Smt. Poonamal Vs. Union of India &
Ors [1985] INSC 111 (30 April 1985)
DESAI, D.A. 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
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]
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 concept ualised 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 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.
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 which is a
petitioner in one petition pointed out certain aspects of the statement which
needed clarification. The Court directed 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.
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