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ORISSA HIGH COURT: CUTTACK
W.P.C. (C) NO. 8541 OF 2019
In the matter of an application under Article 226 of the
Constitution of India.
—————
AFR Sujata Mohanty ….. Petitioner
-Versus-
Berhampur University
and others ….. Opp. Parties
For Petitioner : M/s. M.S. Sahoo, P.K. Kuanr
C.R. Swain, Advocates
For Opp. Parties : M/s. B.S. Mishra-2 A.R.
Mishra, Advocates
(O.Ps. no.1-3)
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 09.07.2021 :: Date of judgment : 14.07.2021
DR. B.R. SARANGI, J. The petitioner, by means of this
writ petition, seeks to quash the communication dated
11.03.2019 at Annexure-7, whereby the Comptroller of
Finance, Berhampur University has rejected the claim
// 2 //
of the petitioner for family pension, and to issue
direction to the opposite parties to sanction and
disburse family pension in her favour within a
stipulated period.
2. The factual matrix of the case, in brief, is
that the petitioner is the daughter of late Sarada Prasad
Mohanty, who was working as Professor in the
department of Physics under Berhampur University
and retired from service on 31.07.1999 on attaining the
age of superannuation. Though the petitioner was
married, her marriage was dissolved by a decree of
divorce under Section 13(B) of Hindu Marriage Act on
12.05.1995 by the Court of learned Civil Judge (Sr.
Division), Bhubaneswar in T.S. No.236 of 1998. As a
consequence thereof, she stayed with her parents and
was fully dependent on them. While she was so
continuing, her mother, Renuka Mohanty and wife of
late Sarada Prasad Mohanty expired on 28.08.2010.
Accordingly, her father submitted an application for
change of nomination in favour of the petitioner for
// 3 //
acceptance as nominee to receive family pension,
whenever it would have become due and such proposal
was considered and duly accepted by the authority vide
Annexure-2 dated 01.07.2015. Consequentially,
opposite party no.1 communicated the same to the
Comptroller of Finance, Berhampur University stating
that pursuant to Pension Amendment, 2011 by the
Government of Odisha O.M. No.32745/F dated
23.07.2011, the Vice-Chancellor allowed the petitioner,
the divorced daughter of late Sarada Prasad Mohanty,
to be the next recipient of family pension as nominated
by him.
2.1. Prof. Sarada Prasad Mohanty expired on
06.06.2018 leaving behind two major sons and two
married daughters besides the petitioner, as per the
legal heir certificate dated 28.12.2018 in Annexure-4
granted by the competent authority, namely, Revenue
Officer in Miscellaneous Certificate Case No.e-LHC/44
of 2018 in prescribed Form-II under Rule-3 only for the
purpose of family pension. Due to death of the
// 4 //
pensioner, the family pension became payable to his
family i.e. the petitioner, as she was nominated to be
the next recipient pursuant to Annexure-2 dated
01.07.2015. Consequentially, the petitioner approached
the authorities by filing representations annexing all
the relevant documents, as required, including the
income certificate dated 06.12.2018 issued by the
Revenue Officer, legal heir certificate dated 28.12.2018
and the affidavit dated 18.01.2019 indicating “no
objection” executed by all her brothers and sisters to
sanction and disburse family pension in her favour.
Pursuant to letter in Annexure-2 dated 01.07.2015, in
spite of repeated approaches, when the authorities did
not consider her grievance, she approached the Vice-
Chancellor-opposite party no.2 by filing a
representation on 04.02.2019. Pursuant thereto,
opposite party no.3 communicated, vide letter dated
11.03.2019 under Annexure-7, to the petitioner that
her claim for family pension, as divorced daughter of
Late Sarada Prasad Mohanty, Retd. Professor of the
// 5 //
University and consequent pensioner cannot be
considered as per the provisions of OCS (Pension)
Rules, 1992 and further amended vide notification
No.32745/F dated 23.07.2011 of Finance Department,
Govt. of Odisha in rule-2, sub-rule (1) in clause (b)iii, as
she has income for livelihood as per the copy of income
certificate provided by her. Hence this application.
3. Mr. C.R. Swain, learned counsel for the
petitioner argued with vehemence that the reasons
assigned for rejection of the claim of the petitioner for
grant of family pension pursuant to Annexure-7 dated
11.03.2019 cannot sustain in the eye of law. It is
contended that the petitioner has produced the income
certificate issued by the competent authority showing
her annual income of Rs.40,000/- from agricultural
land, which is Rs.3,333/-per month. As per Rule 56(5)
(e) of Orissa Civil Services (Pension) Rules, 1992, a
divorced daughter having income less than Rs.4,440/-
per month is eligible to receive family pension. Thereby,
there is non-consideration of the provisions of law.
// 6 //
Consequentially, the order impugned has been passed
without application of mind and the same should be
quashed. It is further contended that when the
Government intends to extend the benefit of family
pension in a specific manner and has fixed the criteria
for the same, which the University has also accepted,
the authorities have no option to change the criteria
either to extend or curtail the benefit as per their sweet
will. It is further contended that pension is a statutory
right and also is a property. By rejecting the prayer of
the petitioner for family pension on erroneous
assumption of law is violative of Article-21 and 300-A of
the Constitution of India. Therefore, the petitioner
seeks for quashing the order impugned dated
11.03.2019 under Annexure-7 issued by opposite party
no.3 and further seeks direction to the opposite parties
to extend the benefit of family pension as due
admissible to her.
4. Mr. B.S. Mishra-2, learned counsel
appearing for Berhampur University, with reference to
// 7 //
counter affidavit filed on behalf of the opposite parties,
contended that whether the petitioner has remarried or
not, nothing has been placed on record. She has also
not disclosed either with regard to her income from any
other sources or as to whether she has any other
employment or not. The income certificate granted by
the Revenue Officer in Annexure-5 dated 06.12.2018
cannot be taken into consideration, as he has given
consolidated annual income of Rs.40,000/- from
agricultural land without application of mind. More so,
whether the petitioner has received any alimony due to
divorce, that has not been specifically indicated. He
further contended that the total extent of immovable
property of her father has also not been disclosed nor
the same has been stated in Annexure-5 so as to entitle
the petitioner to claim family pension. Thereby, he
seeks for dismissal of the writ petition.
5. This Court heard Mr. C.R. Swain, learned
counsel for the petitioner and Mr. B.S. Mishra-2,
learned counsel for opposite parties. Pleadings have
// 8 //
been exchanged between the parties, with their consent
the matter is being disposed of finally at the stage of
admission.
6. For just and proper adjudication of the
case, relevant provisions of OCS (Pension) Rules, 1992
are quoted below:
―Rule-2(1)(b)(iii):- in case of unmarried /
widowed / divorced / disabled widowed /
disabled divorced daughter even after
attaining the age of twenty five years, until
she gets married / re-married or starts
earning her livelihood as provided in rule 56
or till her death whichever is earlier. (Vide
Finance Department Notification No.32745/F.,
dtd.23.07.2011 SRO No 660/2011)xxx xxx xxx
Rule-56(2)(c):-after retirement from service
and was on the date of death in receipt of
pension, or compassionate allowance, referred
to in Chapter IV other than the pension
referred to in rules 43 and 44 the family of the
deceased shall be entitled to family pension,
the amount of which shall be calculated at a
uniform rate of 30% of emoluments in all
cases and shall be subject to minimum of
₹3500/- having no maximum limit w.e.f.
01.01.2006 or as may be notified by the
Government from time to time. (Added vide
Finance Department Notification No.24142/F.,
dtd.04.09.2015).
xxx xxx xxx
Rule-56(5)(d):- 56 (5) (d) – In the case of an
unmarried daughter even after attaining the
age of twenty five years till her marriage or
// 9 //death whichever is earlier subject to the
condition that the monthly income of such
daughter shall not exceed Rupees Four
Thousand Four Hundred and Forty per month
from employment in Government, semi-
Government, Statutory Bodies, Corporation,
Private Sector, Self-employment. Salary /
income certificate shall be obtained from the
employer in case when the incumbent is under
the employment in Government, semi-
Government, Corporation, Private Sector. In
case she is self-employed or is in receipt of
income from known sources other than
employment, statutory authority issuing the
income certificate shall be the competent
authority to issue such certificate after
causing due inquiry and calling for any
records or reference to be satisfied enough to
issue such certificate. (vide Finance
Department Notification No.32745/F.,
dtd.23.07.2011 shall come into force on the
date of their publication in the Orissa Gazette
i.e. w.e.f. 12.08.2011 also vide F.D. O.M. No-
8133/F., dated 20.03.2013).
xxx xxx xxx
Rule-56(5)(e): In the case of widowed /
divorced / disabled widowed / disabled
divorced daughters even after attaining the
age of twenty five years till their remarriage or
death whichever is earlier subject to the
condition that in case of divorced daughters /
disabled divorced daughter, the divorce is
valid in law and the case of widowed /
disabled widowed daughter, the family
pension for life from the date of death of her
husband and there is no 43 other eligible
unmarried daughter beyond the age of twenty
five years and disabled son / disabled
unmarried daughter to receive the family
pension. The benefit of family pension for life
shall be admissible to the widowed / divorced
daughter only after cessation of the claim of
disabled widowed / disabled divorced
daughter. The other conditions governing
// 10 //
grant of family pension to the unmarried
daughters as specified in clause (d) shall also
be applicable in the case of widowed /
disabled widowed / disabled divorced
daughters for grant of family pension in their
favour. (vide Finance Department Notification
No.32745/F., dtd. 23.07.2011).‖
7. In view of aforesaid provisions, a divorced
daughter shall be entitled to get family pension subject
to condition that her monthly income does not exceed
Rs.4,440/- from employment in Government, semi-
Government, statutory bodies, corporation, private
sector, self-employment. Salary/income certificate shall
be obtained from the employer in case the incumbent is
under the employment in Government, semi
Government, Corporation, Private Sector. Therefore, the
income certificate produced by the petitioner, which
has been annexed as Annexure-5 to the writ petition,
indicates that the annual income of the petitioner from
agricultural land is 40,000/-. If the said income is
calculated on monthly basis, it comes to Rs.3,333/- i.e.
below Rs.4,440/- per month as required under clause
(d) of Rule-56(5) of the Rules mentioned supra.
// 11 //
Thereby, the petitioner satisfies the requirement of
getting family pension.
8. Coming to the contention raised that the
petitioner has not stated about her remarriage, the
onus lies on the opposite parties to substantiate such
stand by adducing documentary evidence and in
absence of the same, as the petitioner specifically
claimed that she is the divorced daughter of the
pensioner late Sarada Prasad Mohanty, question of her
remarriage by the time of making application does not
arise. It is further contended that she has not made
other legal representatives as parties to the writ
petition. Such a stand has no leg to stand, as because
the petitioner has filed an affidavit in Annexure-6 dated
18.01.2019, where other legal representatives have
given no objection if the benefit of family pension is
extended to the petitioner and, as such, they may not
be necessary parties to the present proceeding, as they
have no objection to the same. Furthermore, it is
incumbent upon the petitioner whether to make them
// 12 //
parties or not, reason being, since other legal heirs have
executed no objection certificate in her favour, such
fact might have prompted the petitioner not to make
them parties to the writ petition. It is also of relevance
to note that none of the legal representatives has raised
objection in the affidavit filed as Annexure-6 with
regard to receipt of family pension by the petitioner.
Therefore, even if they are not made parties in the writ
petition, they will not affect the petitioner in any
manner. More so, during his lifetime the father of the
petitioner, namely, Late Sarada Prasad Mohanty
nominated the petitioner, his divorced daughter, to be
the next recipient of family pension. Consequently,
other legal heirs may not have any claim, as the family
pension has to be granted only in favour of the
petitioner, as a result they may not be necessary
parties to the proceedings.
9. As regards the claim made, that the State
Government has not been made a party, it can be safely
stated that in the instant case relief has been sought
// 13 //
against opposite parties no.1 to 3 and, therefore, the
State Government has no role to play. As such, no fault
can be found with the petitioner for non-impleation of
the State Government as a party to this writ petition. In
the counter affidavit, the opposite parties have taken a
stand that the petitioner has not shown income from
any other sources, such a stand also cannot be
considered at this stage, because the income certificate,
which has been produced under Annexure-5 has been
issued by the competent authority providing the annual
income of the petitioner which should be accepted.
10. Some of the relevant provisions of the
Odisha Miscellaneous Certificates Rules, 2017, which
was framed by the Revenue Disaster Management
Department vide resolution dated 31st March, 2017, are
extracted hereunder:-
―2. Definitions:–In these rules, unless the
context otherwise requires–
(a) “Certificate” means a miscellaneous
certificate specified in rule 3; and
xxx xxx
xxx
// 14 //
3. Categories of miscellaneous
certificates:– (1) Subject to the provisions
hereinafter contained, a Revenue Officer shall
be Competent to grant following categories of
miscellaneous certificates, namely:–
i) xxx xxx
xxx
(ii) Legal heir certificate (Form No. II)
(iii) Income certificate (Form No. III)
xxx xxx
xxx
Note: (a) xxx xxx
xxx
(b) Legal heir certificate shall be granted for
–
(i) drawal of pension, gratuity, arrear
salaries, provident fund;
(ii) receipt of Government assistance, ex
gratia payment;
(iii) withdrawal of money from financial
institutions and post offices where the amount
involved does not exceed one lakh rupees;
and
(iv) transfer of name in case of basic
amenities like electricity connection, water
connection, etc.:
Provided that in disputed cases the
applicants may be advised to approach the
Civil Court for issue of succession certificate.
Provided further that the succession
certificates, which are governed under the
provisions of the Indian Succession Act, 1925
shall not be granted by the Revenue Officers.
(c) In case of income certificate,–
(i) where income is accruable from
immovable property, the income certificate
shall be granted by the Revenue Officer within
whose jurisdiction such property situates;
(ii) where the income is accruable from
movable property or from profession, trade or
business or calling, occupation, the income
certificate shall be granted either on the basis
of income tax return or other documents, if
any, to the satisfaction of the Revenue Officer
// 15 //
by making such inquiry as he deems proper;
and
(iii) where income is accruable to a
person byway of salary, wages or
remuneration in whatever form from
Government service / Public Sector
Undertaking/ Local Authority or Private
company or the like, the income certificate
shall be granted , if such person produces the
certificate issued by the employer;
(d) While issuing solvency certificate
immovable properties situated within the
operational jurisdiction of the Revenue Officer
concerned shall only be taken into account
after careful verification.‖
11. In view of the aforesaid provisions, after
the death of the father of the petitioner, she produced
legal heir certificate vide Annexure-4 dated 28.12.2018
and such certificate is granted for the purpose of
drawal of pension, gratuity, arrear salary, provident
fund, etc.. Similarly, Annexure-5 dated 06.12.20218 is
the income certificate issued by the competent
authority where the income is accruable from
immovable property and movable property. These
certificates are to be granted by the Revenue Officer
within whose jurisdiction such property is situated.
Thereby, keeping in view the aforesaid provisions, if the
// 16 //
income certificate has been granted by the competent
authority, there is no reason to disbelieve the same.
More so, since income of the petitioner is less than the
income, which has been prescribed under the rules,
she is eligible to receive such benefits as due and
admissible to her in accordance with law.
12. Admittedly, the petitioner‟s father was a
pensioner after being superannuated from service as
Professor in Physics from the Berhampur University. So
far as meaning of pension is concerned, it has been
decided in catena of judgments of the apex Court.
Some of the relevant judgments are referred to
hereunder for just and proper adjudication of the case
itself.
13. In D.S. Nakara v. Union of India,
(1983) 1 SCC 322, referring to Social Security Law by
Prof. Harry Culvert, it is stated as follows:
―‗Pension’ is paid according to rules which can
be said to provide social security law by which
it is meant those legal mechanism primarily
concerned to ensure the provision for the
individual of a cash income adequate, when
// 17 //taken along with the benefits in kind provided
by other social services (such as free medical
aid) to ensure for him a culturally acceptable
minimum standard of living when the normal
means of doing so failed.‖
14. In State of Kerala v. Padmanabhan
Nair, AIR 1985 SC 356, the apex Court observed that
pension and gratuity are no longer any bounty to be
distributed by the Government to its employees on
their retirement but are valuable rights and property in
their hands and any culpable delay in settlement and
disbursement thereof must be visited with the penalty
of payment of interest at the current market rate till
actual payment.
15. In Vasant Gangaramsa Chandan v.
State of Maharashtra, (1996) 10 SCC 148, the apex
Court held that pension is not bounty of the State. It is
earned by the employee for service rendered to fall
back, after retirement. It is a right attached to the office
and cannot be arbitrarily denied.
16. In State of Punjab v. Justice S.S.
Dewan, (1997) 4 SCC 569, the apex Court held that
// 18 //
conceptually, pension is a reward for past service. It is
determined on the basis of length of service and last
pay drawn. Length of service is determinative of
eligibility and quantum of pension.
The same view has also been reiterated
in Dr. Uma Agarwal v. State of U.P., AIR 1999 SC
1212.
17. In Kerala State Road Transport
Corporation v. K.O. Varghese, (2003) 12 SCC 293,
referring to corpus juris secundum, it is stated that the
title „pension‟ includes pecuniary allowances paid
periodically by the Government to persons who have
rendered services to the public or suffered loss or
injury in the public service, or to their representative;
who are entitled to such allowances and rate and
amount thereof; and proceedings to obtain and
payment of such pension.
18. Further, referring to Halsbury‟s Law of
England 4th Edn. Reissue, Vol.16, in the very same
// 19 //
judgment in Kerala State Road Transport
Corporation (supra), the apex Court held as follows:
―‗Pension’ means a periodical payment or
lump sum by way of pension, gratuity or
superannuation allowance as respects which
the secretary of state is satisfied that it is to
be paid in accordance with any scheme of
arrangement having for its object or one of its
objects to make provision in respect of persons
serving in particular employments for
providing with retirement benefits and, except
in the case of such a lump sum which had
been paid to the employee.‖
19. Considering the meaning attached to
the word „pension‟, as stated above, and on analysis of
the same, three things emerge; (i) that the pension is
neither bounty nor a matter of grace depending upon
the sweet will of the employer and that it creates a
vested right subject to the statute, if any, holding the
field; (ii) that the pension is not an ex gratia payment
but it is a payment for the past service rendered; and
(iii) it is social welfare measure rendering social-
economic justice to those who in the „hey days‟ of their
life ceaselessly toiled for employers on an assurance
that in their ripe old age they would not be left in lurch.
// 20 //
It must also be noticed that the quantum of pension is
a certain percentage correlated to the emoluments
earlier drawn. Its payment is dependent upon
additional condition of impeccable behaviour even
subsequent to retirement.
20. In U.P. Raghavendra Acharya v. State
of Karnataka, (2006) 9 SCC 630, the apex Court held
that „pension‟ is treated to be a deferred salary. It is not
a bounty. It is akin to right of property. It is correlated
and has a nexus with the salary payable to the
employees as on date of retirement.
21. Now, coming to the question of „family
pension‟, it means a regular monthly amount payable
by employer to a person belonging to the family of an
employee in the event of his death. Therefore, vide
letter dated 01.07.2015 issued by Registrar of the
Berhampur University, on the basis of the request
made by the pensioner to the authority for accepting
petitioner as nominee, the Vice-Chancellor, pursuant to
// 21 //
Pension Amendment-2011 by the Government of
Odisha in OM No. 32745/F dated 23.07.2011, has
allowed the petitioner, who is the divorced daughter of
the pensioner, to be the next recipient of the family
pension. Thereby, the entitlement of the petitioner has
also been determined during the lifetime of the
pensioner. So, when there is no objection from the
other legal representatives to extend the benefit to the
petitioner, particularly when the petitioner satisfies the
income criteria as provided in the Pension Rules,
mentioned above, the same should not have been
denied by the authority. Therefore, the impugned
communication dated 11.03.2019 under Annexure-7,
being an outcome of non-application of mind, is liable
to be quashed and hereby quashed. The opposite
parties are directed to calculate the pensionary benefits
admissible to the petitioner and take necessary steps
for payment of family pension to her from the date of
her entitlement as expeditiously as possible, preferably
// 22 //
within a period of four months from the date of
communication of this judgment.
22. The writ application is thus allowed. But
there shall be no order as to costs.
As the restrictions due to resurgence of
COVID-19 situation are continuing, learned counsel for
the parties may utilize a printout of the judgment
available in the High Court‟s website, at par with
certified copy, subject to attestation by the concerned
advocate, in the manner prescribed vide Court‟s Notice
No.4587, dated 25th March, 2020 as modified by
Court‟s Notice No. 4798 dated 15th April, 2021.
…………………………
DR. B.R. SARANGI,
JUDGE
Orissa High Court, Cuttack
The 14th July, 2021, Alok/GDS