The Calcutta High Court held that the benefit of family pension cannot be extended to the widowed daughter of a pensioner who was married at the time of her parents. The court held that even a daughter who has become a widow after the death of her father/mother has no Fundamental or Statutory right to claim the benefit of a family pension.
A bench of Justice Harish Tandon: and Justice Rabindranath Samant was to decide whether the daughter of a pensioner, who was married but became a widow after the death of the pensioner, would be entitled to family pension.
The Court, in consultation, submitted:
“As indicated by the intention of the legislative and Fundamental Right, if we see, the scheme of family pension has never included the daughter of a pensioner, she does not have any fundamental or statutory right to get the benefit of family pension. In this case, the daughter of a family pensioner cannot get the benefit of a family pension under any law. If we use our incredible or discretionary power to come to any conclusion contrary to the decision of the Government, it would be the folly of the Court.”
Thus, the Court submitted that such cases have come to the fore in the past, such as that of the Union of India challenging an order passed by the Central Administrative Tribunal, Calcutta Bench, Kolkata on 16th June 2016 under which the Ministry of Personnel, and Pension, Pensioners’ Welfare, Government of India’s petition because it was unconstitutional and opposed to public policy.
Related to this, the officers were ordered to continue with the disbursement of family pension in the form of the dependent daughter of a deceased pensioner, which was to be released within two months.
A pensioner, Gopal Das was a driver of the Eastern Railway and retired from service upon retirement on 10 September 1980. He was entitled to a railway pensioner, and died on May 19, 1985. After his death, his wife Namita Das was receiving a pension. She also passed away on May 5, 1991.
The deceased parents had married their daughter to Rishikesh Sarkar, but after the death of her pensioner mother Namita Das, her husband also died untimely on August 3, 1993, two years later.
The Court, given Rule 54(6) of the Central Civil Services (Pension) Rules, 1972, establishes that a daughter becomes ineligible for family pension under this sub-rule from the date of her marriage.
In addition, the rule also stipulates that the family pension payable to the son or daughter will be stopped if they start earning their livelihood.
The Court submitted: “Rule 54(6) of the CCS (Pension) Rules read together all the relevant Memorandums of the Railways to conclude that this Legislature wanted that the benefit of family pension would be extended to the unmarried only. Girl 25 years or until she gets such benefit, it was extended to the widow/divorced daughter of a pensioner above the age of 25 years”.
The Court further elaborated that the legislature has given the benefit of family pension to the child/children of the pensioner after the death of the pensioner under different circumstances. For example, a note was made that if the child is mentally retarded, a legislative blessing is given to get a family pension for life after the death of his parents. But, such benefit cannot be given to a married daughter.
It was further stated that the memorandum submitted by the Clarification Office dated September 18, 2014, cannot be said to be discriminatory and unconstitutional.
It was clarified in the Office Memorandum that family pension should not be given in cases where it has been sanctioned in pursuance of the Office Memorandum, but irrespective of the fact that the widow/divorced daughter was leading a married life at the time of the death of her father/mother, who after died of her husband and hence cannot claim for family pension.
It would, therefore, be appropriate that the family pension payable to such daughter should be stopped to maintain equality in law. In the end, the court dismissed the petition by the widowed daughter.