Supreme Court- If Adopted Child was not dependant on the government servant prior to his death is not entitled to Family Pension under the definition of ‘family’ under Rule 54(14)(b) of the CCS (Pension) Rules

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2023 (Arising out of SLP (C) No.21876 of 2017)

SHRI RAM SHRIDHAR CHIMURKAR                                                   ….. APPELLANT(S)

VERSUS

UNION OF INDIA & ANR.                                                                       … RESPONDENT(S)

J U D G M E N T

NAGARATHNA J.

Leave granted.

2. This appeal assails the judgment of the Nagpur Bench of High Court of Judicature at Bombay, dated 30th November, 2015 wherein Writ Petition No. 2110 of 2003 filed by the Respondents herein was allowed. Consequently, the judgment and order passed by the Central Administrative Tribunal, Mumbai dated 19th July, 2002, whereby the Original Application filed by the Appellant herein was allowed, has been set aside.

3. Succinctly stated, the facts giving rise to the instant appeal are as under: 3.1. That Shridar Chimurkar was serving as a Superintendent in the office of Respondent No. 2, Deputy Director and HO 2 National Sample Survey Organization, Field Zonal Office, Nagpur, and retired on attaining superannuation in the year 1993. He died issueless in the year 1994, leaving behind his wife, namely, Maya Motghare who thereafter adopted Sri Ram Shridhar Chimurkar, the Appellant herein as her son on 6th April, 1996, i.e., nearly two years after the death of Shridar Chimurkar. 3.2. After the death of Shridar Chimurkar, his wife, Maya Motghare and the Appellant were living in a portion of a house owned by Prakash Motghare, the natural father of the Appellant. Subsequently, in April, 1998, Maya Motghare married Chandra Prakash, a widower, and began residing with him at Janakpuri, New Delhi. 3.3. In the aforesaid background, the Appellant claimed family pension payable to the family of the deceased government employee, Shridar Chimurkar, from the Respondents, by addressing a letter in this regard, dated 18th January, 2000. The claim of the Appellant was rejected by the Respondents on the ground that children adopted by a widow of a government servant, after the death of the government servant, would not be entitled to receive family pension as per Rule 54 (14) (b) of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as “CCS (Pension) 3 Rules” for the sake of brevity). The Respondents’ decision was communicated to the Appellant by way of letter dated 23rd February, 2000. 3.4. Aggrieved by the Respondents’ rejection of his claim for family pension, the Appellant filed an Original Application, being O.A. No. 2166 of 2001, before the Central Administrative Tribunal, Mumbai, praying that the order of the Respondents dated 23rd February, 2000 be quashed and set aside, as being illegal and unconstitutional. Further, a declaration that the Appellant is the adopted son of the deceased government employee and is therefore entitled to receive family pension, was also sought. 3.5. The Central Administrative Tribunal, Mumbai, by an order dated 19th July, 2002, allowed O.A. No. 2166 of 2001 filed by the Appellant and directed the Respondents to consider the Appellant’s claim for family pension by treating him as the adopted son of the deceased government employee, Shridar Chimurkar. The salient findings of the Tribunal may be culled out as under: i. That Rule 54 (14) (b) of the CCS (Pension) Rules, initially excluded sons or daughters born or adopted by the government servant after retirement, from the benefit of family pension. However, by way of 4 amendments to the said Rule in the year 1990 and 1993, the bar against children born or adopted after retirement, seeking family pension, was removed. That the order of the Respondents dated 23rd February, 2000 would not survive in view of the aforesaid amendments. ii. That as per Sections 8 and 12 of the Hindu Adoptions and Maintenance Act, 1956, (‘HAMA Act’, for short) the widow of a Hindu male is competent to adopt a son or a daughter without there being a direction/expression of desire to that effect, by her deceased husband. That the effect of adoption by a widow would be that the child so adopted would be deemed to be the child of her deceased husband also, vide Vijayalakshmamma vs. B.T. Shankar, (2001) 4 SCC 558 (“Vijayalakshmamma”). iii. That the adoption of the Appellant by Maya Motghare would be deemed to be adoption of the Appellant by her deceased husband Shridar Chimurkar also. 3.6. Aggrieved by the judgment and order of the Tribunal, the Respondents herein challenged the same by filing Writ 5 Petition No. 2110 of 2013 before the Nagpur Bench of High Court of Judicature at Bombay. 3.7. By the impugned judgment and order dated 30th November, 2015, the High Court allowed the said Writ Petition and reversed reversed judgment and order passed by the Central Administrative Tribunal, Mumbai dated 19th July, 2002. Hence this appeal by the original applicant. 3.8. Before proceeding further, it would be useful to encapsulate the reasoning of the High Court for allowing the Writ Petition filed by the appellant herein, as under: i. That the Appellant herein could have been entitled to receive family pension had he been legally adopted by the deceased government servant, which was not the case in the instant matter. ii. That the Tribunal had erred in relying on Section 8 and 12 of the HAMA Act, 1956, which generally deals with, inter alia, adoption by a Hindu widow. iii. That Rule 54 (14) (b) of the CCS (Pension) Rules does not deal with adoption by a widow of a government servant after the death of the government servant.

4. We have heard learned Counsel, Mrs. K. Sarada Devi, appearing on behalf of the Appellant, and learned Additional 6 Solicitor General of India, Mrs. Madhvi Goradia Divan, appearing on behalf of the Union of India, and perused the material on record.

Submissions:

5. Mrs. K. Sarada Devi, learned Counsel appearing on behalf of the Appellant, at the outset, contended that the High Court erred in interfering with the findings of the Tribunal, without appreciating the law on the capacity of a Hindu widow to adopt. 5.1. It was further contended that adoption made by a Hindu widow would be deemed to be an adoption by her deceased husband also, as per the provisions of HAMA Act, 1956, and in view of the said position of law, the High Court ought not to have interfered with the findings of the Tribunal. That such a view has stood affirmed by this Court in Vijayalakshmamma wherein a declaration was made to the effect that adoption by a Hindu widow would be deemed to be adoption by her husband also. 5.2. Reliance was also placed on the text of Rule 54 (14) (b) of the CCS (Pension) Rules, as it initially stood, as contrasted with the text of the said provision after amendments to the same in the years 1990 and 1993, to contend that the bar against children born or adopted after retirement, seeking family pension, was removed by way of the subsequent amendments. Therefore, children adopted at any time after retirement of the government servant, including children adopted by the widow of the government servant after his death ought to be included under the definition of ‘family’ for the purpose of granting family pension. 5.3. That unlike the position under classical Hindu Law, a Hindu female under the provisions of the HAMA Act, 1956 is rendered eligible to adopt, not only acting at the behest of her husband or on seeking his approval, but also in her own right. Further, Section 12 thereof provides that a child adopted shall cease to have any ties with the family of her/his birth and shall only have ties with his adoptive family. On a conjoint reading of the aforesaid propositions, what emerges is that an adoption by a Hindu widow would necessarily create a tie between the child so adopted and her deceased husband. In that context it was submitted that the Appellant herein would have ties not only with Maya Motghare, his adoptive mother, but also with her deceased husband, Shridar Chimurkar, more so because, as on the date of adoption, she had not re-married. That, as on the date of adoption of the Appellant, Maya Motghare was the widow of 8 Shridar Chimurkar and therefore, the Appellant would be the adopted son of Shridar Chimurkar also and all enumerated consequences of such adoption would necessarily follow. With the aforesaid averments, it was prayed that the present appeal be allowed by setting aside the impugned judgment of the High Court and restoring the judgment of the Tribunal.

6. Per contra, learned Additional Solicitor General Mrs. Madhvi Goradia Divan, appearing on behalf of the Union of India submitted that the impugned judgment is based on a faultless appreciation of the law and does not call for interference by this Court. 6.1. It was submitted that Rule 54 (14) (b) of the CCS (Pension) Rules, does not cover adoption by a widow of a government servant, after the death of such a government servant. Therefore, the said rule could not be invoked for grant of family pension to the Appellant herein. That the definition of ‘family’ in relation to a government servant, as provided under Rule 54 (14) (b) of the CCS (Pension) Rules, is not expansive enough to take within its sweep a child adopted by the widow of a government servant after his death.  6.2. It was contended that reliance placed by the learned Counsel for the Appellant on Section 8 and 12 of HAMA Act, 1956, was misplaced. That the said provisions merely recognize that a female Hindu, including a widow, could adopt a child under the provisions of the said Act. However, the said provisions are irrelevant to the present case, which pertains not merely to a question as to the capacity of a Hindu widow to adopt, but involves issues of entitlement of a child so adopted by a Hindu widow, to family pension on the death of the government servant. 6.3. It was next contended that the adoption of the Appellant by Maya Motghare, who was the widow of deceased government servant Shridar Chimurkar, would not relate back to the date of his retirement from service. Therefore, the appellant could not claim family pension, in his capacity as the adopted son of Shridar Chimurkar. With the aforesaid averments it was prayed on behalf of the Respondents that the present appeal be dismissed as being devoid of merit, and the impugned judgment of the High Court be affirmed.

Points for Consideration:  

7. Having regard to the submissions of the learned Senior Counsel and learned Counsel for the respective parties, the following points would arise for our consideration: i. Whether a child adopted by a widow of a government servant, subsequent to the death of the government servant would be included within the scope of the definition of ‘family’ under Rule 54 (14) (b) of the CCS (Pension) Rules, and would therefore be entitled to receive family pension payable under the said Rules? ii. What order? Legal Scheme:

8. Before proceeding further, it would be useful to refer to the relevant provisions of the HAMA Act, 1956 and the CCS (Pension) Rules. 8.1. HAMA Act, 1956 seeks to codify the law relating to adoptions and maintenance among Hindus. Chapter II of the Act pertains to adoption and prescribes inter-alia, the manner in which an adoption is to be made, the legal obligations created by way of adoption and the consequences that are to follow an adoption. 8.2. Section 5 of the said Act provides that no adoption shall be made by a Hindu, except in accordance with the provisions 11 of the Act; and any adoption made in contravention of the provisions of the Act shall be void and shall neither create any rights in the adoptive family, in favour of the person so adopted, nor destroy the rights of any person in the family of his or her birth. Further, Section 6 lists the requisites of a valid adoption under the said Act. Section 7 pertains to the capacity of a male Hindu to take in adoption, while Section 8 deals with the capacity of a female Hindu to adopt. Section 8 is relevant to the present case and is usefully extracted as under: “8. Capacity of a female Hindu to take in adoption.?Any female Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption: Provided that, if she has a husband living, she shall not adopt a son or daughter except with the consent of her husband unless the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.” 8.3. Section 12 of HAMA Act, 1956, which is relevant to the present case, lists the effects or consequences of adoption by providing that an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date, all the ties of the child in the family of his or her 12 birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. The said provision is extracted as under: “12. Effects of adoption. ?An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family: Provided that? (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth; (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.” 8.4. However, the present case pertains not merely to a question as to the capacity of a Hindu widow to adopt, but involves issues of entitlement of a child adopted by a Hindu widow, to family pension payable to certain categories of legal heirs of a deceased government servant. It is necessary to refer to the relevant Rules of the Central Civil Services (Pension) Rules, 1972, as amended from time to time. 13 Rule 3(1)(f) of the CCS (Pension) Rules defines the term ‘family pension’ in the following manner: “Family pension means `Family Pension, 1964', admissible under Rule 54 but does not include dearness relief.” Rule 54 deals, inter alia, with the amount of family pension payable, and the procedure to be followed for payment thereof. Rule 54(14)(b) which is relevant to the present case, defines ‘family’ for the purpose of Rule 54, in the following terms: “(b) “family” in relation to a government servant means – i. Wife in the case of a male Government servant, or husband in the case of a female Government servant; ia. A judicially separated wife or husband, such separation not being granted on the ground of adultery and the person surviving was not held guilty of committing adultery; ii. Unmarried son who has not attained the age of twenty-five years and unmarried or widowed or divorced daughter, including such son and daughter adopted legally”; iii. Dependent parents; iv. Dependent disabled siblings (i.e., brother or sister) of a government servant.” 14 With that primer, we shall proceed to consider the question as to the entitlement of a child adopted by a Hindu widow, to family pension payable under Rule 54 of the CCS (Pension) Rules.

Analysis:

9. Section 8 of HAMA Act, 1956 pertains to the capacity of a female Hindu to take a son or a daughter in adoption. The said provision permits a female Hindu who is not a minor or of unsound mind, to take a son or daughter in adoption to herself, in her own right. The provision requires that a female Hindu who has a husband, shall not adopt except with the express consent of her husband. However, no such pre-condition is applicable in relation to a Hindu widow; a divorced female Hindu; or a female Hindu whose husband has, after marriage, finally renounced the world or has been declared by a Court of competent jurisdiction to be of unsound mind. 9.1. Therefore, there exists an unequivocal statutory declaration as to the capacity of a female Hindu, including a widow, to take a son or daughter in adoption, in her own right. The question would therefore arise as to what would be the adoptive family of a child who is adopted by a widow, or by a married woman whose husband has completely and finally renounced the world, or has been declared to be of 15 unsound mind. The text of Section 12 of the Act lends limited perspective in this regard. However, this Court has clarified this aspect by declaring that, on adoption by a widow, the adopted son or daughter is deemed to be a member of the family of the deceased husband of the widow, vide Sawan Ram vs. Kalawanti, A.I.R. 1967 SC 1761. 9.2. Further, in Sitabai vs. Ramchandra, A.I.R. 1970 SC 343, this Court took note of the consequences of adoption as listed under Section 12 of the Act, and observed as follows as to the as to the effects of adoption by a Hindu widow: “5. […] It is clear on a reading of the main part of Section 12 and Sub-section (vi) of Section 11 that the effect of adoption under the Act is that it brings about severance of all ties of the child given in adoption in the family of his or her birth. The child altogether ceases to have any ties with the family of his birth. Correspondingly, these very ties are automatically replaced by those created by the adoption in the adoptive family. The legal effect of giving the child in adoption must therefore be to transfer the child from the family of its birth to the family of its adoption. The scheme of Sections 11 and 12, therefore, is that in the case of adoption by a widow the adopted child becomes absorbed in the adoptive family to which the widow belonged. In other words the child adopted is tied with the relationship of sonship with the deceased husband of the widow.”

10. Having acknowledged the consequences of adoption under Hindu Law, it is necessary to highlight at this juncture that the said provisions of the HAMA Act, 1956 determine the rights of a son adopted by a Hindu widow only vis-à-vis his adoptive family. Rights and entitlements of an adopted son of a Hindu widow, as available in Hindu Law, as against his adoptive family, cannot axiomatically be held to be available to such adopted son, as against the government, in a case specifically governed by extant pension rules. The provisions of the HAMA Act, 1956, as discussed above, relate generally to the capacity of the female Hindu to take a son or daughter in adoption and the effects that follow such an adoption. The said provisions do not lend much assistance in the instant case which does not pertain to the rights of the adoptee such as the Appellant herein under Hindu Law, but to his rights and entitlements under the CCS (Pension) Rules. There exists a vital difference between the rights of an adopted son under Hindu Law and his rights to draw family pension, which creates a burden on the public exchequer. It is therefore necessary to determine the rights and entitlements of the Appellant having regard to Rule 54 (14) (b) of the CCS (Pension) Rules. 10.1. Rule 54 deals, inter alia, with the amount of family pension payable, and the procedure to be followed for payment thereof. Rule 54(14)(b) which is relevant to the present case, 17 defines ‘family’ for the purpose of Rule 54. It is the case of the Appellant that a “son or daughter adopted legally” by a government servant is eligible to claim family pension after the death of the government servant, and therefore, such benefit ought to be extended in his favour also. That, although he was adopted by the widow of a government servant, he must be deemed to be the adopted son of the deceased government servant and therefore allowed the benefit of family person.

11. This matter calls for an interpretation of the phrase “in relation to a government servant” as appearing in Rule 54 (14)(b) of the CCS (Pension) Rules. In order to engage with this prong of the matter, i.e., effect of the phrase “in relation to a government servant” as appearing in Rule 54 (14)(b) of the CCS (Pension) Rules, in determining the Appellant’s entitlement to family pension, it may be useful to refer to the decision of this Court in Doypack Systems Pvt. Ltd. vs. Union of India, (1988) 2 SCC 299 on the interpretation of the phrase “in relation to”: In the said case, this Court held as follows, while interpreting the phrase “in relation to” in the context of the Swadeshi Cotton Mills Company Limited (Acquisition and Transfer of Undertakings) Act, 1986: 18 “50. The expression "in relation to" (so also "pertaining to"), is very broad expression which pre-supposes another subject matter. These are words of comprehensiveness which might have both a direct significance as well as an indirect significance depending on the context…In this connection reference may be made to 76 Corpus Juris Secundum at pages 620 and 621 where it is stated that the term "relate" is also defined as meaning to bring into association or connection with. It has been clearly mentioned that "relating to" has been held to be equivalent to or synonymous with as to "concerning with" and "pertaining to". The expression "pertaining to" is an expression of expansion and not of contraction.” [Emphasis by me] 11.1. The use of the phrase “in relation to” in statutes is with a view to bring one person or thing into association or connection with another person or thing. The direct or indirect nature of such association or connection depends on the context. In Rule 54(14)(b) of the CCS (Pension) Rules, the phrase “in relation to a government servant” would indicate that the categories of persons listed thereunder, such as wife, husband, judicially separated wife or husband, son or unmarried daughter who has not attained the age of twenty-five years, adopted son or daughter, etc. are sought to be brought into association with the deceased government servant. The context requires that association or connection of such persons with the deceased 19 government servant must be direct and not remote. The said Rule requires that the family member must have a close nexus with the deceased government servant, and must have been dependent on him during his lifetime. Therefore, a son or daughter adopted by the widow of a deceased government servant, after the death of the government servant, could not be included within the definition of ‘family’ under Rule 54(14)(b) of the CCS (Pension) Rules.

12. It may also be appropriate to refer to the decision of this Court in Poonamal vs. Union of India, (1985) 3 SCC 345, wherein the purpose for which ‘family pension’ is granted, was highlighted by this Court in the following words: “Family pension came to be conceptualised in the year 1950. When a Government servant die in harness or soon after retirement, in the traditional Indian family on the death of the only earning member, the widow or the minor children were not only rendered orphans but faced more often destitution and starvation. Traditionally speaking the widow was hardly in a position to obtain gainful employment. She suffered the most in as much as she was deprived of the companionship of the husband and also became economically orphaned. As a measure of socioeconomic justice family pension scheme was devise to help the widows tie over the crisis and till the minor children attain majority to extend them some succour. This appeared to be the underlying motivation in devising the family pension scheme. It was 20 liberalised from time to time. The liberalisation was however subject to the condition that the Government Servant had in his life time agreed that he shall make a contribution of an amount equal to two months' emoluments or Rs. 5,000 whichever is less out of the death-cum retirement gratuity. Those Government servants who did not accept this condition were denied the benefit of family pension scheme.” It is evident from the passage quoted above that family pension was devised as a means to help the dependents of the deceased government servant tide over the crisis and to extend to them some succour. Therefore, the definition of the term ‘family’ cannot be extended to include those persons who were not even dependents of the government servant, at the time of his death. 12.1. The cannon of construction described in the principle, Nocitur a Sociis, may be applied to the present case. The said principle posits that the meaning of a phrase must be construed having regard to the words immediately surrounding it. In the present case, the heirs listed under Rule 54(14)(b) of the CCS (Pension) Rules are the immediate dependents of the deceased government servant. Therefore, persons who were not dependant on the government servant prior to his death cannot be held to be included in the definition of ‘family’ under Rule 54(14)(b) of the CCS (Pension) Rules.

13. Further, we are unable to find favour with the argument of the learned Counsel for the Appellant that since the bar contained in Rule 54(14)(b) of the CCS (Pension) Rules against children born or adopted after retirement, seeking family pension, was removed by way of the subsequent amendments to the provision, children adopted at any time after retirement of the government servant, including children adopted by the widow of the government servant after his death ought to be included under the definition of ‘family’ for the purpose of granting family pension. The provision could not be as expansive as suggested by the learned Counsel for the Appellant. It is necessary that the scope of the benefit of family pension be restricted only to sons or daughters legally adopted by the government servant, during his/her lifetime. The definition of ‘family’ is narrowly worded under the CCS (Pension) Rules, in the specific context of the entitlement to ‘family pension’ and in relation to the government servant. Therefore, the word “adoption” in Rule 54(14)(b)(ii) of the CCS (Pension) Rules, in the context of grant of family pension, must be restricted to an adoption made by a government servant during his/her lifetime and must not be extended to a case of adoption made by a surviving spouse of the government servant after his/her death. This is because the object of the provision is to lend succour to a son till he attains the age of twenty-five years and unmarried or widowed or divorced daughter; similarly to the adopted son or unmarried adopted daughter when such an adoption had been made by the government servant during his/her lifetime.

14. Further, a case where a child is born to the deceased government servant after his death has to be contrasted with a case where a child is adopted by the widow of a government servant after his death. The former category of heirs are covered under the definition of family since such a child would be a posthumous child of the deceased government servant. The entitlement of such a posthumous child is wholly distinct from a child being adopted subsequent to the demise of the government servant by the surviving spouse. The reason for the same is not far to see. This is because the deceased government servant would have had no relationship with the adopted child which would have been adopted subsequent to his demise, as opposed to a posthumous child. Therefore, the definition of the word “family” in relation to a government servant means various categories of persons coming within the nomenclature of the word “family” and all persons who would have had a familial relationship with the government servant during his lifetime. Any other interpretation would lead to abuse of the provision in the matter of grant of family pension. 23 15. It is also observed that the decision of this Court in Vijayalakshmamma would not aid the case of the Appellant. The said case is inapplicable to the facts of the present case for the reason that the said case pertains to the right of a widow to adopt and the right of inheritance of a child so adopted. The present case is concerned only with the definition of ‘family’ under the CCS (Pension) Rules. The said definition is a restrictive and specific one and cannot be expanded to take within its sweep, all heirs, as provided under Hindu law, or other personal laws. It is trite that in construing a word in a statute, caution has to be exercised in adopting a meaning ascribed to that word or concept in another statute.

16. In light of the reasons assigned hereinabove, the present appeal is liable to be dismissed and is, accordingly, dismissed. The judgment of the High Court of Judicature at Bombay, dated 30th November, 2015, is hereby affirmed. Parties to bear their respective costs.

….…………………………..J. (K.M. JOSEPH)

….…………………………..J. (B.V. NAGARATHNA)

NEW DELHI;

17 JANUARY, 2023