Dismissed

The Assistant Provident Fund Commissioner (Pension) v. Rani Bodheswaran

Kerala HC23 Jan 2018WA/151/2018

Case brief

AI extract

What is this about?

This Division Bench held that a post-retiral spouse is entitled to family pension, relying on the Apex Court decision in Smt. Bhagwanti v. Union of India. The court declared Paragraph 7.10.1.15 of the Manual of Accounting Procedure unconstitutional as per Article 14 and dismissed the appeal.

What did the court decide?

Writ appeal dismissed; no merit in the contention that post-retiral spouse is ineligible for pension.

The Assistant Provident Fund Commissioner… — Pension and Retirement Benefits | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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TUESDAY, THE 23RD DAY OF JANUARY 2018 / 3RD MAGHA, 1939

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WA.No. 151 of 2018 IN WPC. 12095/2009

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AGAINST THE JUDGMENT IN WP(C) 12095/2009 of HIGH COURT OF KERALA DATED 25.7.2017

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APPELLANT/1ST RESPONDENT

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THE ASSISTANT PROVIDENT FUND COMMISSIONER (PENSION) BHAVISHYANIDHI BHAVAN, KALOOR, KOCHI - 682 017.

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BY ADV.SRI.S.PRASANTH

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RESPONDENTS/PETITIONER & RESPONDENTS 2 AND 3:

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1. RANI BODHESWARAN AGED 47 YEARS, W/O. LATE SRI, BODHESWARAN, RESIDING AT MANJAMKUZHIYIL HOUSE, CHEMBRASSERY P.O, PANDIKKAD, MALAPPURAM - 676 521.

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2. RAJALEKSHMI R., INDRALAYAM, CHERANALLOOR P.O, EDAPPALLY NORTH, KOCHI - 682 024.

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3. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF LABOUR, NEW DELHI - 110 001.

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R1 BY SRI.ANIL S.RAJ R3 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2 BY SMT.K.V.RESHMI

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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VPV

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“C.R.”

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P.N.RAVINDRAN & R.NARAYANA PISHARADI, JJ.

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W.A.No.151 of 2018

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Dated this the 23^rd day of January, 2018

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JUDGMENT

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P.N.Ravindran, J.

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The appellant is the first respondent in W.P.(C)No.12095 of 2009, a writ petition filed by the first respondent herein challenging Ext.P5 letter dated 19.6.2006 sent by the appellant to her husband late Bodheswaran K.U. that his request for change of family/nominee details in the Pension Payment Order cannot be acceded to. By judgment delivered on 25.7.2017, a learned single Judge of this court allowed the writ petition, quashed Ext.P5 and directed the appellant to enter the writ petitioner's name in the Pension Payment Order in the place of the second respondent, for the purpose of granting pensionary benefits. The appellant has, aggrieved thereby, filed this writ appeal. The brief facts of the case are as follows:

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The first respondent herein is the wife of late Bodheswaran K.U., a former employee of Fertilizers and Chemicals Travancore Limited. Bodheswaran was initially married to Rajalekshmi R., the second respondent in the writ petition/writ appeal. After Bodheswaran voluntarily retired from service, he and his wife Rajalekshmi filed a

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joint petition for divorce before the Family Court, Ernakulam as O.P.No.214 of 2005, under Section 13B of the Hindu Marriage Act, 1955, praying for a decree dissolving their marriage by mutual consent. A copy of the said application is on record as Ext.P2. On that application, the Family Court, Ernakulam passed a decree of divorce on 31.3.2005. Ext.P3 is a copy of the order passed in that regard by the Family Court, Ernakulam. Bodheswaran thereafter married the writ petitioner on 30.4.2006. Their marriage was registered on 5.5.2006 under the Hindu Marriage (Kerala) Rules, 1963, by the Registrar of Marriages/Secretary, Angadippuram Grama Panchayat, where the marriage was solemnised. Ext.P4 is a copy of the marriage certificate issued by the Registrar of Marriages/Secretary, Angadippuram Grama Panchayat, under the Hindu Marriage (Kerala) Rules, 1963. Bodheswaran thereafter sent a letter dated 10.5.2006 to the appellant with a request that the name of the writ petitioner, whom he had married on 30.4.2006 after divorcing Rajalekshmi, the second respondent herein, may be substituted in the Pension Payment Order in the place of the second respondent. The appellant rejected that request and communicated his decision to Bodheswaran by Ext.P5 letter dated 19.6.2006. Bodheswaran passed away on 26.10.2008. The first respondent, his wife, thereafter filed W.P.(C)No.12095 of 2009 in this court challenging Ext.P5 and seeking the following reliefs:

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W.A.No.151 of 2018

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“ For these and other grounds to be urged at the time of hearing, it is respectfully prayed that this Honourable Court may be pleased to issue a writ, order or direction.

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i. in the nature of certiorari or any other appropriate writ order or direction quashing Exhibit P5 as illegal and unsustainable.

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ii. in the nature of mandamus or any other appropriate writ order or direction to the first respondent to disburse monthly pension to the petitioner as the wife of the Late Shri.Bodeshwaran;

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iii. Declaring that the petitioner is entitled to pension and return of capital under the provisions of the Employees Pension Scheme, 1995;

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iv. awarding the costs of this petition to the petitioner;

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v. any other order this Honourable Court deems fit. ”

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She contended that the reasoning given in Ext.P5 is without the sanction or authority of law, that the second respondent ceased to be

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the wife of Bodheswaran on 31.3.2005, even before the commencement of payment of pension and therefore, being the lawfully wedded wife of Bodheswaran ever since 30.4.2006, she is entitled to the pensionary benefits.

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The appellant resisted the writ petition by filing a counter affidavit dated 4.6.2009 wherein it was inter alia contended that in view of paragraph 7.10.1.15 of the Manual of Accounting Procedure, the post retiral spouse cannot be considered as a family member. It was contended that in view of the provisions contained in paragraph 7.10.1.13 of the Manual of Accounting Procedure, he has a statutory duty to release the entire benefits to the second respondent and her children, who alone are entitled to be considered/treated as family

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members of Bodheswaran as defined in paragraph 2(vii) of the Employees' Pension Scheme, 1995. Later, the appellant's counsel filed a statement dated 19.6.2017 wherein it was contended that as the marriage between the writ petitioner and Bodheswaran was solemnised after he had ceased to be a member of the Employees' Pension Scheme, the writ petitioner cannot be treated as a family member of Sri.Bodheswaran. Reliance was placed on the definition of the term “member” occurring in Paragraph 2(ix) and the stipulations in Paragraph 6A of the Employees Pension Scheme, 1995. The first respondent further contended that as Bodheswaran had nominated Rajalekshmi to receive widow pension and other benefits, the writ petitioner is not entitled to any relief. The learned single Judge considered the rival contentions and allowed W.P.(C)No.12095 of 2009 by judgment delivered on 25.7.2017. The appellant has, aggrieved thereby, filed this writ appeal.

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We heard Sri.S.Prasanth, learned counsel appearing for the appellant. We have also gone through the pleadings and the materials on record. Rajalekshmi, the second respondent herein, was the legally wedded wife of Bodheswaran when she was nominated to receive pensionary benefits upon his death. Bodheswaran, who was an employee of Fertilizers and Chemicals Travancore Limited, voluntarily retired from service on 17.1.2005. Thereupon, he was sanctioned

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pensionary benefits from 4.4.2005 onwards. Bodheswaran and the second respondent herein had, after he voluntarily retired from service, filed a joint petition for divorce before the Family Court, Ernakulam under Section 13B of the Hindu Marriage Act, 1955. On that application, a decree dissolving the marriage between Bodheswaran and his wife, the second respondent, was passed by the Family Court, Ernakulam on 31.3.2005. Thus, even before commencement of payment of pensionary benefits, the second respondent ceased to be the wife of Bodheswaran. He married the petitioner on 30.4.2006 and thereafter sent a letter dated 10.5.2006 to the appellant, requesting that the name of the writ petitioner may be substituted in the place of the second respondent. It was that request which was rejected by the impugned order on the short ground that the post retiral spouse cannot be considered as a family member.

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The question whether the spouse of a Government servant, whom he had married after his retirement from service and the children born in that marriage are entitled to pensionary benefits, came up for consideration before the Apex Court in Smt.Bhagwanti v. Union of India [1989 (4) SCC 397]. Smt.Bhagwanti was the widow of an ex Subedar of the Indian Army, who retired from service after completing 18 years of service on 3.8.1947 and was given pension. After his retirement, his wife passed away in the year 1955.

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He thereafter married Smt.Bhagwanti in the year 1965 and in that marriage two children were born. He died 20 years later in an accident. The application submitted by Smt.Bhagwanti for family pension was not granted for the reason that the marriage was after retirement. Reliance was placed on Rule 54(14)(b) of the Central Civil Services (Pension) Rules, 1972, which, as it then stood, read as follows:

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“(b) 'Family' in relation to a Government servant means(i) wife in the case of a male Government servant, or husband in the case of a female Government servant, provided the marriage took place before retirement of the Government servant;

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(ii) son who has not attained the age of twenty-one years and unmarried daughter who has not attained the age of thirty years, including such son and daughter adopted legally before retirement but shall not include son or daughter born after retirement.”

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After considering Rule 54(14)(b) of the Central Civil Services (Pension) Rules, 1972, wherein it had been stipulated that family in relation to the Government servant means wife in the case of male Government servant or husband in the case of female Government servant, provided the marriage took place before the retirement of the Government servant and the further stipulation that only children who are born before retirement or adopted before retirement will fall within

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the definition of the term family, the Apex Court held that the two limitations incorporated in the definition of the term 'family' suffer from the vice of arbitrariness and discrimination and cannot be supported by nexus or reasonable classification. The Apex Court held that the words 'provided the marriage took place before retirement of the Government servant' occurring in clause (i) of Rule 54(14)(b) and the words 'but shall not include son or daughter born after retirement' occurring in clause (ii) thereof, are ultra vires Article 14 of the Constitution of India and cannot be sustained. The Apex Court accordingly directed the Union of India to extend to the petitioner, the admissible family pension. Pursuant thereto, Rule 54(14)(b) of the Central Civil Services (Pension) Rules, 1972 was amended and it reads as follows:

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“ 54. Family Pension, 1964.

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x x x

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(14) For the purpose of this rule,--

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(a) xxxxxxxxx

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(b) “family” in relation to a Government servant means-(i) wife in the case of a male Government servant, or husband in the case of a female Government servant.

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(ia) a judicially separated wife or husband, such separation not being granted on the ground of adultery and the person surviving was not held guilty of committing adultery.

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(ii) unmarried son who has not attained the age of twentyfive years and unmarried or widowed or divorced daughter, including such son and daughter adopted legally;

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(iii) dependent parents;

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(iv) dependent disabled siblings (i.e. brother or sister) of a Government servant. ”

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The very same issue arose before this court in W.P.(C) No.37535 of 2008. N.Dharmarajan, the petitioner in W.P.(C) No.37535 of 2008 was an employee of Northern Coal Fields Limited. He retired from service on 15.4.2000. He was a member of the Coal Mines Pension Scheme, 1998, framed under the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948. His wife, who was entitled to receive family pension under the Pension Scheme, died prior to the retirement of N.Dharmarajan. After retirement, N.Dharmarajan married Omana on 15.12.2006. He thereafter submitted an application to his employer to make necessary entries in the records pertaining to the Coal Mines Pension Scheme, 1998, to enable his wife Omana to claim pension. That request was rejected. This in turn led to W.P.(C) No.37535 of 2008 being instituted in this court. Relying on the decision of the Apex Court in Smt.Bhagwanti (supra), a learned single Judge of this court allowed the writ petition. The Assistant Commissioner, Coal Mines Pension Fund, Coal Mines Pension Fund Office, Jayant Collery Post, Sindhi District, Madhya Pradesh, thereupon filed W.A.No.968 of 2014 in this court. Relying on the definition of the term “family” occurring in clause 2(h) of the Pension Scheme, it was contended that a post retiral spouse is not taken in by the definition of the term “family”. Following the decision of the Apex Court in Smt.Bhagwanti (supra), the Division Bench dismissed W.A.No.968 of

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2012 by judgment delivered on 2.9.2014. The relevant portion of the judgment reads as follows:

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“ 5. The contention of the appellant is that in view of the provisions of the Scheme, the post-retiral spouse of an employee would not come within the definition of 'family' in the Scheme and he/she cannot, therefore, claim the benefit of the Scheme. Clauses 2(g) and 2(h) of the Scheme were relied on in support of the said contention. Clauses 2(g) and 2(h) of the Scheme read thus :

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“2(g): 'employee' means an employee of the Coal Mines in respect of which the Coal Mines Provident Fund Schemes have been made applicable.

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2(h): 'family' in relation to an employee means:-

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(i) wife in the case of a male employee or husband in the case of a female employee,

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(ii) a judicially separated wife or husband, such separation not being granted on the ground of adultery and the person surviving was not held guilty of committing adultery, and

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(iii) son who has not attained the age of twenty five years and unmarried daughter who has not attained the age of twenty five years including such son or daughter adopted legally before superannuation.”

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The above Clauses define 'employee' and 'family'. True, 'family', which includes the spouse, is defined under the Scheme with reference to an employee. But the very purpose of the pension being one to provide sustenance in the old age, and since pension is payable on a consideration of the past service rendered by the pensioner, the classification of the claimants for family pension with reference to their date of marriage is wholly arbitrary. In Bhagwanti v. Union of India (supra), the vires of a provision in the Central Civil Services (Pension) Rules, which excludes post-retiral spouses from claiming family pension was under consideration. It was

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held by the Apex Court in that case that the consideration upon which pension is admissible or the benefit of the family pension has been extended do not justify the distinction envisaged in the definition of 'family' by keeping the postretiral spouses out of it. The issue in this case is also substantially the same.

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6. The learned counsel for the appellant contended that the judgment of the Apex Court referred to above does not apply to the facts of this case, as the same was rendered in the context of Central Civil Services (Pension) Rules, 1972 and the principle laid down in that case cannot be applied to the Scheme, which is a contributory pension scheme. As far as the rights of the claimants for family pension are concerned, in so far as no contribution is payable after the retirement of the employee under a contributory pension scheme, there is virtually no difference between the Central Civil Services (Pension) Rules, 1972 and the Scheme.

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There is, therefore, no merit in the Writ Appeal and the same is accordingly, dismissed. ”

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The issue raised in the instant case is in our opinion exactly

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similar. Paragraph 2(vii) of the Employees' Pension Scheme, 1995, defines the term “family” as follows:

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“ (vii) “family” means-

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(i) wife, in the case of male member of the Employees' Pension Fund;

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(ii) husband, in the case of a female member of the Employees' Pension Fund; and

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(iii) sons and daughters of a member of the Employees' Pension Fund;

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Explanation.- The expression “sons” and “daughters” shall include children legally adopted by the member. ”

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Paragraph 2(ix) of the Employees' Pension Scheme, 1995,

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defines the term “member” as follows:

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“(ix) “member” means an employee who becomes a member of the Employees' Pension Fund in accordance with the provisions of this Scheme; Explanation.- An employee shall cease to be the member of Pension Fund from the date of attaining 58 years of age or from the date of vesting admissible benefits under the Scheme, whichever is earlier.”

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Paragarph 6A of the Employees' Pension Scheme stipulates that “A member of the Employees' Pension Fund shall continue to be such member till he attains the age of 58 years or he avails the withdrawal benefit to which he is entitled under para 14 of the Scheme, or dies, or the pension is vested in him in terms of para 12 of the Scheme, whichever is earlier”. Relying on the aforesaid provision as also paragraph 7.10.1.15 of the Manual of Accounting Procedure it was contended before us that as late Bodheswaran ceased to be a member of the Employees' Pension Scheme, 1995 from the date he availed pension in terms of paragraph 12 of the Employees' Pension Scheme, 1995, the writ petitioner cannot be treated as a family member of Bodheswaran and therefore, the writ petitioner, whom Bodheswaran had married on 30.4.2006 after he voluntarily retired from service and ceased to be a member of the Employees' Pension Scheme is not entitled to widow's pension as his legally wedded wife. We find no merit in the said contention as well. Paragraph 7.10.1.15 of the Manual of Accounting Procedure reads as follows:

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“ 7.10.1.15 PENSION TO POST-RETIRED SPOUSE/CHILDREN

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The post retiral spouse and the children are not eligible for widow/widower pension or children pension, as the case may be. Similarly, a child adopted after drawal of pension is not eligible. ”

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Paragraph 7.10.1.15 of the Manual of Accounting Procedure is almost identical to the provisions contained in Rule 54(14)(b) of the Central Civil Services (Pension) Rules, 1972 as it originally stood. In the light of the binding decision of the Apex Court in Smt.Bhagwanti (supra), the aforesaid stipulation cannot, in our opinion, operate to the disadvantage of the writ petitioner.

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We accordingly hold that there is no merit in the writ appeal. It fails and is dismissed.

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Sd/-

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P.N.RAVINDRAN JUDGE

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Sd/-

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R.NARAYANA PISHARADI JUDGE

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vpv/kav

The Assistant Provident Fund Commissioner (Pension) v. Rani Bodheswaran

Case brief

What is this about?

What did the court decide?

The Assistant Provident Fund Commissioner (Pension) v. Rani Bodheswaran

Case brief

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