Kunal s/o Bhagwat Fegade vs The State of Maharashtra and Ors.

“c. By issuing writ of certiorari or any other appropriate writ in the nature of certiorari, the impugned order dated 10.02.2022 passed by the Respondent No.4 Education Officer (Primary), Zilla Parishad, Jalgaon (Exhibit “AE”) may kindly be quashed and set aside ;

d. By issuing writ of mandamus or any other appropriate writ in the nature of mandamus, the respondents may kindly be directed to grant family pension and consequential other financial benefits which are payable by virtue of the death of Bhagwat Kanhu Fegade and Lalita Bhagwat Fegade.

e. By issuing writ of mandamus or any other appropriate writ in the nature of mandamus, the respondents may kindly be directed to grant interest on delayed payments made by the respondents.”

SHORN OF UNNECESSARY DETAILS THE FACTS IN BRIEF ARE AS UNDER :-

SUBMISSIONS :

CONSIDERATION :

“8.

Capacity of a female Hindu to take in adoption.―Any female Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption:

Provided that, if she has a husband living, she shall not adopt a son or daughter except with the consent of her husband unless the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

12.

Effects of adoption.―An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:

Provided that―

(a)

the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;

(b)

any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;

(c)

the adopted child shall not divest any person of any estate which vested in him or her before the adoption.”

116. Family Pension, 1964 -

(16)

For the purpose of this rule-

(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 [*];

(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;

(iii)

son who has not attained the age of twenty-one years and unmarried daughter who has not attained the age of twenty-four years, including such son and daughter adopted legally before retirement [*].

(iv)

dependent mother and father, in the order of that preference, having no independent means or source of economic sustenance, in the case of a 'single' Government servant as declared by him in the Form-3A.”

(Emphasis Supplied)

8.4

However, the present case pertains not merely to a question as to the capacity of a Hindu widow to adopt, but involves issues of entitlement of a child adopted by a Hindu widow, to family pension payable to certain categories of legal heirs of a deceased government servant. It is necessary to refer to the relevant Rules of the Central Civil Services (Pension) Rules, 1972, as amended from time to time.

Rule 3(1)(f) of the CCS (Pension) Rules defines the term ‘family pension’ in the following manner:

“Family pension means ‘Family Pension, 1964’, admissible under Rule 54 but does not include dearness relief.”

Rule 54 deals, inter alia, with the amount of family pension payable, and the procedure to be followed for payment thereof. Rule 54(14)(b) which is relevant to the present case, defines ‘family’ for the purpose of Rule 54, in the following terms:

“(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;

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;

ii.

Unmarried son who has not attained the age of twenty-five years and unmarried or widowed or divorced daughter, including such son and daughter adopted legally”;

iii.

Dependent parents;

iv.

Dependent disabled siblings (i.e.,brother or sister) of a government servant.”

With that primer, we shall proceed to consider the question as to the entitlement of a child adopted by a Hindu widow, to family pension payable under Rule 54 of the CCS (Pension) Rules.”

9.2.

Further, in Sitabai vs. Ramchandra, A.I.R. 1970 SC 343, this Court took note of the consequences of adoption as listed under Section 12 of the Act, and observed as follows as to the as to the effects of adoption by a Hindu widow:

“5.

[…] It is clear on a reading of the main part of Section 12 and Sub-section (vi) of Section 11 that the effect of adoption under the Act is that it brings about severance of all ties of the child given in adoption in the family of his or her birth. The child altogether ceases to have any ties with the family of his birth. Correspondingly, these very ties are automatically replaced by those created by the adoption in the adoptive family. The legal effect of giving the child in adoption must therefore be to transfer the child from the family of its birth to the family of its adoption.

The scheme of Sections 11 and 12, therefore, is that in the case of adoption by a widow the adopted child becomes absorbed in the adoptive family to which the widow belonged. In other words the child adopted is tied with the relationship of sonship with the deceased husband of the widow.”

11.

This matter calls for an interpretation of the phrase “in relation to a government servant” as appearing in Rule 54 (14) (b) of the CCS (Pension) Rules.

In order to engage with this prong of the matter, i.e., effect of the phrase “in relation to a government servant” as appearing in Rule 54 (14)(b) of the CCS (Pension) Rules, in determining the Appellant’s entitlement to family pension, it may be useful to refer to the decision of this Court in Doypack Systems Pvt. Ltd. vs. Union of India, (1988) 2 SCC 299 on the interpretation of the phrase “in relation to”:

In the said case, this Court held as follows, while interpreting the phrase “in relation to” in the context of the Swadeshi Cotton Mills Company Limited (Acquisition and Transfer of Undertakings) Act, 1986:

“50.

The expression "in relation to" (so also "pertaining to"), is very broad expression which pre-supposes another subject matter. These are words of comprehensiveness which might have both a direct significance as well as an indirect significance depending on the context…In this connection reference may be made to 76 Corpus Juris Secundum at pages 620 and 621 where it is stated that the term "relate" is also defined as meaning to bring into association or connection with. It has been clearly mentioned that "relating to" has been held to be equivalent to or synonymous with as to "concerning with" and "pertaining to". The expression "pertaining to" is an expression of expansion and not of contraction.”

[Emphasis by me]

11.1.

The use of the phrase “in relation to” in statutes is with a view to bring one person or thing into association or connection with another person or thing. The direct or indirect nature of such association or connection depends on the context. In Rule 54(14)(b) of the CCS (Pension) Rules, the phrase “in relation to a government servant” would indicate that the categories of persons listed thereunder, such as wife, husband, judicially separated wife or husband, son or unmarried daughter who has not attained the age of twenty-five years, adopted son or daughter, etc. are sought to be brought into association with the deceased government servant. The context requires that association or connection of such persons with the government servant must be direct and not remote. The said Rule requires that the family member must have a close nexus with the deceased government servant, and must have been dependent on him during his lifetime. Therefore, a son or daughter adopted by the widow of a deceased government servant, after the death of the government servant, could not be included within the definition of ‘family’ under Rule 54(14)(b) of the CCS (Pension) Rules.

(Emphasis Supplied)

13.

Further, we are unable to find favour with the argument of the learned Counsel for the Appellant that since the bar contained in Rule 54(14)(b) of the CCS (Pension) Rules against children born or adopted after retirement, seeking family pension, was removed by way of the subsequent amendments to the provision, children adopted at any time after retirement of the government servant, including children adopted by the widow of the government servant after his death ought to be included under the definition of ‘family’ for the purpose of granting family pension. The provision could not be as expansive as suggested by the learned Counsel for the Appellant. It is necessary that the scope of the benefit of family pension be restricted only to sons or daughters legally adopted by the government servant, during his/her lifetime. The definition of ‘family’ is narrowly worded under the CCS (Pension) Rules, in the specific context of the entitlement to ‘family pension’ and in relation to the government servant. Therefore, the word “adoption” in Rule 54(14)(b)(ii) of the CCS (Pension) Rules, in the context of grant of family pension, must be restricted to an adoption made by a government servant during his/her lifetime and must not be extended to a case of adoption made by a surviving spouse of the government servant after his/her death. This is because the object of the provision is to lend succour to a son till he attains the age of twenty-five years and unmarried or widowed or divorced daughter; similarly to the adopted son or unmarried adopted daughter when such an adoption had been made by the government servant during his/her lifetime.

(Emphasis Supplied)

15.

It is also observed that the decision of this Court in Vijayalakshmamma would not aid the case of the Appellant. The said case is inapplicable to the facts of the present case for the reason that the said case pertains to the right of a widow to adopt and the right of inheritance of a child so adopted. The present case is concerned only with the definition of ‘family’ under the CCS (Pension) Rules. The said definition is a restrictive and specific one and cannot be expanded to take within its sweep, all heirs, as provided under Hindu law, or other personal laws. It is trite that in construing a word in a statute, caution has to be exercised in adopting a meaning ascribed to that word or concept in another statute.”

CONCLUSION:-