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NAMIT KUMAR, J. (ORAL) –

1. The petitioner has filed the instant petition under Articles 226/227 of the Constitution of India, seeking issuance of a writ of certiorari for quashing the memo dated 25.05.2022 (Annexure P-13), whereby the prayer of the petitioner for granting her full family pension in respect of services rendered by her deceased-husband has been denied and the petitioner has been held entitled for only 50% family pension and for quashing the letter dated 24.10.2006 (Annexure P-14), being relied by the respondents in the impugned memo to deny full family pension to the petitioner. Further, seeking issuance of a writ of mandamus directing the respondents to grant the petitioner full (100%) family pension, with all arrears from the date of death of her husband with interest @ 18% per annum.

2. Briefly stated the facts of the case, as have been pleaded in the petition, are that the husband of the petitioner, namely Sh. Parshotam Lal Puri, retired from service on attaining the age of superannuation on 31.10.1996 as District Treasury Officer, Gurdaspur. His first wife namely Smt. Usha Rani, died on 06.11.1980 (Death Certificate of Usha Rani annexed as Annexure P-2). Thereafter, he remarried with the petitioner on 30.05.1992 and the marriage was duly registered with the Registrar of Marriage, Amritsar (Marriage Certificate annexed as Annexure P-3). The husband of the petitioner was drawing pension from the Punjab Government w.e.f. 01.11.1996 till the date of his death i.e. 14.11.2011 (Death Certificate annexed as Annexure P-1). After the death of husband of the petitioner, the Legal Heir Certificate dated 22.02.2012 (Annexure P-4) was issued by the Deputy Commissioner, Amritsar, which clearly shows that none of the legal heirs is eligible to receive family pension as per rules except the petitioner, being the surviving spouse/widow of late Sh. Parshotam Lal Puri. Despite this, the family pension case of the petitioner was delayed without any justification and finally, the Accountant General (A&E), Punjab, Chandigarh issued Pension Payment Order on 03.08.2015 (Annexure P-5), whereby the total family pension amounting to Rs.3,396/- was sanctioned. However, the petitioner was held entitled to only Rs.1,698/- by observing ‘being second wife of retiree’. Thereafter, the petitioner immediately requested the respondent-department for release of full family pension on the ground that the first wife of late Sh. Parsotam Lal Puri had already died on 06.11.1980 and the petitioner solemnized marriage with Sh. Parshotam Lal Puri only after her death. Out of the said wedlock, two children were born who were living with the petitioner. Hence, she is entitled to full family pension. Subsequently, the petitioner made various representations to the respondent-department for releasing the full family pension but to no effect. Finally, the case of the petitioner was forwarded by the office of respondent No.2 for release of full 100% family pension to the petitioner. However, the Accountant General (A&E), Punjab, Chandigarh, vide impugned letter dated 25.05.2022 (Annexure P-13) has refused to grant full family pension to the petitioner and held her entitled for only 50% family pension by relying upon Note 1 and Note 2 below Rule 6.17(4) of the ‘Punjab Civil Services Rules, Volume II’ and clarification issued by the Department of Finance, vide letter dated 24.10.2006 (Annexure P-14). Hence, the instant petition.

3. Learned Senior counsel for the petitioner submits that respondent No.4 has wrongly and illegally denied full family pension to the petitioner by relying upon Note 1 and 2 below Rule 6.17(4) of the Punjab Civil Services Rules, Volume II, which are not applicable in the case of the petitioner as the first wife of late Sh. Parshotam Lal Puri, namely late Smt. Usha Rani, died on 06.11.1980 and he solemnized marriage with the petitioner on 30.05.1992 after the death of his first wife which was duly registered with the Registrar of Marriage, Amritsar. He further submits that as per Legal Heir Certificate dated 22.02.2012 (Annexure P-4), issued by the Deputy Commissioner, Amritsar, on the date of death of Sh. Parshotam Lal Puri on 14.11.2011, there was no eligible minor child available from his first wife. He further submits that once the earlier wife of the husband of the petitioner had died much before the death of husband of the petitioner and no other eligible legal heir from the earlier wife of the husband of the petitioner was available, then the pension which could have been otherwise available to other widow could not cease under Note 1 and the petitioner is entitled for full family pension with all consequential benefits being the sole surviving widow of late Sh. Parshotam Lal Puri. In support of his contentions, learned Senior counsel relies upon the judgment passed by the Division Bench of this Court in LPA No.1434 of 2014 titled as ‘State of Punjab and others Vs. Harpal Kaur’ decided on 01.09.2014.

4. Per contra, learned State counsel assisted by learned counsel for respondent No.4, while referring to the averments made in the reply filed on behalf of the respondents No.1 to 3, submits that in view of Notes appended with Rule 6.17(4) of the Punjab Civil Services Rules, Volume II, the petitioner was not entitled for full family pension. He further submits that since there was no eligible legal heir available from the first wife who died earlier, therefore, as per Note 1, the share of the earlier wife will cease. He further submits that there is no illegality and infirmity in the impugned memo dated 25.05.2022, issued by respondent No.4, and the petitioner is entitled for 50% of family pension only.

5. I have heard learned counsel for the parties and perused the relevant documents.

6. The facts are not in dispute that the husband of the petitioner retired from service on attaining the age of superannuation on 31.10.1996 as District Treasury Officer, Gurdaspur. His first wife died on 06.11.1980 and after her death, he solemnized marriage with the petitioner on 30.05.1992. The husband of the petitioner unfortunately expired on 14.11.2011. After his death, the Accountant General (A&E), Punjab, Chandigarh issued Pension Payment Order on 03.08.2015 (Annexure P-5), whereby the petitioner was held entitled for only 50% family pension by observing ‘being second wife of retiree’. Thereafter, the petitioner made several representations to the respondent-department for releasing the full family pension to her but to no effect. Finally, the Accountant General (A&E), Punjab, Chandigarh, vide impugned letter dated 25.05.2022 (Annexure P-13) has refused to grant full family pension to the petitioner and held her entitled for only 50% family pension by relying upon Note 1 and Note 2 below Rule 6.17(4) of the Punjab Civil Services Rules, Volume II and clarification issued by the Department of Finance, vide letter dated 24.10.2006.

7. The grievance of the petitioner is that she is, being the only surviving widow of late Sh. Parshotam Lal Puri, entitled for full family pension but the respondents are denying the same keeping in view Note 1 and Note 2 below Rule 6.17(4) of the Punjab Civil Services Rules Volume II, she is being paid only 50% of the family pension instead of 100%.

8. Note 1 and Note 2 below Rule 6.17(4) of the Punjab Civil Services Rules, Volume II are read as under :-

“Note 1 - When a Government employee is survived by more than one widow, the pension will be paid to them in equal shares. On the death of a widow, her share of the pension will become payable to her eligible minor child, if at the time of her death, a widow leaves no eligible minor child, the payment of her share of the pension will cease.

Note 2 – Where a Government employee is survived by a widow but has left behind an eligible minor child from another wife, the eligible minor child will be paid the share of pension which the mother would have received if she had been alive at the time of the death of the Government employee.”

9. In the present case, Sh. Parshotam Lal Puri, at the time of his death i.e. on 14.11.2011 was survived by only one widow who is the present petitioner as his first wife had already died on 06.11.1980, whereas the opening lines of Note 1 would show that it will apply only when a Government employee is survived by more than one widow. Note 1 further provides that on the death of a widow, her share of the pension will be payable to her eligible minor child, whereas in the present case, there was no minor child available from the first wife. This fact is also corroborated from the Legal Heir Certificate dated 22.02.2012 (Annexure P-4), issued by the Deputy Commissioner, Amritsar. Note 1 further provides that if at the time of death of the widow, there is no eligible minor child, then the payment of her share of the pension will cease. This issue has already been decided by a Division Bench of this Court in Harpal Kaur’s case (supra), wherein it has been held that the Government cannot retain the share of family pension under Note 1 and Note 2 below Rule 6.17 (4) of the Punjab Civil Services Rules. The relevant portion of the said judgment reads as under:-

“In this case, Jit Singh was an employee of the Punjab Government. He died in harness on February 15, 2004, leaving behind one son from his pre-deceased wife and one son born to respondent Harpal Kaur (the second wife). In accordance with the provisions of Rule 6.17 of the Punjab Civil Service Rules Volume II (hereinafter referred to as `the Rules'), the respondent and son of pre-deceased wife of the deceased employee were granted family pension in equal share. The son of pre-deceased wife of the deceased employee attained the age of 25 years on October 28, 2005 and as per the instructions dated March 07, 2005 (Annexure P-3) issued by the appellants, payment of half share of the family pension was stopped to him with effect from October 29, 2005. At that stage, the respondent moved an application (Annexure P-5) to the Accountant General, Punjab (appellant No.4 herein) for grant of full family pension, in view of Note 1 and 2 of Rule 6.17 of the Rules, which read as under :

“Note 1 – When a government employee is survived by more than one widow the pension will be paid to them in equal shares. On the death of the widow her share of the pension will become payable to her eligible minor child. If at the time of death widow leaves no eligible minor child, the payment of her pension shall cease.

Note 2 – When a government employee is survived by a widow but has left behind eligible minor child from another wife, the eligible minor child will be paid the share of the pension which the mother would have received if she had been alive at the time of the death of the government employee.”

The claim of the respondent was rejected by the appellants on the ground that after attaining the age of 25 years, the right of son of the pre-deceased wife of the deceased employee to draw 50% of the family pension ceased and the said share could not have been granted to the respondent. This interpretation was given by the appellants in view of Note 1 and 2, as quoted above.

The contention of the appellants is without any substance and the same cannot be accepted, as earlier in the similar circumstances, exactly the similar Rule was interpreted by a Division Bench of this Court in the case of Ram Dulari versus State of Haryana and others (CWP No. 3359 of 2008, decided on July 03, 2009). Copy of the judgment rendered in the said case was annexed with the writ petition as Annexure P-1. In that case, it was held that widow of the deceased employee, in absence of any eligible heir from her and from the first wife of the deceased employee, is entitled to get full family pension. The observations of the Division Bench read as under :

“11. The argument of the respondents is wholly misconceived when they argued that according to Note (i) of sub-clause (iii) of clause 4 of the ‘Pension Scheme’ once the minor children have stopped getting their share on account of attaining majority then the 50% share would cease. A perusal of Note (i) would show that the aforesaid provision is applicable only in a case where an employee is survived by more than one widow. In the present case there was only one widow on the date of death of Shri Mehar Singh. It has come on record that Shri Mehar Singh died on 27.8.1980 and his earlier wife Smt. Sona Devi had predeceased him in the year 1976 leaving behind three children, namely, Raj Singh, Manju Rani and Braham Singh, who were born on 5.1.1972, 20.3.1974 and 13.5.1974 respectively. Then he married the petitioner. It is further appropriate to mention that the petitioner also had a minor child, namely, Megh Raj, who was born on 8.12.1980. Therefore, Note (i) would have no application in the absence of at least two widows. The present is a case of one widow who had a minor child of her own and three minor children of her husband, born out of his wedlock with Smt. Sona Devi, who had predeceased him. The respondents have totally misdirected themselves in applying Note (i) to the case of the petitioner whereas the matter is covered by Note (ii) of sub-clause (iii) of clause 4 of the ‘Pension Scheme’, which does not contemplate ceasing of pension. Therefore, there is no substance in the argument of the respondents and the same is rejected.

12. For the reasons aforementioned, this petition succeeds. Order dated 17.7.2007 (P-7) passed by the Director General of Police respondent No. 2 is set aside. The respondents are directed to release 50% share of the family pension to the petitioner, which was being paid to the minor children of deceased wife of Shri Mehar Singh, namely, Smt. Sona Devi, to the petitioner. It is clarified that the petitioner would now be entitled to 100% pension. The petitioner shall also be entitled to all the arrears with effect from May 2001 till date along with interest at the rate of nine percent per annum.”

Learned counsel for the appellants argued that even after the said judgment, in the State of Punjab, there is dichotomy about the interpretation of the aforesaid provisions. But we do not find any dichotomy in Punjab also, because the Punjab Civil Service Rules are exactly the same, and the situation as well as the facts and circumstances in Ram Dulari's case (supra) were also exactly the same. The reason is obvious. On the date of death of the deceased employee, his eligible dependents are to be identified, to whom the family pension is to be granted. If from the pre-deceased wife, children are there, they are eligible legal heirs and are entitled to get family pension till they attain the age of 25 years. In the instant case, son of the pre-deceased wife of the deceased employee being eligible legal heir was entitled to have family pension upto the date of his attaining the age of 25 years and thereafter, his share was to be restored or to be given to the remaining legal heirs of the deceased employee. In this case, widow of the deceased employee and her son survive and both of them are entitled to have family pension in equal shares. In any case, the State is liable to pay 100% family pension, which can be shared by any number of legal heirs of the deceased employee, but the State cannot retain the share of one legal heir on the ground that he has attained the age of 25 years and his right to have family pension has ceased. The family pension is an estate of the legal heirs of the deceased employee. The apportionment of the family pension of a deceased employee is not the business of the State. Right in the family pension will devolve according to the Hindu Succession Act, 1956. Thus, we do not find any illegality in the impugned order passed by the learned Single Judge.

No merit. Dismissed.”

10. In view of the above, Note 1 is not applicable in the facts and circumstances of the present case and the present petitioner who is the sole surviving widow is entitled for the grant of full family pension.

11. So far as applicability of Note 2 is concerned, in the present case, there was no eligible minor child from earlier wife of the deceased husband of the petitioner to whom the share of pension is to be paid and therefore, even Note 2 will not apply in the present case.

12. The rule for apportionment applies when there are multiple eligible claimants at the same time. In the present case, due to nonavailability of any minor child from the first wife, who had already died before the marriage of the petitioner, the petitioner is the only eligible claimant. As such, if the interpretation given by the respondents is accepted, it would lead to absurd and unjust consequence of the State misappropriating a part of the family pension meant for the deceased’s family, which is contrary to the spirit and purpose of the Family Pension Scheme.

13. Consequently, the present petition is allowed. The impugned memo dated 25.05.2022 (Annexure P-13) is hereby set aside and the petitioner is held entitled for the grant of full family pension. The respondents are directed to grant the petitioner 100% family pension w.e.f. the date of death of her husband i.e. 14.11.2011 along with arrears with interest @ 6% per annum within a period of three months from the date of receipt of certified copy of this Court.

Petition allowed.

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