Jhuma Bardhan vs Union Of India And Ors

[1] Heard Ms. P. Dhar, learned counsel appearing for the petitioner as well as Ms. S. Deb Gupta, learned counsel appearing for the respondents.

[2] The petitioner is admittedly the unmarried daughter of late Rakhal Chandra Bardhan and Smt. Pushpa Bardhan. Rakhal Chandra Bardhan died on 10.10.2012 leaving behind his family comprised of Smt. Pushpa Bardhan, since deceased, his daughters Smt. Ruma Bardhan and Smt. Jhuma Bardhan, and sons Sri Raju Bardhan and Sri Pinaki Bardhan. Rakhal Chandra Bardhan was working as the Amb. Instructor-II (K/C) under KVIC, State Office, Agartala. He had retired from the service on 30.09.2004 and by virtue of the pension Payment Order [Annexure-1 to the writ petition] he had started to get his pension. But after his death on 10.10.2012, his wife Pushpa Bardhan continued to have the family pension till her death on 15.12.2014. Pushpa Bardhan is survived by Smt. Ruma Bardhan [married daughter], Sri Raju Bardhan [son], Sri Pinaki Bardhan [son] and Smt. Jhuma Bardhan [unmarried daughter], the petitioner herein. In order to establish the heirs of Rakhal Chandra Bardhan a copy of the survival certificate has been placed in the writ petition [Annexure-4]. After death of Pushpa Bardhan, the petitioner applied for the pension under the Central Civil Services [Pension] Rules, 1972 as adopted by the respondents and in terms of the Government of India notification No.1/13/09-P&PW(E) dated 28.04.2011 [Annexure-5 to the writ petition], but the said pension was not released by the respondents contending that the petitioner has income more than Rs.2550/- per month. The petitioner by filing the rejoinder has stoutly contended that the respondents while coming to that inference, did not consider the income certificate [part of Annexure-9 to the writ petition] which had been filed by the petitioner for having her pension. The income certificate since is the bone of contention for the parties is extracted as a whole for purpose of reference.

GOVERNMETN OF TRIPURA OFFICE OF THE SUB-DIVISIONAL MAGISTRATE JIRANIA, WEST TRIPURA [VALID UPTO 6(SIX) MONTHS)]

INCOME CERTIFICATE

No.2434.F.10(18)/P-I/SDM/PRTC/JRN/16 dated 25.07.2018

Certified that the monthly family/personal income in favour of Smt. Jhuma Bardhan, daughter of late Rakhal Chandra Bardhan of village R.K. Nagar P.O. West Noabadi, P.S. Bodhjungnagar, District- West Tripura is Rs.5000/- (Rupees Five thousand) per month only from all source [as per field inquiry].

Sd/

Illegible

Sub-Divisional Magistrate Jirania, West Tripura

[3] It is evident from the certificate dated 25.07.2018 that the Sub-Divisional Magistrate, Jirania, West Tripura has certified that the monthly family income of the petitioner is Rs.5,000/-. The word 'personal' that is appearing in the said certificate has been clearly scored out by the SDM retaining the word family therein. In the rejoinder, the petitioner has categorically asserted that the income certificate issued by the SDM, Jirania was the income of the petitioner's family [See Para-9 of the rejoinder]. According to the petitioner, the ground for refusal of pension is quite unsustainable inasmuch as by the office memorandum under No.1/19/03-P & PW(E) dated 06.09.2007 the provision for extending family pension to the unmarried daughter to the central government servants/pensioner has been made. It has also been provided that the unmarried daughter beyond 25 years of age shall also be eligible for family pension at par with the widowed/divorced daughters subject to the other conditions being fulfilled. Grant of family pension to unmarried/widowed/divorced daughters shall be payable in order of their date of birth and the younger of them will not be eligible for family pension unless the next above her has become ineligible for grant of family pension. It is further clarified that the family pension to the unmarried/widowed/divorced daughters above the age of 25 years, shall be payable only after the other eligible children below the age of 25 years have ceased to be eligible to receive the family pension and that there is no disabled child to receive the family pension.

[4] What the respondents have objected to, is that since the petitioner is earning Rs.5,000/- per month as, according to them, is evident from the income certificate which has been produced with the format for making prayer for getting the pension she would not get the pension. In the reply, the respondents No.2 & 4 have asserted further that extension of family pension to the unmarried daughters of Central Government servant is subject to condition that she shall not have an income exceeding Rs.2550/- per month from the employment in government, the private sector and self employment etc. to be eligible for family pension. They have again reiterated having reference to the income certificate that has been produced by the petitioner that she had monthly income of Rs.5,000/- per month and hence, in terms of the office memorandum dated 06.09.2007 [Annexure-R/1 to the reply filed by the respondents No.2 & 4], the petitioner is not entitled to get the extended benefit of pension. From reading of the said office memorandum dated 06.09.2007 it appears clearly that there is prohibition in the office memorandum to the extent that the unmarried daughters left by the Central Government employee or pensioner will not be eligible to get the family pension if she had earning of Rs.2550/- per month. Be that as it may, in the case in hand, the petitioner has categorically stated that she does not have any income. No document is expected from a non-earning person but if it were there is a proof that the person who claims to have no earning is really earning, such proof shall be laid by the person who is claiming that that person is earning contrary what he has claimed. In the present case, this court has been persuaded to peruse the income certificate which has been enclosed with the form for seeking the pension. From the said certificate, it clearly transpires that the certificate that has been issued by the SDM, Jirania, West Tripura is in respect of the 'monthly family income' which has been issued in favour of the petitioner. Nowhere, the said certificate has recorded that the petitioner is earning personally a sum of Rs.5,000/- per month. Thus, the objection raised by the respondents has not been laid on any foundation and accordingly, their objection stands discarded.

[5] In the result, the petitioner is declared to be eligible to have the family pension as the unmarried daughter of Rakhal Chandra Bardhan and Pushpa Bardhan. Further, except the petitioner no one in the family whose name clearly appears in the in the survival certificate dated 08.07.2015 [Annexure-4 to the writ petition] is eligible to get any benefit out of the said office memorandum dated 28.04.2011 and hence, there is no embargo to provide or release the family pension in favour of the petitioner.

[6] Having observed thus, the respondents are directed to provide the family pension in favour of the petitioner w.e.f. 16.12.2014 in terms of the CCS(Pension) rules as adopted by the respondent No.3. The pension and the arrears are to be paid within a period of 3[three] months from the date when a copy of this order will be placed by the petitioner. The necessary orders and formalities are to be passed or completed within that stipulated period.

In the result, this writ petition stands allowed to the extent as indicated above.

There shall be no order as to costs.