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Judgment
Per Hon’ble Mr. M.S. Latif, Member(Judl.):-
The instant Writ Petition initially came to be filed before the Hon’ble High Court of J&K which was numbered as SWP No. 1598/2014. The relief claimed in the Writ Petition is that the Court may be pleased to issue a Writ or Direction in the nature of mandamus commanding upon the respondents to grant the family pension in favour of the petitioner as the petitioner is disabled or incapacitated from earning her livelihood. Alongside the main Writ Petition, Writ Petitioner had also filed a CMP bearing No. 2524/2014. The matter came up for consideration before the Hon’ble High Court on 24.07.2014. Notices were issued to the other side returnable within four weeks. At the same time the CMP of the petitioner was disposed of with the direction upon the respondents that they shall process the case of the petitioner for grant of family pension in accordance with the rules, pendency of writ petition notwithstanding.
Perusal of the orders on file reveals that the Hon’ble High Court from time to time had directed the respondent to process the case of the petitioner for grant of family pension in accordance with rules. The Writ Petition vide order dated 18.09.2020 came to be transferred to this Court. Perusal of the orders passed by this Court reveals that vide order dated 28.08.2023 six weeks last and final opportunity was sought by the respondents to file their reply.
Reply stands filed by the respondents on 17.10.2023. The case of the petitioner as urged in the petition is that the father of the petitioner was working in the respondents’ department who retired from active service as a Field Man and whose pension was fixed in accordance with the rules. It is next averred in the petition that the father of the petitioner namely Mohd. Yousuf passed away in February 2013 and the deceased was survived by the daughter and two sons and the mother had already passed away. To this effect, the petitioner has also appended the legal heir certificate which is annexure page 10.
The learned counsel for the petitioner further submits that after the demise of the father of the petitioner the family approached the respondents for closure of the pensionary benefits which the father of the petitioner was receiving and at the same time approached the respondents for fixing of the family pension in favour of the petitioner who is shown to be unmarried daughter. It is also averred in the petition that the petitioner apart from being unmarried daughter of the deceased is also suffering from acute ailments/ life causing disease i.e. Bronchial Asthma with Allergic Rhinitis. It is also submitted that in view of the disability, the petitioner is not in a position to marry and as such it is she to apply for grant of family pension before the respondents. The inaction on the part of the respondents compelled the petitioner to file the instant writ petition.
Learned counsel for the applicant submits that the applicant is entitled to family pension under rule 21 of the J&K Family Pension and Gratuity Rules 1964 vide instruction No. 1 that is notification SRO 54 dated 11.02.1971 and as such the respondents is duty bound to provide source of subsistence by way of family pension of which otherwise the applicant is entitled to.
In the objections the respondents have objected to the grant of the relief on the preliminary plea that none of the fundamental rights of the petitioner have been violated and there is no concealment and suppression of material facts and no cause of action has accrued to the petitioner for preferring the present TA. It is averred in Para A of the reply that one Shri Mohammad Yousuf S/o Ghulam Hassan was appointed as Seed Examiner in the Sericulture Department vide order No. 6091 dated 30.10.1953 and his service book was formulated with the name of M. Mohd. Yousuf S/o Ghulam Hassan Dar. It is next averred that the said one was retired as Field Man from the erstwhile Additional Project Director J&K NSP on 30.04.1995 and accordingly drew pension w.e.f. 01.05.1995 under PPO No. 41247-C. The father of the applicant has reportedly died on 07.02.2013 and to this effect the Death Certificate issued by Srinagar Municipal Corporation vide their No. SMC-16628 dated 22.03.2013. It is also averred that the wife of the Mohd Yousuf also died on 20.04.2009.
It is also averred in the reply that the case of the applicant was forwarded to the Office of Accountant General vide communication No. PNR-IV/S-1 2015-16/514-15, dated 01.12.2015 who returned the pension case with some observations and pointed out that the parentage of the deceased employee has been shown as Ghulam Hassan Dar at the retirement while his parentage has been mentioned as Ghulam Hassan Bhat by the revenue Authorities in the Dependent Certificate which according to them does not match with the previous pension case. As such, there is no contravention in the record pertaining to the parentage of the deceased employee. It is also averred that the department through Additional Director Sericulture, Kashmir took up the matter with the Deputy Commissioner, Srinagar through a chain of communications and the latest communication in this regard is letter No. ADSDK/Legal/2023-24/3449-50 dated 09.09.2023 and the respondents as such gave plenty of time to the petitioner to clarify this issue through the concern Revenue Department. But she failed to do so.
Perusal of the reply filed by the respondents reveals that it is only with regard to the some clarification about the parentage of the deceased that the family pension case of the petitioner has not been sanctioned.
Learned counsel for the petitioner submits that he has filed an M.A. No. 400/2024 wherein the applicant seeks to place on record the communication from Tehsildar Eidgah to Deputy Commissioner, Srinagar with the subject granted grant of family pension to the next kin of Mr. Mohammad Yousuf deceased employee of this office. The communication reads as under.
“Apropos to the subject and reference, it is to submit that the case got thoroughly verified by the field agency and submitted their report, which reveals that Mr. Mohd. Yousuf became an orphan at a very young age. His maternal uncle namely Gh. Hassan Dar took responsibility of his upbringing out of sheer love for his nephew. Later, Mr. Mohd. Yousuf got employed in the department of sericulture, where his parentage was entered as Gh. Hassan Dar. However, it is to point out that the biological father of Mr. Mohd. Yousuf is Gh. Mohd Bhat and he has been raised by his maternal uncle namely Gh. Hassan Dar out of his sheer love and affection for his nephew. Hence the report.”
Perusal of the communication dated 20.12.2023 reveals that the father of the applicant. Mr. Mohd. Yousuf was employed in the department of Sericulture where his parentage was noted as Ghulam Hassan Dar and it is also mentioned in the communication that the biological father of Mr. Mohd. Yousuf , the father of the applicant is Ghulam Mohd. Bhat. But in view of the fact that the father of the petitioner has been raised by his maternal uncle namely Ghulam Hassan Dar after his sheer love and affection for his nephew, he has retained his parentage as Ghulam Hassan Dar in the record. The instant petition has been pending from the year 2014 and it has now been more than 10 years.
Heard the learned counsel for the parties.
The instant Writ Petition/Transfer Application is accordingly disposed of with the direction upon the respondents to consider the case of the petitioner for release of her family pension in view of the communication addressed by Tehsildar Eidgah, Srinagar to Deputy Commissioner, Srinagar bearing No. 1299/MM/Teh-23 dated 20.12.2023 in accordance with the entitlement of the petitioner as reflected in the service records. It is directed that the respondents will accord due consideration within a period of four weeks positively and on doing so, will release all the arrears in favour of the petitioner subject to her fulfilling all other legal requirements and also continue to pay her in future. Respondents are further directed to keep registry of this Tribual aware of the compliance of this Judgement. Registry to follow up.
With this T.A. No. 3022/2021 is disposed of. No order as to costs.