Anshuman Singh, J. - (1.) BY means of this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for issuance of a writ of mandamus to the respondent to pay the petitioner family pension that she is entitled to from the date of death of her husband i.e. on June 13 1973 and continued to pay the same to the petitioner during her life time every month, The facts giving rise to the instant writ petition under Article 226 of Constitution briefly stated lies in narrow compass.
(2.) THE petitioners' husband late Mr. Justice C.B. Agarwala was appointed as a Judge of the Allahabad High Court on May 14, 1948. After serving as a Judge for about 9 years be retired on March 18, 1957 and he died on June 13 1973. The petitioner is the widow of the deceased late Mr. Justice C.B. Agarwala. The petitioner was never paid family pension by the respondent which was payable, according to her, after the death of her husband. Since the respondents were not paying family pension, she approached to this court by way of filing the present writ petition in which a prayer was made that the respondent may be directed to pay the petitioner's family pension from June 14, 1973 i.e. the next date succeeding to the death of her husband and should further be directed to pay the same during her life time every month. This petition was presented on April 25, 1985. On the said date learned Senior Standing Counsel, Government of India was granted a months time for filing a counter affidavit and the petitioner was required to file rejoinder affidavit within a period of one month thereafter. It was also agreed by the counsel for the parties that after the affidavits were exchanged, the writ petition should be finally disposed of at the stage of admission itself. The case was listed before a Division Bench of this court on August, 14 1985. Since, no counter affidavit was filed on behalf of the respondent, the Bench who was seized of the matter was pleased to issue an interim mandamus to the respondents to pay family pension to the petitioner within one month or to show cause and the petition was ordered to be listed for orders after one month. A statement has been made before us by Mr. B. Dayal, learned counsel for the petitioner that after issuance of the interim mandamus the respondent started paying family pension to the petitioner. Subsequently, it appears that a letter dated January 31, 1986 and February 4, 1986 was sent to the petitioner by Mr. M. Chatterjee, Senior Deputy Accountant General, II (Account) U.P. Allahabad informing her that the family pension was admissible to her w.e.f. September 1977. In the same letter, it was also mentioned that in case any family pension for the period October 21, 1972 was drawn by the petitioner, the same may be refunded. It has been stated before us that since the pension which was paid to the petitioner in pursuance of the interim mandamus issued by this court was not refunded by her the respondent would stop further payment to her. Thereupon, the petitioner filed a supplementary affidavit annexing therein the letter dated January 31, 1946 and February 4, 1986 (annexure S.A. 1) and prayed for quashing of the said letter. Mr. D.P. Singh, learned Additional Standing Counsel for the Union of India has prayed that he should be granted further time to file a counter affidavit to the main writ petition as well as the supplementary affidavit. In view of the fact that the Senior standing counsel was granted time on April 25, 1982 more than three years have elapsed and the respondent has not saken care to file the counter affidavit till to day, we, therefore, are not inclined to accede to the request made on behalf of the Union of India for grant of further time and we proposed to dispose of the writ petition in the absence of the counter affidavit filed on behalf of the respondent.
(3.) WE have heard Sri B. Dayal, learned counsel appearing for the petitioner and Sri D.P. Singh, learned Additional Standing counsel appearing for the Union of India.;