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JAGMOHAN BANSAL, J. (ORAL) –

1. The petitioner through instant petition under Articles 226/227 of the Constitution of India is seeking direction to respondents to release family pension to the petitioner.

2. On 05.08.1993, the husband of the petitioner was appointed as SPO by Punjab Police and later on was absorbed by the department. His services were regularized in 1995. On 07.02.2000, the husband of the petitioner passed away. The respondent-department granted family pension to the petitioner. The petitioner solemnized Kareva marriage with his brother-in-law (Devar) on 17.02.2002 and started staying with all other family members which included children from her earlier wedlock. On the request of the petitioner, the family pension was transferred in the name of son of the petitioner. The man with whom the petitioner solemnized second marriage also passed away on 02.10.2007 and petitioner requested the respondent-department to restore her family pension. The respondent-department denied family pension to the petitioner because she got re-married and stopped of her son because he got job.

3. A Division Bench of this Court in Smt. Balwant Kaur and Another v. State of Punjab and Another, decided on 23.04.2008 as well as Single Bench of this Court in Amrit Kaur @ Paramjit Kaur v. State of Punjab and Others, 2014 (2) PLR 192 interpreting the rule in question has extended benefit of family pension to widow of a deceased employee though said lady solemnized marriage with his brother-in-law. The relevant extracts of the judgment in Amrit Kaur (supra) read as:

“3. Counsel for the petitioner has relied upon a Division Bench decision of this Court in Smt Balwant Kaur v. State of Punjab, decided on 23.4.2008, wherein it was held as follows:—

“The short question that arises in this petition is whether the family pension of a widow, who has contracted a second marriage with the younger brother of her deceased husband, can be stopped and whether the recovery of the family pension, which has already been paid, can be effected from her. In this regard it would be relevant to reproduce rule 8.35 of the Punjab Civil Service Rules Vol. 2, Chapter VIII, which is as under:—

‘8.35 (1) A family pension will take effect, from the day following the death of the Government employee or from such other date as the competent authority may decide.

(2) A family pension will ordinarily be tenable-

(a)(i) in the case of widow or mother until death or remarriage whichever occurs earlier.

(ii) in the case of a minor son, or minor brother, until he attains the age of 18;

(iii) in the case of an unmarried daughter or minor sister, until marriage or until she attains the age of 21, whichever occurs earlier.

(iv) in the case of a father, for life.

(b) Notwithstanding anything contained in sub-clause—

(a) a widow who re-marries her deceased husband's brother and continues to life a communal life with or contributes to the support of other dependents of her deceased husband shall not be disqualified for the grant of extraordinary pension otherwise admissible to her under these rules.

Note 1.—A family pension granted to a posthumous child should commence from the date of his/her birth and not from the date of death of his/her father.

Note 2.—The family pension of a widow will cease on remarriage but when such re-marriage is annulled by divorce, desertion or death of the second husband her pension may be restored upon proof that she is in necessitious circumstances and otherwise deserving.’

Clause 2(b) of rule 8.35 Punjab Civil Service Rules Vol. 2, Chapter VIII clearly stipulates that a widow, who has remarried her deceased husband's brother and continues to live a communal life and contributes to the support of other dependents of her deceased husband, shall not be disqualified for the grant of extraordinary pension, otherwise admissible to her under Civil Service Rules.

In the instant case, a perusal of Annexure R-2 written by the petitioner to the Administrative Officer, Punjab Mandi Board dated 25.07.2001 clearly shows that she has solemnized her marriage with the younger brother of her deceased husband. The petitioner is also supporting four children born out of her wedlock with her deceased husband. Although, the petitioner has averred in this writ petition that she has not contracted a marriage with the brother of her deceased husband and has only entered into an arrangement and continues to live a communal life with the family of her deceased husband, but this averment seems to be an afterthought in order to protect her family pension. The remarriage of a widow with the younger brother of her deceased husband entitles her for the grant of family pension in terms of rule 8.35(2)(b) of the Punjab Civil Service Rules Vol. 2, Chapter VIII and hence, the order dated 04.01.2007 passed by the General Manager (Accounts) (Annexure P-1) holding that petitioner is not entitled to family pension and further ordering recovery from the petitioner for the amount already paid to her as family pension, cannot be sustained.

Resultantly we quash Annexure P-1 and hold that the petitioner is entitled to family pension. We further hold that the respondents are not entitled to recover the family pension already paid to the petitioner.”

(4) Counsel for the respondents states that she does not dispute the proposition of law as laid down in Balwant kaur's case (supra), but the petitioner had specifically given up her claim for family pension. In my opinion, what the petitioner requested was for transfer of family pension in favour of her minor children and now the children are no more entitled for family pension, since the family pension is otherwise payable to the petitioner, her prayer for transfer of family pension in favour of her children cannot be treated as a waiver of her right of claiming family pension for all times to come, more-so when it is a beneficial provision. Resultantly, this writ petition is allowed and the respondents are directed to release the family pension to the petitioner with effect from the date her children were disentitled for the same. Necessary disbursal be made within three months from the receipt of a certified copy of this order failing which the petitioner would be entitled to claim the same with interest @ 8% pa from the date/s the amount/s fell down.”

4. On being confronted with afore-cited judgments, learned State counsel asserts that competent authority would reconsider case of the petitioner in terms of the judgments.

5. In the wake of statement of learned State counsel and the afore-cited judgments, the present petition stands disposed of with a direction to the respondent-authorities to reconsider claim of the petitioner and pass an appropriate order within three months from today.

Order accordingly.

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