CIVIL ORIGINAL JURISDICTION: Writ Petitions Nos. 587093/81,
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
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 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 deathcum-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
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.
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
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."
While examining the statement it transpired that certain clarifications were necessary. ’Common Cause’ a Society 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
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