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A.N. KHARE versus THE CHAIRMAN, UPSEB AND OTHERS

High Court of Judicature at Allahabad

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A.N. Khare v. The Chairman, Upseb And Others - WRIT - A No. 5711 of 1992 [2005] RD-AH 2383 (6 September 2005)

 

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

        Reserved

         (in Court No.53)

Civil Misc.Writ Petition No. 5711 of 1992

A.N.Khare .............................................Petitioner

Versus

Chairman, U.P.State Electricity Board,

Lucknow and others .................................Respondents

Hon.Shishir Kumar, J.

The present writ petition has been filed for issuing a writ of certiorari quashing the order dated 9-10.1.1992 passed by the respondent No.4 rejecting the claim for family pension. Further prayer is  for issuing a writ in the nature of mandamus commanding the respondents to pay the family pension to Ashutosh Nath Sahai, adopted son of late Sri P.N.Sahai and for  issuing a writ in the nature of certiorari quashing and strike down the Government Order dated 23.7.1975 (Annexure 2 filed by the respondents).

The brief facts of the present writ petition are that the petitioner, who claims to be legal guardian of one Sri Ashutosh Nath Sahai has filed the present petition for receiving the amount of family pension and the benefits of Sri P.N.Sahai, who retired as Sub-Station Attendant, working at Allahabad Electricity Supply Undertaking, Allahabad.  A copy of the appointment of Sri Ashutosh Kumar Sahai has been filed as Annexure-1 to the writ petition. Late Sri P.N.Sahai lost his wife and children before his retirement. Due to his bad health, he sought his voluntary retirement from service, which was sanctioned from 31.7.1984.   On 29.5.1985 Sri P.N.Sahai has adopted one Ashutosh Nath Sahai to look after him.  A copy of the adoption deed issued by the competent authority has been filed as Annexure 2 to the writ petition. At the time of adoption Sri Ashutosh Nath Sahai opted his pension after retirement and has also submitted the adoption deed for authorizing Family Pension along with the pension papers duly recommended by the respondent No.3.   The pension was sanctioned without sanctioning the family pension to Sri Ashutosh Nath Sahai adopted son and the matter was referred to by the respondent No.3 to the respondent No.2 vide letter dated 5.2.1988.  The respondent No.2 replied vide its letter dated 24.3.1988 to the Pension Department.  Subsequently, the respondent No.2 in his reply dated 24.3.1988 while accepting the claim of Sri P.N.Sahai, put two conditions to be fulfilled.

(A) It shall be authorized after the death of Sri P.N.Sahai

(B) It will be authorized to the legal guardian of Ashutosh Nath Sahai being a minor.  

      The pensioner died on 8.12.1990 and thereafter the petitioner applied to the District Judge, Allahabad, for appointment as legal guardian of Sri Ashutosh Nath Sahai for the purposes of receiving the family pension from the respondent No.3.  The certificate was granted in favour of the petitioner and an application was made to the Accounts Officer, U.P. State Electricity Board enclosing the documents and authorization for the purposes of family pension in favour of the minor son of Sri P.N.Sahai.  The claim of the petitioner was rejected for payment of family pension vide letter dated 9.1.1992 stating therein that the family pension includes the adopted minor son only if he has been adopted legally before the retirement.  In view of the Government Orders dated 23.7.1975 and 26.11.1987 as Sri P.N.Sahai was retired on 31.7.1984 and he had adopted Ashutosh Nath Sahai on 29.5.1995,  after the retirement, as such he is not entitled for family pension.

It has been submitted on behalf of the petitioner that the order rejecting the claim is against the principle of natural justice as no opportunity to that effect has been given to the petitioner.  The further averment has been made that the Apex Court has already adjudicated the matter in Smt. Bhagwati Vs. Union of India reported in 1989, Supreme Court Page-2890. The Apex Court has held that benefit of family pension cannot be denied after the death of the pensioner to the legally married wife after the retirement.  The earlier provision in rules regarding admissibility of family pension was only to the extent that the wife of a Government servant married before retirement and the child born before the retirement is arbitrary and discriminatory, as such the Supreme Court has held otherwise.  It has been submitted that the Apex Court in the aforesaid case has laid down that marriage after retirement of the government servant does not bar either of the spouse to sanction the family pension under the Rules. No discrimination is permissible between the family of the government servant within service and a family acquired after retirement.  Therefore, similarly, the children born out of wedlock after the retirement will also be entitled for family pension.  Sri P.N.Sahai adopted the son because he lost his eyesight and he was not able to move freely without any support and he has lost his wife and children long ago.  The case of the petitioner is fully covered by principle of promissory estoppels.  

The petitioner has placed reliance upon Rule-54, Sub-Clause (ii) of Sub-Rule-14 of the Pension Rules and has submitted that by notification-dated 18.1.1993, the word ''before retirement' has been omitted; therefore, the adopted son is entitled for family pension.

Counter and rejoinder affidavits have been filed.  Further a supplementary affidavit has also been filed annexing the copy of the Government Order dated 23.7.1975 of the Pension Compilation and it has been stated that as the adopted son after the retirement does not include in family members as defined under Rule-3 (b), therefore, he is not entitled for the family pension.  For the convenience of this Court, Rule-3 (b) is being reproduced below:-

"3(b) ''Family' for purposes of this scheme will include the following relatives of the Government servant:

(i) wife/husband.

(ii) minor sons.

(iii) unmarried minor daughters.

Note1;-(ii) and (iii) above will include children adopted legally before retirement.

Note 2:- Marriage after retirement will not be recognized for purposes of this Scheme.

(c) the pension will be admissible:

(i) In the case of widow/widower up to the date of death or remarriage whichever is earlier.

(ii) In the case of minor son until he attains the age of 18 years.

(iii) In the case of unmarried daughter until she attains the age of 21 years of marriage, whichever is earlier.

       Note:- In cases where there are two or more widows, pension will be payable to the eldest surviving widow, on her death/marriage, it will be payable to the next surviving widow, if any.  The term "eldest" would mean seniority with reference to the date of marriage."

     

In such a way the respondents submit that it has specifically mentioned in the said rule that this will include children adopted legally before retirement and has also been stated that marriage after retirement will not be recognized for the purposes of said claim. It has been argued on behalf of the respondents that in view of the Apex Court judgment, the widow of a government servant, who has performed the marriage after retirement, has been held to be entitled for family pension, therefore, it cannot be said that adopted son after the retirement will also be entitled for the family pension.  Rule 54, upon which reliance has been placed by the petitioner, will not  give entitlement to the adopted son  for the purposes of entitlement of family pension after marriage.  The Government Order dated 13.2.1993 by which words ''before retirement' have been omitted will not include the adopted son for the purposes of entitlement of family pension.  The orders passed by the respondents are wholly correct and cannot be said to be arbitrary and the petition is liable to be dismissed.

On the other hand, a relief to this effect has been sought for striking down the last word "before retirement" by the petitioner in the definition of the family.  It has been submitted that as in view of the Apex Court it has clearly been held that the widow of a pensioner who has been married after retirement of a Government Servant cannot be discriminated and he/she will also be entitled for family pension, therefore, the adopted son cannot be discriminated and he will also be entitled for family pension.

I have heard learned counsel for the petitioner and learned Standing Counsel and have perused the record.

The Court has also perused Rule 54 and the Notification dated 13.2.1993.  After perusal of the aforesaid rule and notification from the plain reading it cannot be inferred that the adopted son after the retirement has been included for entitlement of family pension.  The Government Order dated 23.7.1975 of the Pension Compilation annexed as Annexure 2 to the supplementary affidavit by the respondents clearly excludes the adopted son after the retirement.  The petitioner has placed reliance upon the Apex Court judgment of this Court by which the widow married after the retirement of a government servant has been made entitled for the family pension.  In my opinion, it cannot be inferred that adopted son after the retirement will also be entitled for family pension.

This Court in exercise of jurisdiction under Article 226 of the Constitution of India has full power to look into the situation and the circumstances created by the parties for the purposes of entitlement of a particular benefit.  It is in the common knowledge that the mention of the heirs in the service record is made by the government servant only for the purposes to get an entitlement of the retiral benefits and family pension only for the purposes that a government servant who has retired from service, on account of sudden death, wife and family members may not be in financial hardship.  The purpose of payment of family pension is in case of sudden demise of a government servant on or before the retirement so that the heirs may be supported financially for the purposes of their livelihood. But in the present case, admittedly, the adoption has been done after the retirement and the adopted son was 10 years at the time of adoption.  The purpose of adoption is only to look after the father. Whether a child of 10 years can look after the retired government servant, who himself is not in a position to look after himself.  The 10 years' old child always need help of elders or their parents.  How he can support and look after a man of 65 and 70 years.  It appears to the Court that these types of adoptions are being encouraged by the natural parents only for the entitlement of the property and other benefits for themselves from retired government servants.  The natural parents of the adopted son can only manage the affairs of the retired government servants or adopted father.  The Courts cannot shut their eyes, which are happening in the society.  There may be a case that the real sons and daughters of the retired government servant are serving elsewhere and they ignore their father and do not look after them, then whether in these circumstances, the close relatives of the retired government servants cannot persuade to adopt their son in case the retired government servant is having huge property moveable and immovable only in the garb of inheritance of the said property and other monetary benefits.  The Court has expressed these views only what is happening in the society in the present moment.  But as regards the merit of the aforesaid case regarding the entitlement, in my opinion, as the Government Order dated 23.7.1975 clearly excludes the adopted son after the retirement and at that time the marriage after the retirement was also not recognized for the purposes of the said scheme but in view of the Apex Court judgment now the marriage after retirement has been recognized for the purposes of payment of family pension.

It is to be noted that adoption was on 29.5.1985 and on that day Sri Ashutosh Nath Sahai according to adoption deed was 10 years of age.  Now he is of 30 years.  According to Pension Regulation also the family pension is to be paid only up to 25 years, therefore, in my opinion, no fruitful purpose will be served in spite of the fact that the petitioner may have been entitled for family pension.  The payment of family pension is only to give financial assistance to the family.  Now the adopted son has become major and as I have held that in view of the Government Order, the adopted son after marriage has been excluded, therefore, in my view the petition deserves to be dismissed.

In view of the aforesaid fact, I find no merit in the writ petition and the petitioner is hereby dismissed.    

There shall be no order as to costs.

Dated:  September        , 2005

SKD          


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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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