T. Jacob, Member(A)
1. O.A. has been filed by the applicant seeking the following reliefs:-
“For the reasons and grounds raised above, it is prayed that this Honourable Tribunal may be pleased to set aside the Order of the 2" Respondent in No. U/P.500/IIL/589 dated 06.03.2020 and direct the respondents to extend the benefit of family pension of the applicant's father Late Ramiah Achari Black Smith SVKS who retired on 31.0.3.1991 to the applicant and render justice.”
2. Brief facts of the case as submitted by the applicant is as follows:-
The applicant's father Sri Ramiah Asari joined as Senior Track Man and his service was made permanent in 1979. His service was terminated on 08.10.1992. He died on 5.7.2007. He received his pension till his death. The applicant therefore applied to the respondents to extend the benefit of Family Pension as the daughter of Ramiah with effect from 6.7.2007 as per the Rule 75 of the Pension Rules with accrued interest. The other legal heirs of Ramiah gave no objection letter for the applicant to receive the Family Pension. Since ‘her representation to extend the benefit of family pension to her was rejected without discussing and considering the applicant's contentions, the applicant filed O.A. No. 310 of 2019 for the necessary relief before this Tribunal. By order dated 15.11.2019 the Tribunal directed the respondents to consider her representation dated 26.06.2019 and pass a reasoned and speaking order within a period of 4 months from the date of receipt of copy of the order. By order dated 06.03.2010, the 2™ respondent passed an order holding that the applicant is not entitled to the benefit of the Family pension on untenable grounds. This OA is filed against the impugned order dated 06.03.2010 by the 2™ respondent.
3. The applicant has sought the aforesaid relief, inter alia, on the following grounds:-
a) The imougned order of the respondent is erroneous in law and in violation of Principles of Natural justice;
b) The respondents ought to have extended the benefit of family pension to - the applicant as she is eligible as a divorced daughter in view of the Railway Board's letter No. F (E)IT/98/PNI/4 dated 27.04.1998 circulated O.M. No. 45/51/97-P& PW (E) dated 05.03.1998 has brought widowed/divorced daughters within the definition of the Pension rules;
c) The respondents failed to see that the demand for family pension was made with reference to the mandatory provision made under Rule 123 of the Indian Railways Establishment Code issued under Proviso to Article 309 of the Constitution ~ of India.
d) The denial of extension of family pension to the applicant is in gross violation of Rule 75 (6)(g) of the Pension Rules;
e) The respondents ought to have seen widowed/divorced daughters were included within the definition of family for the purpose of extension of pension as was recommended by the 5" Central Pay Commission and the same was accepted and implemented by the Government of India.
f) The extension of family pension was denied mainly on the ground that the “applicant has filed divorced petition in the year 2018 and order was passed by the Hon'ble Sub Court, Tenkasi was passed on 28.01.2020, but the applicant's father died on 05.07.2007. This is totally erroneous because it can not be said that the applicant has filed the divorce petition only for enabling her to avail the family benefit as a divorced daughter.
g) To distinguish a daughter who initiated divorce proceedings when her father was alive and a daughter who filed divorce proceedings after the death of father to extend the benefit of family pension is contrary to law, against the well settled principles of law as laid down by the Hon'ble Supreme Court of India;
h) The Railway Board Establishment No. 102/2017 dated 23.08.2017 provided the extension of the benefit of family pension to divorced daughters and it does not stipulate any condition that the divorce proceedings must have been initiated during the life time of the father. Otherwise, it would put the daughters who was constrained to initiate divorce proceedings subsequent to their father's death in a disadvantageous position.
4. Respondents have filed detailed reply. It is submitted that the Railway Board vide letter No. F(E)II/2007/PN1/5 dated 23.08.2017, (RBE 102/2017) applied mutatis mutandis Circular of Personnel, Department of Pension & Pensioner's Welfare vide office memorandum No.1/13/09-P&PW(E) dated 19.07.2017 (marked as Annexure R-1) wherein clarification has been given in regard to eligibility of divorced daughters for grant of family pension. It is stated in para '4...Accordingly, divorced daughters who fulfil other conditions are eligible for family pension if a decree of divorce had been issued by the competent court during the life time of at least one of the parents.
5. It is further submitted that her father Shri Ramiah Asari retired from railway on 31-05-1991 and he was in receipt of pension till his death on 05.07.2007. In his declaration of family composition for family pension he has given name of his wife as R. Guruvammal and name of his son (1) R. Kulasekaran (2) R.Petchhi Appan and (3) R. Raju, name of his daughters as (1) R.Guruvarmal (2) R.Meenakshi. (Copy of which is marked as Annexure R-2).
6. It is further submitted that the employee during his lifetime had not stated about 1* wife and 2" wife. The applicant is claiming as daughter of 2™ wife, she has not elaborated about her status and also whether Late P. Guruvammal was 1 wife or 2™ wife. The applicant's father expired on 05.07.2007 and thereafter for a long time the applicant did not made any claim and now she is making untenable claims and the _ Same is barred by limitations. The applicant had filed OA No. 1500/2019 which was disposed with direction to consider representation, Applicant's case is barred by limitation and she has not filed any application to condone long delay.
7. The respondents deny the allegation of the applicant that respondents vide letter dated 06.03.2010 (2020) passed an order that the applicant is not entitled to the benefits of the family pension since the applicant is a divorcee. The impugned letter is self-explanatory. The reasoning quoted by the applicant is correct that in terms of - RBE 102/2017 eligibility for divorced daughter for grant of family pension is at least the divorce proceedings should have been instituted in the competent court during the ‘life time of employee/pensioner or his/her spouse but divorce took place acter their death provided the claimant fulfils all other conditions for grant of family pension. In such cases, the family pension will commence from the date of divorce. The applicant has obtained divorce in HMOP17/2018, Tenkasi vide order dated 28.01.2020 (Copy of which is marked as Annexure R-3), whereas the employee: expired on 05:07.2007 and his spouse predeceased him. So, in the light of the above circular the applicant is not eligible for consideration of family pension.
8. It is submitted that the applicant is projecting her case as if her claim has been rejected without considering the points that divorced daughter are eligible for family pension. There is no qualm about eligibility of divorced daughter only relevant issue is when the divorce was filed or obtained. The respondents pray for dismissal of the OA.
9. Heard the Learned counsel for the respective parties and perused the pleadings and documents on record.
10. The issue for consideration in this O.A is whether the applicant is entitled for the family pension being a divorced daughter.
11. Admittedly, this is the second round of litigation. The applicant earlier filed O.A. No. 310 of 2019 for the necessary relief before this Tribunal. By order dated 15.11.2019 the Tribunal directed the respondents to consider her representation dated 26.06.2019 and pass a reasoned and the speaking order within a period of 4 months from the date of receipt of copy of the order. By order dated 06.03.2010, the 2™ respondent passed an order holding that the applicant is not entitled to the benefit of the Family pension on untenable grounds. Hence, the OA.
12. The facts are not in dispute. The applicant’s father, Ramaih Ansari retied on 31.3.1991 superannuation and subsequently he expired on 5.7.2007. The applicant is the daughter of the second wife, Gurvammal, who pre-deceased her father. The applicant has filed divorce petition in the year 2018 and the order was passed by the Sub Court Tenkasi on 28.01.2020. The applicant submitted divorce _ decree order of Sub Court, Tenkasi on 10.02.2020.
13. The relevant portion of the Office Memorandum No.1/13/09-P&PW(E) Government of India, Ministry of Personnel, P.G. & Pensions, Department of Pensions & Pensioner's Welfare dated 19.07.2017 regarding eligibility of divorced daughters for grant of family pension is extracted as under:-
“I, This department has been receiving grievances from various quarters that the divorce proceedings are a long drawn procedure which take many years before attaining finality. There are many cases in which the divorce proceedings of a daughter of a Government employee/pensioner had been instituted in the competent court during the life time of one or both of them but none of them was alive by the time the decree of divorce was granted by the competent authority.
. The matter has been examined in this department in consultation with Department of Expenditure and it has been decided to grant family pension to a divorced daughter in such cases where the divorce proceedings had been filed in a competent court during the life time of the employee/pensioner or his/her spouse but divorce took place after their death- provide the claimant fulfils all other conditions for grant of family pension under rule 54 of the CCS (Pension) Rules, 1972. In such cases the family pension will commence from the date of divorce.”
14. RBE 102/2017 clearly and unequivocally makes it clear in para 6 that ‘it has been decided to grant family pension to a divorced daughter in such cases where the divorce proceedings had been filed in a competent court during the lifetime of employee/pensioner or his/her spouse but divorce took place after their death provided the claimant fulfils all other conditions for grant of family pension under rule 54 of the CCS (Pension) Rules, 1972. In such cases, the family pension will commence from the date of divorce.
15. As per Railway Board circulars divorced daughter is entitled to family pension but it is subject to certain conditions which has been elaborately explained in | the previous para. The pertinent question is whether the applicant had got decree of divorce or divorce proceedings was filed in a competent court during the lifetime of at least one of the parents. As on the date of demise of the Railway employee, his daughter was neither a divorcee nor was any divorce petition pending in any court of law. The applicant has filed the petition for divorce from the spouse posterior to the demise of her father and obtained Decree of Divorce on 28.01.2020 and as such, as per the railway board circular she is not entitled to family pension on the account of divorced daughter. The impugned order has been passed by following all statutory norms. There is no violation of any rules and circulars as alleged by the applicant. There are absolutely no merits in this O.A. and it is liable to be dismissed.
16. In the conspectus of the above facts and circumstances of the case, I do not see any justification to allow the OA in favour of the applicant. Resultantly , the OA is liable to be dismissed and is accordingly dismissed. No order as to costs.
