step-daughters), and

  (ix)  children of a pre-deceased son."

The relevant portion of  Rule 5 provides as under:-

    " (b) In the event of the pension not becoming payable      under clause (a) the pension may be granted----

(i) to the father;

       (ii) failing the father, to the mother;

       (iii) failing the father and the mother both to the eldest      surviving brother below the age of 18;

                (iv) these failing,to the eldest surviving unmarried sister;

               (v) failing (i) to (iv) above, to the children of a pre-deceased       son in the order it is payable to the children of the       deceased officer under clause (a) (ii), (iii) and (iv) above."

A bare reading of the aforesaid Rules reveal that mother is included in the definition of the family of the deceased employee and that the mother is also entitled to family pension in certain contingencies. Admittedly, no other person or heir of the deceased as mentioned either in the definition of the family or categorised under Rule 5 have come forward to claim family pension except the petitioner i.e., the mother. In the counter affidavit it has not been said that any other heir of the deceased employee is also claiming  family pension. Thus petitioner alone is claiming family pension. It is also not disputed that the petitioner is not the mother of the deceased employee or that she was not dependent upon him.

In view of the above circumstances, there appears to be no justification on the part of the respondents to have stopped the family pension which was being paid to the petitioner after the death of her son.  She is a dependent and family member of her son and as such is entitled for family pension.

Learned counsel for the petitioner in this connection has placed reliance upon  the decision of the Rajasthan High Court [2005 (104)FLR 140] (Smt.) Dhapu Vs. State of Rajasthan and another. In this case the court held that under the family pension Rules the mother falls within the definition of the family  and if she is a dependent upon the deceased employee, any rule which takes away the right of the mother to receive the family pension would be arbitrary and liable to be strucked down. The principle of law laid down in the above case is fully applicable to the present case, in as much as, the petitioner is a mother and the dependent of the deceased employee and she falls within the definition of the family.

In view of the above, the impugned order dated 7.9.1998 is quashed. The writ petition is allowed accordingly.

23.3.2007

SKS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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