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PETITIONER: SMT. BHAGWANTI AND ANR.

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT29/08/1989

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH OZA, G.L. (J)

CITATION:  1989 AIR 2088            1989 SCR  (3)1010  1989 SCC  (4) 397        JT 1989 (3)   545  1989 SCALE  (2)377

ACT:     Central   Civil  Services  (Pension)  Rules   1972--Rule 54(14)(b)-’Family’--Definition of--Clauses (i) and (ii) held ultra  vires Article 14--Spouses who get married  after  re- tirement  of Government servant-Children born after  retire- ment--Whether entitled to family pension.     Constitution of India-Article 14---Rule 54(14)(b)(i) and (ii)Central  Civil  Services  (Pension)  Rules--Held   ultra vires.

HEADNOTE:     These  two Writ Petitions have been filed by the  widows of the pensioners viz. Smt. Bhagwati and Smt. Sharda  Swamy, as they have been refused family pension after the demise of their husbands.     Smt.  Bhagwanti  is the widow of an  Ex-Subedar  of  the Indian  Army  who  retired after serving  for  18  years  on 3.8.1947. He was given pension. In 1955 his wife died and in 1965 he married the petitioner. The Subedar died in  Septem- ber  1985 in an accident. The Petitioner Smt. Bhagwanti  who has  two minor children applied for family pension  but  the same was not granted to her.     The  other Petitioner Smt. Sharda Swamy is the  wife  of the  retired  railway employee. Her husband  took  voluntary retirement  at  the age of 44 years in  November  1979.  The Petitioner  married her deceased husband in 1981 and  has  a daughter  born to her in 1984. Petitioner’s husband died  in 1986.  The petitioner applied for a family pension but by  a letter dated 3.8.1988, she was informed that her application has  been  rejected. It was stated therein that it  has  not been found possible to include wife of a Government  Servant who  had  married after retirement in the definition  of  ’’ family" for grant of family pension.     In the counter affidavits filed on behalf of the  Union, the  stand taken in the first case is that the  pension  has been refused as the marriage was after retirement and in the other  case the Union relied on the definition  of  "family" occurring  in Rule 54(14)(b) of the Central  Civil  Services (Pension)  Rules 1972, which speaks of marriage  before  re- tirement. 1011

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   The common stand taken thus by the Union is that  family pension  would not be admissible to spouses who get  married after the retirement of the Government servant nor to  chil- dren born after retirement. Allowing the Writ Petitions this Court     HELD:  Pension  is payable, as pointed  out  in  several Judgments of this Court, on the consideration of past  serv- ice  rendered by the Government servant. Payability  of  the family pension is basically on the self-same  consideration. Since  pension  is linked with past service and  the  avowed purpose of the Pension Rules is to provide sustenance in old age,  distinction between marriage during service  and  mar- riage  after  retirement  appears to  be  indeed  arbitrary. [101411-1015B]     Admittedly,  the  definition of "family"  as  it  stands after amendment excludes the spouse of the Government  serv- ant  who  has got married to such Government  servant  after his/her  retirement and the children born  after  retirement also stand excluded. [1014F]     In  most  cases, marriage after retirement  is  done  to provide  protection,  secure  companionship  and  to  secure support in old age. [1015C]     The consideration upon which pension proper is  admissi- ble  or the benefit of the family pension has been  extended do  not justify the distinction envisaged in the  definition of  "family"  by keeping the postretiral spouse out  of  it. [1015D]     The  two limitations incorporated in the  definition  of "family" suffer from the vice of arbitrariness and discrimi- nation and cannot be supported by nexus or reasonable  clas- sification. [1016D]     The  words  "provided  the marriage  took  place  before retirement of the Government servant" in clause (i) and "but shall not include son or daughter born after retirement"  in clause (ii) are thus ultra vires Article 14 of the Constitu- tion and cannot be sustained. [1016E]     D.S. Nakara & Ors. v. Union of India, [1983] 2 SCR  165; Deoki Nanaan Prasad v. State of Bihar & Ors., [1971]  Suppl. SCR  634; Smt. Poonamal v. Union of India & Ors.,  [1985]  3 SCR 1042; referred to.

JUDGMENT:     ORIGINAL JURISDICTION: Writ Petition Nos. 1128 and  1204 of 1988, 1012               (Under  Article  32  of  the  Constitution  of               India).               Mrs. S. Ramachandran for the Petitioners.                   V.C.  Mahajan, Ms. A. Subhashini  and  Ms.               Kusum Chaudhary               for the Respondents.               The Judgment of the Court was delivered by     RANGANATH  MISRA,  J. Each of these two  writ  petitions under Article 32 of the Constitution is by the widow of  the respective pensioners. Since family pension under the  Rules has  not been given to them, they have asked for a  mandamus to  the respondent-Union of India to grant such  pension  in terms  of the pension scheme applicable to the  category  to which the husbands of the respective petitioners belonged.     Petitioner Smt. Bhagwanti is the widow of an  ex-Subedar of  the Indian Army. Her husband after serving for 18  years retired on 3.8.1947 and was given pension. In 1955, his wife died  and  in  1965 he was married to  the  petitioner.  The

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Subedar  died in September, 1985 in an accident.  Petitioner who  has two minor children applied for family  pension  and the same has not been granted.     The  petitioner  in the connected writ petition  is  the wife of a retired Railway employee. Her husband took  volun- tary  retirement at the age of 44 in November,  1979.  Peti- tioner got married to her husband in 1981 and has a daughter born  in 1984 out of the said wedlock. Petitioner’s  husband died in 1986. The petitioner applied for family pension  but by  a letter dated 3rd of August, 1988, her application  was rejected  by  saying:  ’It has not been  found  possible  to include  wife of a Government servant who had married  after retirement in the definition of ’family’ for grant of family pension’.     Counter-affidavits  have  been filed in  both  the  writ petitions. In the first case, in the return made by  Captain N.K. Vishwakarma from the Office of Records AMC, Lucknow  in paragraph  A, it has been stated that pension has  been  re- fused  as petitioner’s marriage was after retirement of  the Subedar.  In  the  connected matter,  the  Senior  Personnel Manager of the South-Central Railway has placed reliance  on the  definition of ’family’ occurring in Rule  54(14)(b)  of the Central Civil Services (Pension) Rules, 1972. As far  as relevant, the definition reads thus: 1013               "(b).  ’Family’  in relation to  a  Government               servant means--                        (i)  wife in the case of a male  Gov-               ernment  servant, Or husband in the case of  a               female  Government servant, provided the  mar-               riage  took  place before  retirement  of  the               Government servant.                ................................................... ........                        (ii) son who has not attained the age               of twenty-one years and unmarried daughter who               has  not  attained the age  of  thirty  years,               including such son and daughter adopted legal-               ly before retirement but shall not include son               or daughter born after retirement."     The common stand of the Union of India in the two cases, therefore, is that family pension would not be admissible to spouses who get married after the retirement of the  Govern- ment servant, nor to children born after such retirement.     The  only question for consideration in these  two  writ petitions  therefore,  has  two  facets:  (i)  whether   the spouse--man or woman, as the case may be--married after  the retirement  of the concerned Government servant can be  kept out of the definition so as to deprive him from the  benefit of  the  family pension, and (ii) whether  off-springs  born after retirement are entitled to benefits of such pension.     In  D.S. Nakara & Ors. v. Union of India, [1983]  2  SCR 165,  a  Constitution Bench of this Court at p. 185  of  the Reports observed:               "  .........  pension is not only compensation               for  loyal service rendered in the  past,  but               pension  also has a broader  significance,  in               that it is a measure of socio-economic justice               which inheres economic security in the fall of               life  when  physical  and  mental  prowess  is               ebbing  corresponding  to aging  process  and,               therefore,  one  is required to fall  back  on               savings.  One such saving in kind is when  you               gave your best in the hey-day of life to  your               employer,  in  days  of  invalidity,  economic

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             security  by  way  of  periodical  payment  is               assured. The term has been judicially  defined               as  a  stated  allowance or  stipend  made  in               consideration  of past service or a  surrender               of rights or emoluments to one retired from               1014               service-  Thus  the pension payable  to  be  a               Government  employee  is earned  by  rendering               long and efficient service and, therefore, can               be  said to be a deferred portion of the  com-               pensation  or  for service  rendered.  In  one               sentence  one can say that the most  practical               raison detre for pension,, is the inability to               provide for oneself due to old age  ...... In  Deoki  Nandan Prasad v. State of Bihar  &  Ors.,  [1971] Suppl. SCR 634, it was held by this Court:               "The  payment of pension does not depend  upon               the  discretion of the Government but is  gov-               erned  by the relevant rules and anyone  enti-               tled to the pension under the rules can  claim               it as a matter of right." In  Smt.  Poonamal v. Union of India & Ors.,  [1985]  3  SCR 1042, it was pointed out:               "Where  the Government servant rendered  serv-               ice,  to  compensate which  a  family  pension               scheme is devised, the widow and the dependent               minors  would  equally be entitled  to  family               pension as a matter of right. In fact we  look               upon  pension not merely as a statutory  right               but  as  the fulfilment  of  a  constitutional               promise in as much as it partakes the  charac-               ter of public assistance in cases of unemploy-               ment,  old-age, disablement or  similar  other               cases  of  undeserved  want.  Relevant   rules               merely   make  effective  the   constitutional               mandate.  That is how pension has been  looked               upon in D.S. Nakara’s judgment."      Admittedly,  the  definition of ’family’ as  it  stands after amendment excludes that scope of the Government  serv- ant  who  has got married to such Government  servant  after his/her  retirement and the children born  after  retirement also  stand excluded. Petitioners have challenged the  stand of  the  Union of India and the definition  in  the  Pension Rules as arbitrary and discriminatory- It has been contended that  if family pension is payable to the widow or the  hus- band  as  the case may be, of the  Government  servant,  the category  which the definition keeps out, namely, those  who have  married  after retirement and  offsprings  of  regular marriage born after retirement, is discriminatory. Pension  is payable, as pointed out in several judgments  of this 1015 Court, on the consideration of past service rendered by  the Government  servant.  Payability of the  family  pension  is basically  on the self same consideration. Since pension  is linked  with  past  service and the avowed  purpose  of  the Pension Rules is to provide sustenance in old age,  distinc- tion  between  marriage during service  and  marriage  after retirement  appears  to be indeed arbitrary. There  are  in- stances  where  a  Government servant  contracts  his  first marriage  after  retirement. In these two cases  before  us, retirement had been at an early age. In the Subedar’s  case, he had retired after putting in 18 years of service and  the Railway  employee had retired prematurely at the age of  44. Premature  or early retirement has indeed no  relevance  for

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deciding the point at issue. It is not the case of the Union of India and, perhaps there would have been no force in such contention  if raised, that family pension is admissible  on account  of  the  fact that the spouse  contributed  to  the efficiency  of  the Government servant  during  his  service career. In most cases, marriage after retirement is done  to provide  protection,  secure  companionship  and  to  secure support  in  old age. The consideration upon  which  pension proper  is admissible or the benefit of the  family  pension has  been extended do not justify the distinction  envisaged in  the  definition of ’family’ by keeping  the  postretiral spouse out of it.     Government  Servants  Conduct  Rules  prohibit  marriage during the life-time of a spouse. Section 494 of the  Indian Penal Code makes second marriage void and makes it a  crimi- nal  offence.  Thereafter, both before retirement  and  even after  retirement there is no scope for a person to  have  a second  wife  or a husband. as the case may be,  during  the life-time of an existing spouse.     Reliance  has been placed on the recommendations of  the Third Pay Commission on the basis of which the amendment  in the  Pension  Rules is said to have been  made.  Apart  from referring  to the recommendations, no attempt has been  made at  the hearing by counsel for the Union of India to  derive support from the recommendations. We really see no  justifi- cation as to why post-retirement marriages should have  been kept out of the purview of the definition.     In  clause (ii) of the definition son or  daughter  born after  retirement  even out of wedlock prior  to  retirement have been excluded from the definition. No plausible  expla- nation has been placed for our consideration for this exclu- sion.  The purpose for which family pension is provided,  as indicated in Smt. Poonamal’s case, is frustrated if children born after retirement are excluded from the benefit of the 1016 family  pension.  Prospect of children being  born  at  such advanced  age (keeping the age of normal  superannuation  in view) is minimal but for the few that may be born after  the retirement, family pension would be most necessary as in the absence  thereof,. in the event of death of  the  Government servant  such minor children would go without  support.  The social  purpose which was noticed in some pension  cases  by this Court would not justify the stand taken by the Union of India  in the counter-affidavit. It is not the case  of  the Union  Government that as a matter of public policy to  con- tain  the growth of population, the definition has  been  so modified.  Even  if such a contention had been  advanced  it would  not  have stood logical scrutiny on  account  of  the position that the Government servant may not have any  child prior  to  retirement  and in view of  the  accepted  public policy that a couple could have children upto two, the  only child born after superannuation should not be denied  family pension.     Considered  from any angle, we are of the view that  the two  limitations incorporated in the definition of  ’family’ suffer from the vice of arbitrariness and discrimination and cannot  be supported by nexus or reasonable  classification. The  Words ’provided the marriage took place before  retire- ment of the Government servant’ in clause (i) and ’but shall not include son or daughter born after retirement’ in clause (ii) are thus ultra vires Article 14 of the Constitution and cannot be sustained.     The writ petitions are allowed. The respondent Union  of India shall have a direction to extend to each of the  peti- tioners in the two writ petitions family pension as admissi-

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ble  under the respective schemes from the date the  husband of each of petitioners died.     Since these writ petitions were instituted on the  basis of  letters  received  by the Court and  treated  as  public interest litigation and were supported by the Supreme  Court Legal Aid Committee through their counsel, there shall be no order as to costs. Y. Lal                       Petitions allowed. 1017