IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
APPELLATE SIDE
Present:
The Hon’ble Acting Chief Justice Nishita Mhatre
The Hon’ble Justice Tapabrata Chakraborty
F.M.A. 432 of 2017
with
CAN 8270 of 2016
Purnima Das Mahanta (Biswas)
versus
The Union of India Ors.
For the Appellant : Mr. Surya Prasad Chattopadhyay.
For the Union of India : Mr. Dibashis Basu.
For the State : Mr. Jaharlal De,
Mr. Md. Shamim ul Bari.
Hearing is concluded on : 06.09.2017.
Judgment On : 15th September, 2017.
Tapabrata Chakraborty J. :
1. The instant appeal has been preferred challenging an
order dated 30th July, 2015 passed by the learned Single Judge
in WP 16696 (W) of 2015. The said writ petition was preferred by
the appellant herein challenging, inter alia, an order dated 19th
February, 2015 passed by the respondent no.4 rejecting the
petitioner’s prayer for grant of family pension under the
Swatantrata Sainik Samman Pension Scheme, 1980 (hereinafter
referred to as the said Scheme) formerly known as Freedom
Fighter’s Scheme, 1972.
2. Shorn of unnecessary details the facts are that one
Narayan Das Mohanta, a freedom fighter, was granted pension
under the said Scheme on 6th July, 1987. His first wife Smt.
Santipriya Das Mohanta expired on 28th January, 2003.
Thereafter, he married the appellant on 15th May, 2006. The
appellant was earlier married to one Achinta Biswas but on 27th
July, 2002 the said marriage was dissolved on the basis of a
mutual divorce petition. Narayan Das Mohanta expired on 16th
December, 2007. The appellant within six months thereafter
applied for family pension on 27th March, 2008. Subsequent
thereto, Niharendu Das Mohanta, son of Late Narayan Das
Mohanta preferred a Title Suit No.116 of 2008 seeking a
declaration that no marriage took place on 15th May, 2006
between his father and the appellant and that the marriage
certificate was false and fabricated and he sought for a
permanent injunction to restrain the appellant from withdrawing
any pension amount from the State. Upon contested hearing the
said suit was dismissed by a judgment dated 31st August, 2012.
The said judgment was challenged in a Title Appeal No.92 of
2012 by Niharendu and upon contested hearing the said appeal
was also dismissed by a judgment dated 19th March, 2013. After
dismissal of the appeal the appellant renewed her prayer for
grant of family pension by submitting a representation on 8th
January, 2013 and such claim was ultimately rejected by an
order dated 19th February, 2015 passed by the respondent no.4.
3. Mr. Chattopadhyay, learned advocate appearing for the
appellant/writ petitioner submits that the appellant’s application
for grant of family pension submitted on 27th March, 2008 could
not have been rejected on the basis of the Guidelines for
disbursement of Central Samman Pensions (hereinafter referred
to as the said Guidelines) which came into effect from 6th August,
2014.
4. He further submits that the appellant applied for family
pension on 27th March, 2008 and in the midst thereof the Title
Suit was filed and the said the application was not forwarded by
the State authorities as enquiry could not be completed due to
pendency of the suit. Such fact would be explicit from the
judgment dated 31st August, 2012 passed in the said Title Suit
wherein it has been categorically observed that “State defendant
is countered by plaintiff as if it is laying stress upon the case of
defendant no.1, but actually the State defendant, in its written
statement submitted that it could not finish its enquiry process”.
5. Per contra, Mr. Basu, learned advocate appearing for the
respondent nos.1 and 4 submits that the application for family
pension was not submitted to the competent authority prior to
coming into effect of the said Guidelines and as such the
appellant’s claim has been rightly rejected in terms of Para 5 of
the said Guidelines and there is also no infirmity in the order
impugned by which the learned Single Judge refused to exercise
discretion in favour of the appellant.
6. He further submits that marriages were happening with
the sole motive of availing pension and as such a bar was
incorporated in Para 5 of the said Guidelines to the effect that if
the freedom fighter marries after the sanction of pension then
family pension to such spouse shall not be admissible. No vested
right accrued in favour of the appellant to be considered in terms
of the earlier Scheme on the basis of the application submitted
before the District Magistrate, who is not the competent and
appropriate authority to sanction pension. Such submissions of
Mr. Basu have been adopted by Mr. Dey, learned advocate
appearing for the respondent nos.1 and 3.
7. One of the reasons towards dismissal of the writ petition
was that there was no prayer seeking any declaration that the
said Guidelines are ultra vires the Constitution of India or the
Scheme of 1980. Question of seeking any such declaration does
not occasion since it had been the specific case of the appellant
that the said Guidelines are not applicable in respect of her claim
for family pension.
8. The fact that the appellant applied for family pension but
the same could not be processed by the State authorities due to
pendency of the Title Suit No.116 of 2008 is explicit from the
contents of the judgment delivered in the said suit on 31st
August, 2012. Though the application for family pension was
submitted by the appellant on 27th March, 2008 much prior to
the said Guidelines which came into effect from 6th August, 2014,
the same was forwarded by the Government of West Bengal to the
respondent no.4 vide letter dated 5th January, 2015, as would be
explicit from the order passed the respondent no.4 on 19th
February, 2015. The delay towards consideration of the
appellant’s claim is thus attributable to the respondents for
which the appellant cannot be made to suffer.
9. The said Scheme of 1980 was not altogether abolished by
the said Guidelines. The purpose of issuance the said Guidelines
was to clarify the difference between the normal Central Civil
Pensioners and the Central Freedom Fighter Pensioners and to
remove the possibility of misuse of the said Scheme. There is no
clause similar to Para 5 of the said Guidelines in the said Scheme
of 1980 and the bar imposed by Para 5 of the said Guidelines
could not have been applied in respect of the appellant’s claim
since the appellant had sought for family pension at a point of
time when the said Guidelines were not in existence. Her claim,
therefore, was required to be considered in terms of the said
Scheme of 1980 which was in vogue on 27th March, 2008 when
she submitted her application for family pension.
10. The argument of Mr. Basu that the appellant did not
submit her application before the competent authority is also not
acceptable to this Court in view of the specific averments made
in the affidavit in opposition filed on behalf of the respondent
no.1 to the stay application that the claim for pension can be
considered by the Central Government only when the same is
duly verified and recommended by the State Government / Union
Territory Administrations concerned and that no action is,
therefore, possible on the applications sent directly to the Central
Government without routing through the State Government /
Union Territory Administrations concerned.
11. The grounds towards dismissal of the writ petition are
thus indefensible and accordingly the order impugned in the writ
petition and the order impugned in the present appeal are set
aside and the respondent no. 4 is directed to consider the
appellant’s claim for family pension, as forwarded by the State
Government vide letter dated 5th January, 2015, afresh strictly in
terms of the provisions of the said Scheme of 1980 and to pass a
reasoned order and to communicate the same to the appellant.
12. The above exercise shall be completed within a period of
eight weeks from the date of communication of this order.
13. It is, however, made clear that the respondent no.4
would be at liberty to examine the legality and veracity of the
documents pertaining to the appellant’s claim and to call for
appropriate records and enquiry report, if any prepared by the
State Government upon verification and examination of the
appellant’s application for grant of family pension.
14. With the above observations and directions the appeal
and the connected application are disposed of. There shall,
however, be no order as to costs.
Urgent photostat certified copy of this order, if applied for,
be given to the learned advocates for the parties upon compliance
of all necessary formalities.
(Tapabrata Chakraborty, J.) (Nishita Mhatre, A.C.J.)
