Can kids get ‘family pension’ if parents separate? Tribunal answers in key ruling

It was not disputed that the marriage between the woman and the late retired employee was dissolved, noted the tribunal, which was presided over by Pankaj Kumar (member-administrative).

‘Excluded wife, children from property’

• An employee who was working as a technician grade-I under the railway authorities retired from service on July 31, 2016, and subsequently passed away on November 23, 2019.
• He had been married and had a son and a daughter from the said relation.
• The said estranged wife moved for the grant of family pension on September 2, 2022.
• The representation was rejected by the railway authorities by an order passed on October 27, 2022.
• The rejection was on the grounds that the late employee had filed an affidavit on July 21, 2009, stating that he had excluded his wife and children from his movable and immovable property and that he had been granted a divorce by the family court by decree dated August 1, 2016.
• The authorities also mentioned that the late employee had submitted an application on November 17, 2016, stating that he did not want to nominate any family member for family pension.
• Aggrieved by the said rejection, the applicants have approached the administrative tribunal.

‘Divorce does not affect status of kids’

• The Central Administrative Tribunal observed that, as per Rule 75 of the Family Pension Scheme for railway servants Rules, 1964, “the family pension is payable to the widow (till her remarriage) and to the unmarried children of the deceased railway employee till they attain the age of 25 years, or they get married, or start earning their livelihood, whichever is earliest.”
• It was not disputed that the marriage between the wife and the late retired employee was dissolved as per the judgment dated August 1, 2016, of the family court, Lucknow, the tribunal noted.
• The tribunal, in consequence of the above finding, held that since the presently estranged wife was no longer married to the late employee when he died on November 23, 2019, she was not entitled to the family pension payable under Rule 75.
• Taking a different stance in the case of the son and the daughter, the tribunal ruled that the status of the children of the former employee would not be affected by the event of divorce of their parents, and hence, they would be entitled to the family pension in terms of the pension rules.
• The tribunal stated that the pension which the family members were entitled to was created by Rule 75 of the Pension Rules, which was in turn made under Article 309 (recruitment and conditions of service of persons serving the Union or a state) and that such “entitlements” could not be changed and taken away based only on a declaration made or not made by the former employee.
• Accordingly, the order passed by the railway authorities dated October 27, 2022, was set aside, and the said authorities were directed to make payment of the family pension to the son and the daughter of the retired employee in equal shares from the date due till the last date of their eligibility.
• The same was ordered to be done within three months of receipt of a copy of the order, along with interest on delayed payment.

Only surviving legal heirs

Advocate Ashmendra Mani Pandey, appearing on behalf of the family members, contended that the divorce decree passed by the family court was ex parte and that their property rights could not be taken away without due process of law.

It was further contended that “a pension or family pension is not a bounty” and that the Family Pension Rules, 1964, created a right in favour of the wife and the children of the late, former employee.

The counsel also urged that the wife and the children are the only surviving legal heirs and successors of the late employee in accordance with the Hindu Succession Act, 1964.

‘Did not want to include any name’

Advocate Prgyamati Gupta, appearing on behalf of the authorities, submitted that the late railway employee had submitted an affidavit on July 21, 2009, stating that he had ousted the wife and the children from his entire movable and immovable property.

It is further stated that the late employee had filed for divorce before the family court, Lucknow, which was allowed ex parte by the court by judgment and order dated August 1, 2016.

It was also contended that the late employee had submitted an application to the authorities stating that he did not want to include any name in the pension papers for the grant of family pension.

Accordingly, the pension payment order consequently issued was in his favour and did not include any family member. Hence, it was contended that the estranged wife and the children were not entitled to a family pension.