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PETITIONER: SMT. POONAMAL ETC. ETC.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT30/04/1985

BENCH: DESAI, D.A. BENCH: DESAI, D.A. MISRA RANGNATH

CITATION:  1985 AIR 1196            1985 SCR  (3)1042  1985 SCC  (3) 345        1985 SCALE  (1)938  CITATOR INFO :  F          1989 SC2088  (7,12)  RF         1991 SC1182  (20)

ACT: Civil Service:      Family Pension-Contributories  to  scheme  entitled  to family   pension-    Scheme   liberalised-Pre-condition   of contribution done  away with-Benefit  not extended  to  non- contributories-Whether violates Art. 14 of the Constitution.

HEADNOTE:      Since January 1, 1964, there were in force two parallel family pension  schemes in  operation, namely,  (a)  a  pre- liberalisation scheme  which continued  to be  in force  for those who  retired prior  to 1.1.1964  or those  who did not contribute out of the death-cum-retirement gratuity, roughly styled  as   non-contributory  scheme.  The  other  was  the contributory scheme.  Both these schemes are incorporated in Rule 51  and 55  respectively of  the Civil Services Pension Rules 1972.  On September  22, 1977  the Government of India done away  with the  pre-condition of  contribution  of  two months emoluments out of death-cum-retirement gratuity. But, the widows  of the Government servants who had not agreed to make the  contribution in  accordance with  the 1964  scheme were  denied   the  benefit   of  pension  scheme  and  this disability continued  even after  the changes  introduced in 1977 when  the scheme  ceased to be contributory Such widows moved Supreme Court and Bombay High Court in writ petitions. The High Court rejected the writ petition      Disposing of  the petitions  and  the  appeal  to  this Court, ^      HELD: 1.  Since the  family pension  scheme has  become non-contributory  effective   from  September  22,1977,  any attempt at  denying its  benefit to widows and dependents of Government servants  who had not taken advantage of the 1964 liberalisation  scheme   by  making   or  agreeing  to  make necessary  contribution  would  be  denial  of  equality  to persons similarly  situated and  hence violative of Art. 14. If widows  and dependents  of deceased  Government  servants since after September 22, 1977 would be entitled to benefits of family  pension scheme  without the  obligation of making

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contribution, those  widows who  were denied the benefits of the ground that the Government servants having not agreed to make the  contribution, could  not  be  differently  treated because   that    would   be    introducing   an   invidious classification among  those who would be entitled to similar treatment. [1046 B-D] 1043            2. Where the Government servant rendered service, to compensate  which a  family pension scheme is devised the widow and  the dependent minors would equally be entitled to family pension  .19 a  matter of  right. If  fact the  Court looks upon  pension not  merely as  a statutory right but as the fulfilment  of a  constitutional promise  inasmuch as it partakes the  character of  public assistance  in  cases  of unemployment 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 case, [1983] 2 S.C.R. 165. [1045; G-H 1046 A]

JUDGMENT:      CIVIL ORIGINAL  JURISDICTION: Writ Petitions Nos. 5870- 93/81,          Under Article 32 of the constitution of India                             WITH                   Civil Appeal NO. 2226/85 From the  Judgment and Order dated 14. 2. 1984 of the Bombay High Court in Writ Petition No. 4215 of 1983      Yogesbwar Prasad,  H. Salve,  P. H.  Parckh, Mrs., Rani Chhabra, Ms.  Data Krishnamurthy,  Ms. A.  Subhashini, A. S. Pundir, J.S.  Bali, S.  Balakrishnan, Pramod Sarup and R. S. Sodhi, for the petitioners.      V. B. Joshi for the Appellant.      The following Judgment of the Court was delivered by      DESAI, J. Promise of socio-economic justice depicted in rosy language  in Arts.  38, 39  and 41  is being translated into a  real action-oriented programme by the stand taken by the Union of India and the Ministry of Finance in this group of  petitions   and  application  for  special  leave  which deserves approbation and commendation. Amongst the neglected sections of  the society  women form  a bulk. In that bigger class widows  are possibly the worst sufferers both socially and economically.  To them,  a helping hand is extended, for providing succour  sorely needed, by the two statements made in the  Court by Mr. B. Dutta, learned counsel appearing for the Union  of India  and the Ministry of Finance. Throughout the course  of hearing,  Mr. B.  Dutta adopted  a  positive, constructive and helpful attitude and he is equally entitled to our appreciation.      As a  sequel to  the decision of the Constitution Bench of this  Court in  D.S. Nakara  and  Of  hers  v.  Union  of India(l) a  number of  petitions came to be filed by persons claiming to  be entitled to the socially beneficent approach of the Court. One such group comprised (1) [1983] 2 SCR 165 1044 widows of  erstwhile Government  servants  who  are  not  in receipt of family pension.      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

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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 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.      Focussing on  the liberalisation that was introduced in 1964  it transpires that the widow and the minor children of those Government  servants who  died prior  to 1964 were not eligible for  the benefit  of liberalised  scheme. The other class which  was left  out of  the liberalisation scheme was those Government  servants who specifically opted out of the family pension  scheme, 1964.  The resultant  situation  was that since  January 1,1964 there were in force  two parallel schemes in  operation namely  a) a pre-liberalisation scheme which continued  to be  in force  those who retired prior to 1.1.1964 or  those who  did not contribute out of the death- cum-retirement gratuity,  roughly styled as non-contributory scheme. The  other was  the contributory  scheme. Both these schemes are  incorporated in  Rule 54 and 55 respectively of the Civil Services Pension Rules 1972.      The Union  of India in its onward march for ushering in socioeconomic justice in the form of social security further took a  bold and  imaginative step  on September 22, 1977 by which the  pre condition  of two  months’ emolument  out  of death-cum-retirement   gratuity    was   done   away   with. Recognising the need for such a 1045 beneficial  change,  the  memorandum  introducing  the  1977 liberalisation recorded  the decision  of the Union of India as under:           "The staff  side has  suggested  in  the  National      Council of the JCN that this family pension is a social      security measure  and the employee should not be called      upon to  contribute towards  the scheme. The matter has      been examined  in the  light of  the recommendations of      the National  Council and  the President  is pleased to      decide that no deduction should be made from the death-      cum-retirement gratuity  as a  contribution towards the      family pension."      Accordingly since  September 22,  1977 the contributory scheme ceased to exist.A very analogous situation arose. The widows of the Government Servants who had not agreed to make the contribution  in accordance  with the  1964 scheme  were denied the  benefit of  pension scheme  and this  disability continued even after the changes introduced in 1977 when the scheme ceased  to be  contributory. Such  widows moved  this Court in  writ petitions. Widows similarly situated had also filed Writ  Petition  No.  3749/84  in  the  High  Court  of Judicature at  Bombay.A Division  Bench of  the  High  Court rejected the  writ  petition  for  reasons,  which,  in  our opinion, are  wholly untenable but that is beside the point. We  accordingly  granted  leave  to  the  petitioners  whose petition were  dismissed by the Bombay High Court. Rule nisi was issued in writ petitions filed in this Court.

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    It is  not necessary to examine the concept of pension. As already  held by  this Court  in numerous  judgments that pension is  a right  not a bounty or gratuitous payment. The payment of  pension does  not depend  upon the discretion of the Government  but is  governed by  the relevant  rules and anyone entitled  to the pension under the rules can claim it as a  matter of right. Deoki Nandan Prasad v. State of Bihar and Ors.(1)  State of  Punjab &  Anr. v.  Iqbal Singh(2) and D.S. Vakara  & Ors.  v. Union of India. Where the Government Servant rendered  service,  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 character of public assistance in cases of unemployment, (1) [1971] Supp. SCR 634 (2) [19761 3 SCR 360 1046 old-age, disablement  or similar  other cases of underserved want.     Relevant   rules   merely   make   effective   the constitutional mandate.  That is how pension has been looked upon in  D.S. Nakara’s  judgment. At the hearing of group of matters we  pointed out that since the family pension scheme has become  non-contributory effective  from  September  22, 1977 any  attempt at  denying  its  benefit  to  widows  and dependents of  Government servants  who had not taken of the 1964 liberalisation  scheme by  making or  agreeing to  make necessary  contribution  would  be  denial  of  equality  to persons similarly  situated and  hence violative of Art. 14. If widows  and dependents  of deceased  Government  servants since after September 22, 1977 would be entitled to benefits of  family   pension  without   the  obligation   of  making contribution, those  widows who  were denied the benefits on the ground that the Government servants having not agreed to make the  contribution, could  not  be  differently  treated because   that    would   be    introducing   an   invidious classification: among those who would be entitled to similar treatment. When this glaring dissimilar treatment emerged in the course  of hearing  in the  Court, Mr.  B. Dutta learned counsel appearing  for the  Union of  India requested  for a short adjournment to take further instructions.      On the  next hearing  Mr. B.  Dutta made a statement on behalf of  Union of India, the relevant portion of which may be extracted:           "Government  have  examined  the  matter.  As  the      Family Pension  Scheme, 1964  was made non-contributory      from 22.9.1977,  Government would  agree to  extend the      benefit of  the Family  Pension Scheme  1946 to all the      living widows.  Payment to such widows may be made from      22.9.1977 or  the  date  of  death  of  the  pensioner,      whichever is  later, till  the date  of  death  of  the      widow. The  benefit will  also be  available  in  cases      where the  death of  the  pensioner  occurs  hereafter.      Administrative  procedures   are   being   evolved   to      facilitate  identification   of  widows  of  Government      pensioners and  to lay  down  the  guidelines  for  the      determination of family pensions. The benefit of family      pension mentioned above will not apply to the widows of      Government servants  who would not have been covered by      the  scheme   even  if   the  scheme   had  been  given      retrospective effect." 1047 While examining  the statement  it transpired  that  certain clarifications were  necessary.  ’Common  Cause’  a  Society

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which is  a petitioner  in one  petition pointed out certain aspects of  the statement  which needed  clarification.  The Court directed  the the  ’Common Cause’  society to  send  a letter to  the Ministry  of Finance indicating the points on which clarifications  were required  by Y  them. The  issues raised by the Society may be summed up as under:      "(i) whether the  orders will  apply to the widow/minor           son/ unmarried daughter as defined in the relevant           provisions of family pension scheme;      (ii) whether the  scheme of  pension as prescribed with           effect  from   1.1.1973  will  be  made  uniformly           applicable to  all the  eligible  persons  in  the           family pension scheme; and      (iii)     whether the benefits of family pension scheme           will  be   made  available   to   all   pensioners           irrespective of  the fact  whether they had or had           not contributed two months’ emoluments in terms of           the  original   family   pension   scheme,   which           contribution was  subsequently deleted with effect           from 22 9. 1977."      Today when  the matter  was taken  up for final hearing another statement  was submitted by Mr B. Dutta on behalf of the  of   India.  The  Government  of  India  submitted  its clarifications on  the afore-mentioned  three  points  which reads as under:      "(i) Governments  are   prepared  to   grant   to   the           dependents i.e.  minor sons, etc of the pensioners           governed  unclear   pre-  1964   scheme  the  same           pensioners  benefits  as  are  admissible  to  the           dependents under current pension rules.      (ii) It is  clarified that  Government are agreeable to           apply the  increased pension rates introduced from           1.1 1973  to all  the eligible  persons, including           dependents. This  will, however, be subject to the           condition  that   the  total   amount   admissible           (excluding dearness  relief) under the liberalised           provision now  being agreed  to, will  not be more           than what is admissible to a person covered 1048 under the Rules.      (iii)     Government have  already agreed  to the grant           of ar  rears of  family pension  with effect  from           22.9.77-the date  on  which  contribution  of  two           months’ emoluments  by  pensioners  was  dispensed           with. Persons  who  are  now  to  be  granted  the           benefits of family pension will not be required to           contribute two  months emoluments.  Similarly,  no           demand for  refund of contribution already made by           pensioners- will be entertained,’      The clarifications  offered are  clear, unambiguous and wholly  satisfactory.  Learned  counsel  appearing  for  the petitioners stated  that nothing more is required to be done and requested us to incorporate the clarifications submitted to the  Court. Accordingly  these petitions  and appeals are disposed of  in terms  as herein  above indicated.  We order accordingly.      The appeal  against the  decision of the Division Bench of the  Bombay High Court is also allowed in the same terms. This is a happy ending to this extremely humane problem. M.L.A.                                        Appeal allowed 1049