tion Nos
1128 and 1204 of 1988 1012 Under Article 32 of the Constitution of India
Mrs section Ramachandran for the Petitioners
VC 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 381947 and was given pension
In 1955 his wife died and in 1965 he was married to the petitioner
The 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 NK 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 5414b 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 DS Nakara  Ors
vs Union of India   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 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 vs State of Bihar  Ors  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 vs Union of India  Ors   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 DS 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 hisher 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 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 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


Summary:
By an order dated 7988 the Collector  District Magis trate Madurai under section 32 of the made an order for keeping in custody Nallathambi the husband of the appellant petitioner
The State Govt
on 251088 by its order under section 121 of the Act confirmed the order of detention agreeing with the opinion of the Advisory Board and ordered the detention of the detenue for 12 months from the date of his detention
The wife of the detenue challenged this preventive detention by filing a writ of Habeas Corpus in the High Court of Madras
The High Court by its order dated 6389 dismissed the writ petition
The appellant petitioner challenged the dismissal of the writ by the High Court by way of special leave and also by filing a writ petition under Article 32 of the Constitution of India
This Court while quashing the detention order HELD Subsisting custody of the detenue by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case preventive detention being necessary to prevent the detenue from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc
ordinarily it is not needed when the detenue is already in custody the detaining authority must show its awareness to the fact of subsisting custody of the detenue and take that factor into account while making the order but even so if the detain ing authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities the detention order can be validly made even in anticipation to operate on his release
919E G In the instant case the the detention order read with its annexure indicates the detaining authority s awareness of the fact of detenue s 902 jail custody at the time of the making of the detention order
However there is no indication therein that the dete nue could be released on bail
On the contrary the detention order shows satisfaction of the detaining authority that there was ample material to support the criminal charge against the detenue
The order of detention passed on 791988 and its confirmation by the State Government on 25101988 is therefore clearly invalid since the same was made when the detenue was already in jail custody for the offence of bank dacoity with no prospect of his release
919H 920C Rameshwar Shaw vs District Magistrate Burdwan  Anr
  upon
Kartic Chandra Guha vs The State of West Bengal  Ors  Dr Ramakrishna Rawat vs District Magis trate Jabalpur  Anr  Vijay Kumar vs State of Jammu  Kashmir  Ors
   Alijan Mian  Anr
vs District Magistrate Dhanbad   Ramesh Yadav vs District Magistrate Etah  Ors  Binod Singh vs District Magistrate Dhan bad Bihar  Ors   Poonam Lata vs ML Wadhawan  Anr  and Smt
Shashi Aggarwal vs State of U P  Ors