Bhawani Devi & Anr vs State of Bihar & Ors

Heard Mr. Rajesh Kumar Sharma, learned Advocate for the petitioners, and Mr. Subhash Prasad Singh, learned Advocate for the State.

At the outset, learned Advocate for the petitioners seeks permission to make the Accountant General (A&E), Bihar, Patna, as party respondent no.8 in the writ petition in the course of the day.

Permission is accorded.

The petitioner no. 1 is the hapless widow of the erstwhile employee, whereas petitioner no. 2 is her physically handicapped and disabled son. They have approached this Court seeking, inter alia, a direction upon the respondent authorities to provide appropriate financial support/maintenance to the petitioners from the salary being drawn by respondent no. 7, who was appointed to the post of Teacher on compassionate ground on account of the unfortunate demise of the husband of petitioner no. 1, who died in harness on 05.09.1998 while discharging his duties as a Teacher, leaving behind the petitioners and respondent no. 7, amongst other family members.

The petitioners have also sought modification of the order dated 06.10.2023, contained in Memo No. 2588, passed by the District Programme Officer (Establishment), Bhagalpur, whereby an amount of Rs.10,000/- per month was directed to be paid to petitioner no. 1 and her handicapped son towards maintenance. It has been contended that the said amount has been fixed without taking into consideration the fact that respondent no. 7, who obtained compassionate appointment on account of the death of the husband of petitioner no.1, is presently receiving a salary of more than Rs.85,000/- per month.

Learned Advocate for the petitioners submits that after the death of the husband of petitioner no. 1 in harness on 05.09.1998, respondent no. 7, being the elder son of the deceased employee, applied for appointment on compassionate ground. The application for compassionate appointment was duly considered by the competent authority on the basis of an affidavit furnished by the petitioners and other members of the family, wherein they had expressed their consent and had raised no objection to the appointment of respondent no. 7, subject to the undertaking that he would maintain his mother, i.e. petitioner no. 1, and his handicapped brother, i.e. petitioner no. 2.

Pursuant to the aforesaid undertaking, respondent no. 7 was appointed as an Assistant Teacher on compassionate ground. It is further contended that petitioner no. 1 was subsequently sanctioned family pension vide PPO No. S/89445 issued by the Office of the Accountant General (A&E), Bihar. Since petitioner no. 1 was facing considerable financial hardship in maintaining herself as well as her handicapped son, she repeatedly requested respondent no. 7 to provide financial assistance and discharge the responsibility which he had undertaken at the time of seeking compassionate appointment. However, according to the petitioners, respondent no. 7 failed to extend the requisite financial support. Having no other efficacious remedy, petitioner no. 1 submitted a detailed representation before the District Programme Officer (Establishment) Bhagalpur, narrating the entire factual background and the difficulties being faced by her and her handicapped son. Pursuant to the aforesaid representation, the parties were called before the office of the District Programme Officer (Establishment), Bhagalpur. However, instead of determining the entitlement of petitioner no.1 in accordance with the applicable rules governing family pension, the authority appears to have taken into consideration the salary of respondent no. 7 along with the family pension being received by petitioner no. 1 and thereafter proceeded to divide the aggregate amount amongst seven family members, including the sons and daughters of respondent no. 7.

Learned Advocate for the petitioners further argued that petitioner no. 1 was initially receiving family pension of approximately Rs.19,000/- per month. However, pursuant to the aforesaid exercise, the amount payable to her was reduced to Rs.10,000/- per month. According to learned counsel for the petitioners, such reduction has resulted in an arbitrary curtailment of the statutory entitlement of a widow to receive family pension and has caused grave financial prejudice to petitioner no. 1 and her disabled son.

Per contra, learned Advocate for the State, while refuting the submissions advanced on behalf of the petitioners, submits that the action impugned herein was taken pursuant to the representation submitted by petitioner no.1 and after the presence of the members of the family was ensured before the concerned authority. It is, however, fairly submitted that the District Programme Officer (Establishment), Bhagalpur, subsequently recommended, vide Letter No.186 dated 01.03.2024, revision of the family pension payable to petitioner no. 1 and forwarded the original service book to the competent authority for the said purpose.

This Court has considered the rival submissions advanced on behalf of the respective parties and has carefully perused the materials available on record, including the impugned order dated 06.10.2023, contained in Memo No.2588, which has been brought on record as Annexure-P/4 to the writ petition.

On a careful consideration of the impugned order, this Court finds that the manner in which the family pension of petitioner no. 1 has been dealt with by the District Programme Officer (Establishment), Bhagalpur, is wholly unsustainable in law. The impugned order does not disclose any statutory provision, rule, circular or governmental instruction conferring jurisdiction upon the said authority to take into account the salary of respondent no. 7, club the same with the family pension payable to petitioner no. 1, and thereafter distribute the aggregate amount amongst the members of the family.

Family pension is not, in its legal character, an amount forming part of the salary or income of the family as a whole, which can be pooled together and thereafter apportioned at the discretion of an administrative authority. The entitlement to family pension flows from the applicable pension rules and the sanction granted by the competent pensionary authority. Once such entitlement has been duly determined and sanctioned, any alteration, reduction or withholding thereof must necessarily have the authority of law and must be traceable to a specific statutory provision or rule.

The impugned order, however, does not refer to any such enabling provision. There is no discussion as to the source of jurisdiction under which the District Programme Officer (Establishment), Bhagalpur assumed the authority to recompute the family pension of petitioner no. 1 by taking into account the salary of respondent no. 7. Equally, there is no finding in the impugned order that petitioner no. 1 had ceased to satisfy any of the conditions prescribed under the applicable pension rules for continuance of family pension.

The fact that respondent no. 7 is the son of petitioner no. 1 and is in receipt of salary by virtue of his compassionate appointment cannot, by itself, furnish a lawful basis for reduction of the family pension payable to petitioner no. 1. The salary earned by respondent no. 7 pursuant to his appointment and the family pension sanctioned in favour of petitioner no. 1 operate in two distinct legal fields. In the absence of a specific statutory provision providing otherwise, the two cannot be clubbed together merely for the purpose of determining or reducing the entitlement of petitioner no. 1.

It is also significant that the compassionate appointment granted to respondent no. 7 was founded upon the circumstances arising out of the death of the deceased employee in harness and, as asserted by the petitioners, was accompanied by an undertaking on the part of respondent no. 7 to look after and maintain his mother and his handicapped brother. Such undertaking may give rise to an independent obligation enforceable in accordance with law; however, the existence of such obligation cannot authorise an administrative authority, in the absence of statutory sanction, to curtail or redistribute the family pension otherwise payable to petitioner no. 1.

The approach adopted by the concerned authority is, therefore, legally impermissible. An administrative authority is required to act within the four corners of the statute and the rules governing the field. It cannot, on considerations of equity, sympathy or family arrangement, assume a power which has not been conferred upon it by law. While the plight of petitioner no. 1 and her handicapped son may certainly warrant appropriate consideration by the competent forum, such consideration cannot be made the basis for altering a pensionary entitlement in a manner unknown to the applicable rules.

This Court is also of the considered view that the reduction of the family pension of petitioner no. 1 from approximately Rs.19,000/- per month to Rs.10,000/- per month, without reference to any statutory provision or lawful order of the competent pension-sanctioning authority, suffers from an inherent jurisdictional infirmity. The impugned order does not disclose any adjudication regarding the cessation, suspension or lawful reduction of the family pension. The authority has proceeded merely on the basis of an arithmetical exercise by clubbing the income of different members of the family, which cannot substitute the statutory determination of pensionary entitlement.

The subsequent recommendation made by the District Programme Officer (Establishment), Bhagalpur, vide Letter No.186 dated 01.03.2024, recommending revision of the family pension of petitioner no. 1 and forwarding the original service book, also lends support to the conclusion that the pensionary entitlement of petitioner no. 1 requires determination by the competent pensionary authority in accordance with the applicable rules. Any revision, if otherwise permissible, has to be undertaken by the authority competent under the pension rules and cannot be brought about merely through an order of the District Programme Officer (Establishment).

In the aforesaid facts and circumstances, this Court is constrained to hold that the impugned order dated 06.10.2023, contained in Memo No.2588, has no sustainable legal foundation insofar as it purports to reduce and/or appropriate the family pension of petitioner no. 1. The same, therefore, cannot be permitted to stand and is hereby set aside.

It is, accordingly, directed that petitioner no. 1 shall be entitled to receive her family pension in accordance with the sanction/order of the competent pensionary authority, together with the revised pension, if any, and all consequential arrears, subject to proper verification and sanction by the Accountant General, Bihar, and in accordance with the applicable pension rules.

It is made clear that the family pension payable to petitioner no. 1 shall not be reduced, adjusted or apportioned on the basis of the salary being drawn by respondent no. 7, unless such action is expressly authorised by the applicable statutory rules and is taken by the competent authority in accordance with law.

So far as the grievance of petitioner no. 1 regarding financial support and maintenance from respondent no. 7 is concerned, this Court is of the view that the same constitutes a distinct issue. The undertaking, if any, furnished by respondent no. 7 at the time of obtaining compassionate appointment, as well as his corresponding obligation, may be examined by the competent authority/forum in accordance with the applicable law. The petitioner no. 1 shall, therefore, be at liberty to approach the competent authority/court for enforcement of her right to maintenance and financial support from respondent no. 7, in accordance with law.

The writ petition stands allowed to the aforesaid extent.

There shall be no order as to cost(s).