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PETITIONER: SMT. J.S. RUKMANI ETC.

       Vs.

RESPONDENT: GOVERNMENT OF TAMIL NADU AND ORS.

DATE OF JUDGMENT17/10/1984

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. SEN, AMARENDRA NATH (J) MISRA RANGNATH

CITATION:  1985 AIR  785            1985 SCR  (1) 992  1984 SCC  Supl.  650     1985 SCALE  (1)229

ACT:      Constitution of India 1950 Article 14      Family   Pension-Grant    of-State   Government   order confining  benefit   to  family  of  only  those  government servants who  last served  at a  place  falling  within  the present State  of Tamil  Nadu-Whether  unconstitutional  and void.      States Reorganisation  Act 1956 Section 86-Liability of an existing State in respect of pension-what is-Liability to be under an existing provision of law.      Tamil Nadu  New Family  Pension Rules 1964 Notification dated May  26. 1979 and Government Order MS/63 Finance dated March 18 1982.      Family  Pension-Benefit   of  Government  servant  last served at  a place  which became  part of  Kerala  State  on reorganisation of  State of Madras-Widow whether entitled to family pension.      Word and  Phrases the  liability of the existing State- Meaning of-Section 86 States Reorganisation Act 1956.

HEADNOTE:      The State  of Tamil  Nadu introduced New Family Pension Rules, 1964  granting benefit  of pension to the family of a government servant  on  his  death,  but  this  benefit  was confined  only  to  the  members  of  the  family  of  those government servants  who retired  prior to  1st April, 1964. Later by  a Notification dated 26th May, 1979 the benefit of family pension  was extended to the members of the family of government servants  who retired  prior to  1st April, 1964. However, by  G.O. MS/63  Finance dated 18th March; 1982, the Government clarified  that if  the place of retirement of an employee or  the place where be was last serving at the time of death  while in service, did not form part of the present State of Tamil Nadu, the widow of such employee would not be entitled  to   the  benefit  of  family  pension  under  the Notification dated 26th May, 1979.      The petitioner  in her  letter addressed to this Court, complained that  though she  was the widow of an employee of the former State of Madras, 993 who retired  before the  re-organisation of  the State under

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the States  Reorganisation Act 1956, she was not being given the benefit  of family  pension under the Notification dated 26th May,  1979.  She  further  alleged  that  she  made  an application to  the former  State of  Madras  for  grant  of family pension  at the  rate of  Rs.  100  per  month  under Paragraph 7  of the  Notification dated  26th May, 1979, and the State Government sanctioned payment of family pension of Rs. 100 by letter dated 22nd November, 1981 with effect from 1st April, 1979. This amount was paid 13 for about 6 months, but by  another  letter  dated  20th  April,  1982  she  was informed that  she was  not entitled  to the grant of family pension under G.O. MS/63 (Finance) dated 18th March, 1982 as her husband  had served  in Cannanore  at the  time  of  his retirement and that Cannanore did not presently form part of the present State of Tamil Nadu. The petitioner’s letter was converted into a writ petition and notice was issued to both the State Governments of Tamil Nadu and Kerala.      The State Government of Tamil Nadu contended that under section  86  of  the  State  Reorganisation  Act  1956,  the liability of  the existing  States  in  respect  of  pension passes to  or is  apportioned between the successor State or States in  accordance  with  the  provisions  of  the  Fifth Schedule to  the Act,  and  that  the  petitioner  would  be excluded from  the benefit  of the  family pension since the place where her husband served at the time of superannuation became part of States other that the State of Tamil Nadu.      Allowing the Writ Petitions ^      HELD: 1.  (i) The  State of Tamil Nadu is liable to pay to the  petitioners in  these four writ petitions as also to the widows  of  other  government  servants  falling  within Paragraph 7  of the Notification dated 26th May, 1979 family pension at  the rate  of Rs.  100 per month with effect from 1st April, 1979. [1002 B-C]      (ii) A Writ is issued directing the State of Tamil Nadu to pay  arrears of  family pension calculated at the rate of Rs. 100  per month  from 1st April, 1979 after deducting tho amount, if any, already paid by the States of Tamil Nadu and Kerala to  the petitioners  in terms  of the interim orders. The State of Kerala would not be entitled to claim refund of any payment  made  nor  reimbursement  in  respect  of  such payment from the State of Tamil Nadu. [1002 C-D]      2. The  object of  granting family  pension  under  the Notification dated  26th May, 1979 is obviously to alleviate the economic  distress of  widows and  other members  of the family of  Government servants  who retired after faithfully serving the  State of  Madras as also the successor State of Tamil Nadu  and who  subsequently died  leaving  widows  and other members of the family. [1001 D]      3. The  object of the Notification dated 26th May, 1979 does not warrant any such distinction to be made between the widows of one class of government servants and the widows of another class merely on the 994 basis of  the place where the government servant last served at the  time of  superannuation, although  in both cases the government servant served the same State, namely, the former State of  Madras and superannuated before the reorganisation of the States. [1001 G-H]      4. The restrictive limitation imposed by the Government order dated 18th March, 1982 confining the benefit of family pension to the members of only those government servants who last served at a place falling within the territories of the successor State  of Tamil Nadu is violative of Article 14 of the Constitution  and hence unconstitutional and void. [1001

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H, 1002 A]      5. On a plain grammatical construction of Section 86 of the States  Reorganisation Act,  1956 the  liability  of  an existing State  in respect  of pension which passes to or is apportionable between  the  successor  State  or  States  in accordance with  the provisions  of the  Fifth Schedule is a liability in  respect of  pension under an existing law. The liability may  be in  presenti or  it may  be a liability to arise in future but it must be a liability under an existing provision of  law and  it is that liability which is to pass on or be apportionable between the Successor State or States in accordance  with the  provisions contained  in the  Fifth Schedule. [999 C-D]      6. Section  86 could  not possibly be intended to refer to a  liability which  may  subsequently  be  created  by  a provision of  law which  may be  enacted in  future  by  any particular  State.   The  words  of  the  Section  are  "the liability of  the existing  States". It  must therefore be a liability of  an existing  State and  not a  liability of  a successor State  which may  come into being as a result of a future legislation passed by that State. [999 E-F]

JUDGMENT:      ORIGINAL JURISDICTION  . Writ  Petitions  (Civil)  Nos. 6756, 6806, 8483, 4309 and 9179 of 1982.      (Under article 32 of the Constitution of India)      S. Rangarajan,  K.R. Nagaraja,  P.K. Rao and B. Krishna Prasad for the Petitioners.      Petitioner in person in Writ Petition No. 9179 of 1982.      K.G. Bhagat,  Additional Solicitor General, A.V. Rangam and Miss A. Subhashini for the respondents.      M. M.  Abdul Khader and P.K. Pillai for the respondents in Writ Petition No. 9179 of 1982.      The Judgment of the Court was delivered by      BHAGWATI,  J.  These  writ  petitions  raise  a  common question of  law relating  to the  liability of the State of Tamil Nadu for payment 995 of family  pension to  widows of  employees who  were in the service of  the former  State of Madras and who retired from service before  reorganisation of  States under  the  States Reorganisation Act,  1956. The  facts giving  rise to  these writ petitions are almost identical and it will therefore be enough if  we state  the facts  of only  one writ  petition, namely, Writ Petition No. 4309 of 1982.      This writ  petition came to be initiated as a result of a  letter   addressed  to   this  Court  by  the  petitioner complaining that  though she was the widow of an employee of the  former   State  of   Madras,  who  retired  before  the reorganisation of the States under the States Reorganisation Act 1956,  she was  not being  given the  benefit of  family pension which was granted by the State of Tamil Nadu under a Notification  dated  26th  May,  1979.  The  letter  of  the petitioner was  treated as  a writ  petition and  notice was issued to the State of Tamil Nadu and since it appeared that the State  of Tamil  Nadu was disputing its liability to pay family pension  to the  petitioner on  the ground  that  the deceased husband  of the petitioner was serving in Cannanore at the  time of  his retirement  and that  Cannanore  having become part  of the  State of  Kerala as  a  result  of  the provisions of  the States Reorganisation Act 1956 it was the State of  Kerala which  was liable to pay family pension, if at all,  to the  petitioner, the Court also joined the State

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of Kerala  as a  respondent to  the writ petition and issued notice to  the State of Kerala. It was common ground between the parties  that the  husband of  the petitioner was in the employment of  the former State of Madras and was serving as Deputy Inspector  of Schools until 19th August, 1954 when he retired from  service on  superannuation. The place where he served last  as Deputy Inspector of Schools was Cannaore and after his retirement, he settled down in his ancestral house in  village   Kunniseri  in   Palghat  District   which  was originally part  of the  Former State of Madras but which on the reorganisation of the States came to belong to the State of Kerala.  The husband  of the petitioner was, for the sake of convenience,  drawing his  pension from  the nearest Sub- Treasury in  Palghat until his death which occurred in July, 1963.      It appears  that the State of Tamil Nadu introduced New Family Pension Rules 1964 granting benefit of pension to the family of a government servant on his death but this benefit was confined  only to  the members  of the  family of  those government servants  who retired  from and  after 1st April, 1964. The  question of extending this benefit to the members of the  family of  government servants  who retired prior to 1st April, 1964 was considered by the Third 996 Tamil Nadu  Pay Commission  and in it recommended "extension of the  family pension  benefits  to  the  families  of  the government servants  who retired  prior to 1st April, 1964". Pursuant to this recommendation made by the Third Tamil Nadu Pay  Commission,   the  State   of  Tamil  Nadu  issued  the Notification dated  26th May,  1979 extending the benefit of family pension  to the  members of  the family of government servants who  retired prior  to 1st April, ]964. Paragraph 7 of this  Notification  is  material  and  we  may  therefore reproduce it in extenso:      7.   Employees not  covered by  the New  Family Pension           Rules,  1964,   fall  under  the  following  three           categories:-                (i) those who are still in service,                (ii) those who have retired and are alive,                     and                (iii) those who have died.      (a)  Considering  the   hardship  to  the  families  of           employees not  covered by  the New  Family Pension           Rules, 1964, the Government direct that the family           of an  employee belonging  to any  of these  three           categories and  having completed at least a year’s           service be  sanctioned, on  death of the employee,           family pension  at a  flat rate  of  Rs.  100  per           month. Families of employees who have already died           will be  sanctioned family  pension at  this  flat           rate of Rs. 100 per month with effect from the 1st           April, 1979.      (b)   A person  in receipt  of family pension under the           old Rules  shall have  the option to retain it, if           it is  found to  be more  advantageous  that  what           would be  available under (a) above. In this case,           such family  pension and  the  Dearness  Allowance           thereon immediately  before the  coming into force           of these  orders shall  be taken  together and the           sum  total   of  these  amounts  shall  henceforth           constitute the family pension      The  contention   of  the   petitioner  based  on  this paragraph of  the Notification dated 26th May, 1979 was that she was  entitled to  family pension  at the rate of Rs. 100 per month with effect from 1st April, 1979 since her husband

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was an  employee of  the former  State  of  Madras  and  had retired prior  to 1st April, 1964 and subsequently died. The petitioner made an application to the Secretary to the Govt. of Tamil Nadu on 5th July, 1981 for grant of family pension 997 at the  rate of  Rs. 100  per month under Paragraph 7 of the Notification dated  26th May,  1979 and on this application, the Govt.  of Tamil Nadu intimated to the petitioner through a letter  dated 22nd  November, 1981  addressed by the Joint Director of Schools Education that the family pension of Rs. 100 per  month was  sanctioned to the petitioner with effect from 1st  April, 1979.  The petitioner  was accordingly paid family pension  at the  rate of  Rs. 100/-  per month  for a period of about 6 months. Surprisingly, on 20th April, 1982, the Under  Secretary to  the Govt. of Tamil Nadu addressed a letter  to   the  petitioner   stating  that   because   the petitioner’s husband last served in Connanore at the time of his retirement  and Cannanore  does not now form part of the present State of Tamil Nadu, the petitioner was not entitled to the  grant of  family  pension  under  the  clarification issued by the Govt of Tamil Nadu in its G.O. MS/63 (Finance) dated 18th  March, 1982. This Notification sought to clarify that if  the place of retirement of an employee or the place where he  was last serving at the time of his death while in service, did  not form  part of  the present  State of Tamil Nadu, the  widow of  such employee  would not be entitled to the benefit  of family  pension under the Notification dated 26th May, 1979 and it was on the basis of this clarification that the family pension which was being paid by the State of Tamil Nadu  to the petitioner was discontinued by the letter dated 20th  April, 1982.  The petitioner  being obviously  a woman without  any means, it was not possible for her to get relief by  filing a  regular writ petition and she therefore sought  to   involve  the  jurisdiction  of  this  Court  by addressing a  letter complaining  of discrimination  against her and  praying that  family pension at the rate of Rs. 100 per month  should be directed to be paid to her by the State of Tamil Nadu under the Notification dated 26th May, 1979.      The State  of Tamil  Nadu as  also the  State of Kerala appeared in  answer to  the notice  issued by  the Court and each tried  to throw  the responsibility  for payment of the family pension  on the  other, without  disputing  that  the amount of  family pension  was payable to the petitioner but only raising the question as to who should be made liable to pay the  same. Since  the hearing  of this  writ petition as also  the   other  three  writ  petitions  filed  by  widows similarly circumstanced  was  likely  to  take  sometime  in reaching hearing,  the Court made an interim order directing each of  the States of Tamil Nadu and Kerala to pay a sum of Rs. 50 per month to the petitioner as also to the widows who had moved  the other three writ petitions in order to enable them to  survive. On  these facts,  the question which falls for 998 consideration is  as to  which State  is liable  to pay  the amount of  family pension  to the  petitioner, the  State of Tamil Nadu or the State of Kerala.      Now one  position is  clear namely that the petitioners cannot claim  any family  pension under  the Kerala  Pension Rules since  the Kerala  Pension Rules  admittedly on  their terms apply only in cases of government servants who retired from and  after 1st  April, 1964  while the  husband of  the petitioner  retired  in  August,  1954  and  the  respective husbands  of   the  petitioners  in  the  other  three  writ petitions also  retired before  31st August, 1964. Moreover,

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the husband  of the petitioner was at no time an employee of the State  of Kerala  which comes into being on 1st October, 1956 under  the States  Reorganisation Act,  1956  since  he retired from  service long  before that  date and  obviously therefore the  petitioner could not claim any family pension from the  State of  Kerala under  the Kerala  Family Pension Rules. The  same position  obtained also  in regard  to  the respective husbands  of the  petitioners in  the other three writ petitions.  The only question which therefore calls for consideration is as to whether the petitioners in these four writ petitions  are entitled  to claim  family pension under the Notification  dated 26th  May, 1979  and if  so, whether they are  entitled to  claim such  family pension  from  the State of Tamil Nadu or from the State of Kerala. The learned Additional Solicitor  General appearing  on  behalf  of  the State of  Tamil Nadu placed strong reliance on Section 86 of the States  Re-organisation Act,  1956 read  with the  Fifth Schedule of that Act. Section 86 reads as follows: Section 86: Pensions:           The liability of the existing States in respect of           pensions shall  pass to,  or apportioned  between,           the  successor   States  in  accordance  with  the           provisions contained in the Fifth Schedule.      The Fifth  Schedule consists of 5 paragraphs but we ale concerned only  with paragraphs  1 and  3 which  are in  the following terms:      "1.   Subject to the adjustments mentioned in paragraph           3, the  successor State  or each  of the Successor           States  shall,  in  respect  of  pensions  granted           before the appointed day by an existing State, pay           the pensions drawn in its treasuries. 999      3.    In any case where there are two or more successor           States, there shall be computed, in respect of the           period commencing  on the appointed day and ending           on the  31st day  of March, 1957 and in respect of           each subsequent financial year, the total payments           made in all the successor States in respect of the           pensions referred  to in  paragraphs 1 and 2. That           total representing  the liability  of the existing           State in  respect of pensions shall be apportioned           between the  successor States  in  the  population           ratio and any successor State paying more than its           due share shall be reimbursed the excess amount by           the successor State or States paying less."      It is  obvious on  a plain  grammatical construction of Section 86  that the  liability  of  an  existing  State  in respect of  pension which  passes  to  or  is  apportionable between the successor State or States in accordance with the provisions of  the Fifth  Schedule is a liability in respect of pension  under an  existing law.  The liability may be in persenti or it may be a liability to arise in future, but it must be  a liability  under an existing provision of law and it is that liability which is to pass to or be apportionable between the successor State or States in accordance with the provisions contained in the Fifth Schedule. Section 86 could not possibly  be intended  to refer to a liability which may subsequently be  created by  a provision of law which may be enacted in  future by any particular State. The words of the Section are  "the liability of the existing States". It must therefore be  a liability  of an  existing State  and not  a liability of  a successor State which may come into being as a result  of a  future legislation  passed by that State. If the construction  canvassed on  behalf of the State of Tamil Nadu were  accepted, it  would  lead  to  startling  result,

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namely, that  a  successor  State  by  enacting  legislation creating a  liability for  pension would  be able to pass on that liability  to the  other successor  State  which  could never have been intended by the legislature. This view which we are  taking is  reinforced by  Paragraphs 1  and 3 of the Fifth Schedule.  Paragraph 1  on its  plain terms  refers to "pensions granted  before the  appointed date by an existing State". It  applies only  in respect  of a  pension which is granted before  1st October,  1956 being  the appointed date under the  States Re-organisation  Act, 1956  and it  has no reference whatsoever  to any  pension granted  subsequent to that date.  Moreover Paragraph 3 also makes it clear that it is only  the liability  of an  existing State  in respect of pension which  is required  to be  apportioned  between  the successor States in the population ratio. 1000 It is  therefore clear  beyond doubt  that  Section  86  and Paragraphs 1 and 3 of the Fifth Schedule do not cover a case where a  liability for  pension is  created by  a  successor State subsequent to the appointed date, namely, 1st October, 1956.  The   reliance  placed   by  the  learned  Additional Solicitor General  on behalf  of the  State of Tamil Nadu on Section 86  read with  Paragraphs  1  and  3  of  the  Fifth Schedule is  therefore misconceived  and the  argument based upon it must be rejected      If Section 86 read with Paragraphs 1 and 3 of the Fifth Schedule  has  no  applicability,  the  question  before  us resolves  into  a  very  narrow  one,  namely,  whether  the liability for  family pension  created by the State of Tamil Nadu under  the Notification dated 26th May, 1979 is limited only to  cases of  those government  servants who  were last employed at  a place  which  falls  within  the  territorial limits of  the State  of Tamil  Nadu. The  argument  of  the petitioners was  that their  respective husbands were in the service of  the former  State of  Madras and they retired as such government  servants at a time when the State of Madras was in existence and if the State of Tamil Nadu which is the successor  State  to  the  State  of  Madras  has  issued  a Notification dated  26th May,  1979 granting  the benefit of family pension  to the  widows of  government  servants  who retired prior  to 1st  April, 1964,  the petitioners must be held to  be entitled  to the benefit of such family pension, since they  satisfied all  the conditions  requisite for the applicability  of   grant  of   family  pension   under  the Notification dated  26th May,  1979.  Now  it  was  not  the contention of  the  State  of  Tamil  Nadu  that  Government servants who  were in  the employment of the State of Madras and who  retired before  the State  of Tamil  Nadu came into being as a result of the States Reorganisation Act 1956 were not entitled  to the  benefit of  family pension  under  the Notification dated  26th May  1979. The  State of Tamil Nadu conceded that  the widows  of such  Government servants were entitled to  grant of  family pension under the Notification dated 26th  May 1979  provided such government servants were at the  date of  superannuation serving  at a place which on the reorganisation of the Stales fell within the territories forming part  of the  State of  Tamil Nadu.  Only ground  on which  the  State  of  Tamil  Nadu  sought  to  exclude  the petitioners from  the benefit of the family pension was that their respective  husbands  served  at  the  time  of  their superannuation at places which as a result of the States Re- organisation Act  1956 were  no more  in the  State of Tamil Nadu but  became parts  of other  successor States. We do no think any such limitation can be read in the 1001

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Notification dated 26th May, 1979. It is true that by reason of the  subsequent Government  Order dated  18th March, 1982 issued  by   the  State   of  Tamil   Nadu  clarifying   the Notification dated  26th May, 1979, the petitioners would be excluded from  the benefit  of the  family pension since the places where  their respective  husbands were serving at the time of  superannuation became part of States other than the State of  Tamil Nadu.  But the  learned counsel appearing on behalf of  the  petitioners  challenged  the  constitutional validity of  the Government Order dated 18th March, 1982 and contended that  the place  where a  government  servant  was serving at  the time of superannuation has no rational nexus with  the  object  of  granting  family  pension  under  the Notification dated  26th May,  1979 and  that the Government Order dated  18th March 1982 is therefore discriminatory and void. This  contention is,  in our opinion, well founded and must be  accepted. The  object of  granting  family  pension under the  Notification dated 26th May, 1979 is obviously to alleviate the  economic distress of widows and other members of the  family of  Government  servants  who  retired  after faithfully serving the State of Madras as also the successor State of Tamil Nadu and who subsequently died leaving widows and other members of the family. Now admittedly the widow of a government  servant who  was in  employment of  the former State of Madras and who retired before the reorganisation of the States  would be  entitled to  family pension  under the Notification dated  26th May,  1979 if  the place  where her husband was  serving  at  the  time  of  superannuation  was situate in  the territories of the successor, State of Tamil Nadu. If  that be  so, then  it is  difficult to see how the widow of a government servant who served the former State of Madras in  the  same  manner  and  who  retired  before  the reorganisation of  the States  should  not  be  entitled  to family pension  under the  Notification dated 26th May, 1979 merely because  place where  her husband  was serving at the date of superannuation subsequently came to form part of the territories of a State other than the State of Tamil Nadu as a result  of the reorganisation of the States. The object of the Notification  dated 26th  May, 1979 does not warrant any such distinction  to be made between the widows of one class of government  servants and  the  widows  of  another  class merely on  the basis  of  the  place  where  the  government servant last  served at the time of superannuation, although in both  cases the Government servant served the same State, namely, the  former State of Madras and superannuated before the reorganisation  of the  States. We  are therefore of the view  that   the  restrictive   limitation  imposed  by  the Government  Order  dated  18th  March,  1982  confining  the benefit of 1002 family pension  to the  members of  the family of only those government servants  who last  served  at  a  place  falling within the  territories of the successor State of Tamil Nadu must  be   held  to  be  violative  of  Article  14  of  the Constitution and hence unconstitutional and void.      We must  accordingly hold  that the State of Tamil Nadu is liable  to pay  to the  petitioners in  these  four  writ petitions as also to the widows of other government servants falling within  Paragraph 7  of the  Notification dated 26th May, 1979  family pension  at the  rate of Rs. 100 per month with effect from 1st April, 1979. We would therefore issue a writ directing  the State  of  Tamil  Nadu  to  pay  to  the petitioners in  all these  writ petitions  arrears of family pension calculated at the rate of Rs. 100 per month from 1st April, 1979 after deducting the amount, if any, already paid

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by the States of Tamil Nadu and Kerala to the Petitioners in terms of  the interim orders made by us. The State of Kerala will not  be entitled to claim refund of any payment made to the  petitioners   nor  reimbursement  in  respect  of  such payments from the State of Tamil Nadu. The arrears of family pension shall  be paid  by the  State of  Tamil Nadu  to the petitioners within  four months  from today and the State of Tamil Nadu  will continue  to pay  to the petitioners family pension a  Rs. 100  per month  on or before 10th day of each succeeding month  in terms  of the  Notification dated  26th May, 1979.  We may  make it  clear that  the State of Kerala will not  be liable  in future  to make  any payment  to the petitioners since the future liability for payment of family pension rests on the State of Tamil Nadu. The State of Tamil Nadu will  pay to  the petitioners  costs  quantified  at  a consolidated figure of Rs. 2,000 in all the writ petitions. N.V.K.    Petitions allowed. 1003