SHISHIR KUMAR, J. - (1.) THE present writ petition has been filed for issuing a writ of certiorari quashing the order dated 9 -10.1.1992 passed by the respondent No.4 rejecting the claim for family pension. Further prayer is for issuing a writ in the nature of mandamus commanding the respondents to pay the family pension to Ashutosh Nath Sahai, adopted son of late Sri P.N. Sahai and for issuing a writ in the nature of certiorari quashing and strike down the Government Order dated 23.7.1975 (Annexure 2 filed by the respondents).
(2.) THE brief facts of the present writ petition are that the petitioner, who claims to be legal guardian of one Sri Ashutosh Nath Sahai has filed the present petition for receiving the amount of family pension and the benefits of Sri P.N. Sahai, who retired as Sub -Station Attendant, working at Allahabad Electricity Supply Undertaking, Allahabad. A copy of the appointment of Sri Ashutosh Kumar Sahai has been filed as Annexure -1 to the writ petition. Late Sri P.N. Sahai lost his wife and children before his retirement. Due to his bad health, he 'sought his voluntary retirement from service, which was sanctioned from 31.7.1984. On 29.5.1985 Sri P.N. Sahai has adopted one Ashutosh Nath Sahai to look after him. A copy of the adoption deed issued by the competent authority has been filed as Annexure 2 to the writ petition. At the time of adoption Sri Ashutosh Nath Sahai opted his pension after retirement and has also submitted the adoption deed for authorizing Family Pension along with the pension papers duly recommended by the respondent No.3. The pension was sanctioned without sanctioning the family pension to Sri Ashutosh Nath Sahai adopted son and the matter was referred to by the respondent No.3 to the respondent No.2 vide letter dated 5.2.1988. The respondent No.2 replied vide its letter dated 24.3.1988 to the Pension Department. Subsequently, the respondent No.2 in his reply dated 24.3.1988 while accepting the claim of Sri P.N. Sahai, put two conditions to be fulfilled. (A) It shall be authorized after the death of Sri P.N. Sahai (B) It will be authorized to the legal guardian of Ashutosh Nath Sahai being a minor. The pensioner died on 8.12.1990 and thereafter the petitioner applied to the District Judge, Allahabad, for appointment* as legal guardian of Sri Ashutosh Nath Sahai for the purposes of receiving the family pension from the respondent No.3. The certificate was granted in favour of the petitioner and an application was made to the Accounts Officer, U.P. State Electricity Board enclosing the documents and authorization for the purposes of family pension in favour of the minor son of Sri P.R. Sahai. The claim of the petitioner was rejected for payment of family pension vide letter dated 9.1.1992 stating therein that the family pension includes the adopted minor son only if he has been adopted legally before the retirement. In view of the Government Orders dated 23.7.1975 and 26.11.1987 as Sri P.N. Sahai was retired on 31.7.1984 and he had adopted Ashutosh Nath Sahai on 29.5.1995, after the retirement, as such he is not entitled for family pension.
(3.) IT has been submitted on behalf of the petitioner, that the order rejecting the claim is against the principle of natural justice as no opportunity to that effect has been given to the petitioner. The further averment has been made that the Apex Court has already adjudicated the matter in Smt. Bhagwati v. Union of India reported in 1989, Supreme Court Page -2890. The Apex Court has held that benefit of family pension cannot be denied after the death of the pensioner to the legally married' wife after the retirement. The earlier provision in rules regarding admissibility of family pension was only to the extent that the wife of a Government servant married before retirement and the child born before the retirement is arbary and discriminatory, as such the Supreme Court has held otherwise. It has been submitted that the Apex Court in the aforesaid case has laid down that marriage after retirement of the government servant does not bar either of the spouse to sanction the family pension under the Rules. No discrimination is permissible between the family of the government servant within service and a family acquired after retirement. Therefore, similarly, the children born out of wedlock after the retirement will also be entitled for family pension. Sri P.N. Sahai adopted the son because he lost his eyesight and he was not able to move freely without any support and he has lost his wife and children long ago. The case of the petitioner is fully covered by principle of promissory estoppels.;