Mr. S. Serto, J. (Oral)—Heard Mr. Imti Longchar, learned counsel for the petitioner and also heard Mr. V. Zhimomi, learned Government Advocate appearing for the respondent Nos. 1, 2, 3, 4, 5, 6 & 8. None appears on behalf of the respondent No. 7.
This is a writ petition filed by an illiterate, rustic and poor widow who hails from one of the remotest villages of the State and, belonging to one of the least develop tribes in the State, seeking to get through this Court''s intervention under Article 226 of the Constitution of India the pensionary benefits of her son who was appointed on 29.07.2005 as regular Lower Division Assistant (District) in the Public Health Engineering Department, Government of Nagaland, but died while in harness on 03.02.2006.
2. The case of the petitioner as submitted by her learned counsel is as follows :-
That her son Late Mongo was appointed as Lower Division Assistant on regular basis in the Public Health Engineering Department, Government of Nagaland, vide Office Order No. CE/PHE/EST-2/13/94/521-524, dated 29.07.2005, issued by the Additional Chief Engineer of the Department, in the scale of pay of Rs. 3050-75-4590/- plus all other allowances as are admissible from time to time. Following the issuance of the said order he joined the office on 01.08.2005. He continued in service till 03.02.2006, the day on which he unfortunately passed away. Thereafter, the petitioner being a widow, illiterate, rustic and poor, belonging to one of the most backward tribe, Khiamnungan and also hailing from one of the remotest villages, therefore, unaware of her right as the dependent mother of her deceased son kept quiet for a long time. But in the year 2014 with the advice of certain people she approached the Additional Deputy Commissioner, Noklak, Tuensang for Actual Nominee Certificate and also Succession Certificate. The Additional Deputy Commissioner, Noklak, Tuensang granted the two certificates on 04.07.2014 (the certificate are annexed as Annexure- 4 & 5 to the writ petition). Thereafter, she submitted a representation dated 16.02.2015 to the Additional Chief Engineer, PHED, Government of Nagaland requesting him to extend the pensionary benefits of her late son being the only person entitled to the same. However, the representation of the petitioner, since then, has remained as such without yielding any result. Having no choice the petitioner basing her claim on the provisions of Central Civil Services (Pension) Rules, 1972 and Office Memorandum issued by the Government of Nagaland bearing No. FIN/ESTT-11/2006 Dated, Kohima, the 23rd April, 2008 has come to this Court praying for issuance of appropriate writ or direction or order so that she will be able to enjoy the pensionary benefits which would accrue to her from the past employment of her son.
The relevant provisions of the Central Civil Services (Pension) Rules, 1972 and the Office Memorandum of Government of Nagaland on which the petitioner has based her claim shall be reproduced at later stage of this judgment.
3. The respondents filed a joint affidavit-in-opposition and objected the prayer of the petitioner on two grounds :-
(i) That the petitioner have been silent for nearly 9(nine) long years and have not explained the delay properly as such, her claim is barred by limitation.
(ii) That Late Mongo son of the petitioner died during the probationary period before he could complete 1(one) year, therefore, the petitioner would be entitled to pensionary benefits only if her late son was examined by appropriate Medical authority and declared fit by the authorities for Government service immediately prior to his appointment as per the provisions of Rule-54 (2) (a) of the Central Civil Services (Pension) Rules, 1972 and the explanation. But such medical examination was not done in the case of Late Mongo, the petitioner is not entitled to get the pensionary benefits.
4. The petitioner in her reply affidavit to the affidavit-in-opposition submitted that her village i.e. Choklangan in Tuensang district is one of the remotest villages in the State of Nagaland, located in the frontier of Myanmar where there was total absence of road communication till 2010. It was only then that some semblance of road connectivity was established. She also stated that there was no electricity supply in the village and it was only when in the month of May, 2015, a 100 KV Mini hydro project was commissioned and electricity reached the village. Till date, there is no telecommunication service available. Living in such circumstances, that too added with illiteracy, ignorance and poverty she was not only unaware of her rights but was not in a position to persue such benefits.
It would not only be unfair but unreasonable and unjust to expect a widow living in that kind of situation or circumstances to be aware of such rights and also to pursue the same in time. The Courts in the Country have been following instructive directions of the Hon''ble Supreme Court and have been liberal when it comes to condonation of delay, whenever sufficient cause is shown for the delay by the petitioner seeking for condonation. In this case, as stated above, this Court is of the opinion that a reasonable cause for delay in coming to this Court has been sufficiently shown. Therefore, the objection of the respondents on that ground is not accepted.
5. On the second objection raised by the respondents, it is submitted by the learned counsel for the petitioner that the provision of the Central Civil Services (Pension) Rules, 1972 particularly, Rule 54 (2) (aa) makes it clear that family members of a deceased Government servant who died before completing one year are also entitled to family pension and other benefits, therefore, there is no reason why the petitioner should also not be given the same benefits.
6. It is also further submitted that from conjoin reading of the Office Memorandum issued by the Finance Department, Government of Nagaland and the provisions of Central Civil Services (Pension) Rules, 1972 it is clear that w.e.f 01.01.1998 the ambit of the expression "family" has been extended to cover parents of Government employees who died in harness and left no widow or child. Therefore parents of such employees shall be entitled to pensionary benefits including family pension provided they were wholly dependent on the deceased Government servant during his life time.
7. Before I take up this issue, for easy reference, the relevant provisions of the laws referred to by the petitioner and the respondents are reproduce herein below :-
8. First the provision of Central Civil Services (Pension) Rules, 1972 on which the claim of the petitioner is based upon :-
"Rule 3 Death benefits: in the event of death in harness of temporary/quasi-permanent Government servants their families shall be eligible to family pension and death gratuity on the same scale as admissible to families of permanent Government servants under the c.c.s (Pension) Rules, 1972".
"Family Pension 1964
7:2 For the purpose of grant of Family Pension, the definition of ''Family'' shall also include :
a. Parents who were wholly dependent on the Government servant when he/she was alive provided the deceased employee had left behind neither a widow nor a child".
"54. Family pension, 1964
(2) without prejudice to the provisions contained in sub-rule (3), where a Government servant dies-
(a) after completion of one year continuous service; or
(aa) before completion of one year continuous service provided the deceased Government servant concerned immediately prior to his appointment to the service or post was examined by the appropriate medical authority and declared fit by that authority for Government service;
Explanation :- the expression ''continuous one year service'' wherever it occurs in this rule shall be construed to include ''less than one year of continuous service'' as defined in clause (aa)".
The State Government Office Memorandum on which also the claim of the petitioner is based :-
"Government of Nagaland
Finance Department
Establishment Branch No. FIN/ESTT-11/2006
Dated, Kohima, the 23rd April, 2008.
Office Memorandum
9. Sub :- Admissibility of Family Pension To Wholly Dependent Parents Of The Employees Under Govt. of Nagaland.
10. The matter of admissibility of family pension to wholly dependent parents of deceased Govt. employees of Nagaland State, in the light of Govt of India decision on the subject has been under examination of the Govt for some time. Now, the Governor of Nagaland, after careful consideration is pleased to decide that w.e.f. 01.01.1998 the definition of family, for the purpose of grant of family pension, shall also include parents who were wholly dependent on the Govt servant when he/she was alive provided the deceased employee left behind neither a widow nor a child.
11. The admissibility of family pension to wholly dependent parents shall further be subject to following conditions :
(i) The parents were wholly dependent on the Govt. servant when he/she was alive
(ii) The Govt. servant has not left behind a widow/widower eligible son or daughter or a widowed/divorced daughter.
(iii) The income of parents is not more than Rs. 2,550/- per month production of requisite certificate in the regard shall be applicable for continuation of family pension.
(iv) The parents are eligible for family pension only at the ordinary rate i,e 30% of basic pay of the deceased employee.
These order shall be applicable in respect of Govt employees who died on or after 1.1.1998.
This O.M. is issued with the concurrence of the P & AR Department as conveyed vide letter No. PAR/PEN/15/2007 dated 02.04.2008".
12. The provisions of the Central Civil Services (Pension) Rules and the Office Memorandum given above has left no room for any doubt that a widow like mother of Late Mongo, a Government employee who died in harness is entitled to pensionary benefits. But her entitlement would depend on fulfilment of the conditions mentioned in the Office Memorandum and Rule-54 of the Central Civil Services (Pension) Rules, 1972. The conditions are :-
(i) That she should have been wholly dependent on her son while he was alive. As stated the petitioner, mother of the deceased Government servant is a widow, illiterate, rustic villager and that too of one of the remotest villages in Nagaland. Living in that circumstances and situation one can only conclude that she was dependent wholly on her son when he was alive.
(ii) That her income should not have been above Rs. 2,550/-. For the same reasons mentioned above the petitioner''s income could have never been above Rs. 2,550/- which is the income limit set in the Office Memorandum issued by the Government of Nagaland. However, to confirm the same the petitioner shall submit her income certificate to the appropriate authority at the time of processing her pensionary benefits.
(iii) That her son died leaving behind no widow and children. The fact that her son died barely before completing a year in service suggest that in most probability he died unmarried. However, to prove the same the petitioner should submit an affidavit or any document which would proof the same before the appropriate authority at the time of processing her pensionary benefits.
(iv) Now, coming to the provision of Central Civil Services (Pension) Rules, 1972, the provision of Rule-54 makes it clear that family members of a Government servant who died in harness but before completion of one year in service shall be entitled to family pension if only he was examined by appropriate medical practitioner, immediately before joining the service and declared fit by the authority for Government service. Normally, or in normal practise a Government servant is appointed after he is examined by a medical board or medical practitioner and declared fit. Since the petitioner''s son was allowed to join service and also allowed to continue for almost a year it can only be assumed that he was examined by a duly constituted medical board or authorised medical practitioner and was declared fit for Government service. Otherwise he would not have been allowed to continue that long in service. If the respondents want to show otherwise the burden is on them to do so since the record is in their custody. But having not produced the same, presumption is against them. For the sake of discussion, supposing a Government servant is first allowed to join service and later on subject him to medical examination and in case he happens to be found unfit it could lead to a lot of chaotic situation specially when in a recruitment process many people are declared qualified. Therefore, to avoid that kind of situation normally issuance of appointment orders are preceded by Police verification and medical examination.
13. In view of what has been stated above, the second objection raised by the respondents cannot be accepted. Therefore, this Court has no hesitation in granting the prayer of the petitioner.
14. Accordingly, the respondents are directed to process for granting of all pensionary benefits including family pension of Late Mongo, Lower Division Assistant (District) who died in harness to his widowed mother i.e. the petitioner and to complete the same within 3(three) months from the date of receipt of a copy of this order. However, as stated above the petitioner should produce all the documents in support of her claim as per the Office Memorandum of the Government of Nagaland given above.
15. With this, writ petition is disposed of.
