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Afr Sujata Mohanty vs Berhampur University on 14 July, 2021

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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

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