IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 2175 of 2007. Reserved on: 9.4.2009. Decided on: 21.4.2009. __________________________________________________ Smt. Savitri Devi … Petitioner. Versus Union of India and others. .… Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. R.P. Singh, Advocate. For Respondents No. 1 to 3 : Mr. Anup Rattan, CGC vice Mr. Ravinder Thakur, CGC. ___________________________________________________________ Rajiv Sharma, Judge. Brief facts necessary for adjudication of this writ petition are that son of the petitioner was enrolled in the Regiment of Artillery on 25.2.1995. He was posted to 831 Light Regiment with effect from 23.1.1996. He died on 24.9.1996 at Base Hospital, Barrackpore. He had nominated his mother-Smt. Savitri Devi, as next of kin, heir to estate for DCRG and family pension at the time of enrolment. The Artillery Records had forwarded Special Family Pension claim in respect of the petitioner-Smt. Savitri Devi, mother of deceased soldier to PCDA (P), Allahabad on 29.9.1999. The DCDA (P), Allahabad rejected the Special Family claim on 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 25.11.1999 on the grounds that “the income of claimant is more than Rs. 2550/- per month”. She was only sanctioned death gratuity of Rs. 18,720/-. This position was communicated to the petitioner on 21.4.2000. The petitioner served a legal notice dated 7.7.2000 on the respondents. The same was replied on 6.3.2001 re-iterating that the income of the parents was more than Rs. 2550/- per month. The petitioner had submitted income certificate (Annexure R-5) issued by the Tehsildar, Amb, District Una (H.P.). Mr. R.P. Singh, Advocate has strenuously argued that the condition of income imposed, vide Annexures P-4 and P-5, is arbitrary, oppressive, harsh and unreasonable and also violative of Articles 14 and 21 of the Constitution of India. He then contended that all the parents who have lost their sons/daughters while in harness constitute a homogenous class and there cannot be any discrimination merely on the basis of income criteria prescribed, vide Annexures P-4 and P-5 dated 26.8.1998 and 24.11.1999. Mr. Anup Rattan appearing vice Mr. Ravinder Thakur has supported the instructions issued by the Ministry of Defence imposing the condition of income of Rs. 2550/- for the purpose of grant of family pension. I have heard the parties and have gone through the record carefully. The case of the petitioner, as noticed above, was forwarded by the Artillery Records to the PCDA (P), Allahabad on 29.9.1999. It was rejected on the ground that income of the 3 parents was more than Rs. 2550/- per month. The same stand was re-iterated in reply to notice on 6.3.2001. The petitioner had submitted affidavit Annexure R-6 issued by the Tehsildar, Amb, District Una, H.P. The petitioner had given her income as nil. She has given the income of her husband Rs. 49,700/- and the income of her son serving in the Armed Forces Rs. 39,800/-. The total income of her husband and son was Rs. 92,000/- per annum including the income from land. Mr. R.P. Singh, Advocate has vehemently argued that the income of the petitioner was nil, however, the respondents have taken into consideration the income of her husband and son while rejecting the case of the petitioner. Mr. Anup Rattan has drawn the attention of the Court to Annexure P-5 dated 24.11.1999 whereby it is stipulated that income criterion will be taken into consideratiion for both the parents when both are alive and it will be taken for single parent when only one of them is alive. In view of this condition imposed, there is no force in the submission of Mr. R.P. Singh. Now, the Court has to advert to the submissions of Mr. R.P. Singh whereby he has challenged imposition of condition of income vide Annexures P-4 and P-5. The Government of India vide resolution dated 30.9.1997 and on the basis of paragraph 13.2 of the Ministry’s letter No. 1(6)/98 (Pension/Services) dated 3.2.1998 has taken a decision that the definition of “family” for the purpose of ordinary family pension shall also include (i) parents who were wholly dependent on the Armed Forces Personnel when he/she was alive provided the deceased Armed Forces Personnel 4 had left behind neither a widow nor a child and (ii) widowed/divorced daughter in respect of whom dependency/income criterion will be clarified separately. The text of paragraph two of Annexure P-4 dated 26.8.1998 reads thus: “It has now been decided by the Government that the income criteria in respect of parents and widowed/divorced daughters will be that their earning is not more than Rs. 2550/- per month. The parents will get ordinary family pension at 30% of basic pay of the deceased Armed Forces Personnel subject to a minimum of Rs. 1275/- per month. They also will have to produce an annual certificate to the effect that their earning is not more than Rs. 2550/- per month. Further the ordinary family pension to the widowed/divorced daughters will be admissible till she attains the age of 25 years or upto the date of her re-marriage, whichever is earlier.” It is evident from the text of paragraph two reproduced hereinabove that the parents are only entitled to get the family pension if their income is not more than Rs. 2550/- per month. The parents have been held entitled to ordinary family pension as 30% of the basic pay of the deceased Armed Forces Personnel subject to a minimum of Rs. 1275/- per month. They are also required to produce annual certificate to the effect that their earning is not more than Rs. 2550/- per month. It appears that the income criteria of earning not more than Rs. 2550/- has been incorporated by the Government on the basis of recommendations of 5th Central Pay Commission. The purpose of including the parents, who were wholly dependent on the Armed Forces 5 Personnel for the purpose of release of family pension, was to mitigate their hardships. The object of granting family pension to 6 the parents who have lost their sons/daughters in service is a social measure. Initially, the parents were not entitled to get family pension in case of death of their son/daughter. There is no convincing justification forthcoming from the reply and the arguments advanced by the learned counsel appearing on behalf of the Union of India why the condition of income criteria of Rs. 2550/- has been imposed. The only averment in the reply as per the supplementary affidavit filed is that it was done on the basis of recommendations of the 5th Central Pay Commission. It is true that the 5th Central Pay Commission may have recommended income criteria of Rs. 2550/- per month but why this condition has been imposed, has not been spelt out. A sum of Rs. 2550/- per month is a very meagre amount. It is less than the amount which a daily wages labourer earns now a days. It cannot be expected that the claimant will survive from the income of Rs. 2550/- as provided in the income criteria. The income of Rs. 2550/- is not even a fair/basic wage. The very laudable purpose of granting pension to the parents, who were dependent on the Armed Forces Personnel when he/she was alive, has been rendered otiose and nugatory by imposing income criteria of Rs. 2550/- per month. The pension has been given the status of fundamental right under Article 21 of the Constitution of India. It is true that it is always open to the employer to impose conditions while releasing retiral benefits including family pension, however, the condition imposed must have rational with the object sought to be achieved. The objective of including the parents in the definition 7 of “family” was to help them after the demise of their son and by imposing the income criteria, the same has been defeated. The income of the mother was nil, as per Annexure R- 6. The husband’s pension is Rs. 49,700/- and income of her son who is also serving in the Armed Forces is Rs. 39,800/-. The Court is of the view that income criteria of Rs. 2550/- has rendered the object of bringing the parents in the ambit of “family” for the purpose of pension illusory. The income criterion of Rs. 2550/- stipulated in Annexure P-4 is totally unreasonable and arbitrary. It will cause immense hardship to the petitioner and the similarly situate parents. Their Lordships of the Hon’ble Supreme Court in Grand Kakatiya Sheraton Hotel & Towers Employees & Workers Union Vs. Srinivasa Resorts Ltd. & others, JT 2009 (4) SC 550 have held that hardship can also be a ground to struck down the provisions of law. Their Lordships have held as under: “A further criticism was leveled by the Learned Counsel for the appellant that the High Court had struck down the provisions only on the grounds of hardship and that was not permissible. Learned Counsel relied on a decision in Prafulla Kumar Das & Ors. Vs. State of Orissa & Ors. reported in 2003 (11) SCC 614 and our attention was invited to paragraph 45 thereof. Learned Counsel also relied on another decision in R.N. Goyal Vs. Ashwani Kumar Gupta & Ors. reported in 2004 (11) SCC 753, particularly on the observations made in paragraph 5, as also the decision in Government of Andhra Pradesh Vs. P. Laxmi Devi reported in 2008 (4) SCC 720. Insofar as the last decision is concerned, we do not see 8 as to how it helps the appellant, as in that decision, this Court has recognized the presumption of constitutional validity of a statute. There can be no quarrel with that proposition. Our attention was invited to paragraphs 70, 72, 73 and 78. We could not find anything in those paragraphs, which supports the contention that a mere hardship cannot be a ground for striking down a provision. This Court had only shown the presumption of constitutionality and has cautioned against the light treatment being given to the subject. In our opinion, that is not the case here. The High Court's judgment proceeds on solid bedrock of lucid reasoning and is not restricted to hardship alone. In R.N. Goyal Vs. Ashwani Kumar Gupta & Ors. reported in 2004 (11) SCC 753 (cited supra), while repealing the constitutional challenge to the rules, which was observed by this Court that if the Rules framed under Article 309 of the Constitution of India were for general good, but caused hardship to the individual, the same could not be a ground for striking down the Rules. These observations are not apposite to the present controversy. Here the impugned provisions have not been struck down merely because they would cause hardship to any individual or any class. In fact, the provisions have been shown to be totally unreasonable and in total contradiction with the established norms for the concept of gratuity. Not only that, the provisions have been shown to be discriminatory in respect of the two sets of workers, who are similarly, if not identically circumstanced. In case of Prafulla Kumar Das & Ors. Vs. State of Orissa & Ors. (cited supra) also, it was specifically observed in paragraph 45 that 9 the Legislature had the requisite jurisdiction to pass appropriate Legislation, which would do justice to its employees. The Court went on to hold that if a balance is sought to be struck down by reason of the impugned Legislation, it would not be permissible for the Court to declare the legislation ultra vires only because it may cause some hardships to the petitioners. These observations were made in relation to the service jurisprudence, where, the constitutional validity of Orissa Administrative Service, Class II (Appointment of Officers Validation) Amendment Act, 1992, was in challenge. By that amendment, relative seniority was awarded to the direct recruits for the year 1973, who were appointed in the year 1975, over and above, the mergerists born in the said Service by virtue of merger of their parent cadre with the Orissa Administrative Service, Class II. The argument was raised that such grant of seniority would amount to a hardship to the petitioners in the matter of seniority. The Constitution Bench of this Court thoroughly examined the provisions of Section 2 of the Amendment Act with reference to the earlier cases decided on the question and came to the conclusion that it was disinclined to temper with the settled practice, particularly, in view of the law laid down in Direct Recruit Class II Engg. Officers' Assn. Vs. State of Maharashtra reported in 1990 (2) SCC 715. It was found that the concept of the "year of allotment" was workable and it was within the powers of the Government to recruit the officers from variety of sources. It was also found that the seniority awarded was on the basis of a legal fiction, which had to be given its full 10 effect. It was in that context that the observations regarding hardship were made. We are afraid, the fact-situation in the present case is entirely different and the observations made are not applicable to the present matter. We, therefore, reject the argument raised by the appellant. This is apart from the fact that the High Court has correctly observed that even if the law cannot be declared ultra vires on the ground of hardship, it can be so declared on the ground of total unreasonableness applying Wednesbury's "unreasonableness" principles. The Court, specifically, has also found that this reasonableness is apparent from the fact that the employees falling within Sub-Sections (1) and (3), although from different classes, had been treated equally, giving them the same benefit. For this purpose, the Court also relied on the observations made in Bennet Coleman & Co. Ltd. Vs. Union of India reported in AIR 1973 SC 106.” The matter can also be viewed from another angle. The parents who are wholly dependent on the Armed Forces Personnel constitute a homogenous class. The respondents had divided the homogenous class by imposing income criteria. It is settled law by now that there should be (i) intelligible differentia and (ii) rational nexus with the object to be achieved while framing rules or instructions. These two tests have to be satisfied simultaneously for a legislation/instruction to be framed. In the present case, a homogenous class has been divided merely on the basis of illusory income criteria prescribed. There is no reasonable nexus with the objective sought to be achieved by prescribing the income criteria. The decision/action of the State must be reasonable, rational and 11 should be arrived at after taking into consideration the ground realities. The laudable objective of including the parents in the definition of “family” would be frustrated by applying the restriction of income. The parents constitute one class. They could not be divided for the purpose of family pension on the basis of income criteria. The objective is to help the parents who are wholly dependent on their sons/daughters serving in the Armed Forces. The parents who have income of more than Rs. 2550/- per month have been discriminated against by the respondents on the basis of income criteria. There should be fairness and reasonableness in the action of the State. The imposition of income criteria is arbitrary, thus, violative of Article 14 of the Constitution of India. In fact, reasonableness and fairness are the basic ingredients of Article 14 of the Constitution of India. The equals cannot be treated unequally. Their Lordship’s of the Hon’ble Supreme Court had an occasion to interpret expression “wholly dependent” in State of M.P. and others Vs. M.P. Ojha and another, (1998) 2 Supreme Court Cases 554. Their Lordships have held that “wholly dependent” includes financial as well as physical dependence. Their Lordships have further held that by getting pension of Rs. 414/- per month, it could not be said that father was wholly dependent on his son. Their Lordships have laid down that flexible approach has to be adopted in interpreting and applying the rules. Their Lordships have held as under: “The expression “wholly dependent” is not a term of art. It has to be given its due meaning with reference to the Rules in which it appears. We need not make any attempt to define the expression “wholly dependent” to 12 be applicable to all cases in all circumstances. We also need not look into other provisions of law where such expression is defined. That would be likely to lead to results which the relevant rules would not have contemplated. The expression “wholly dependent” has to be understood in the context in which it is used keeping in view the object of the particular rules where it is contained. We cannot curtail the meaning of “wholly dependent” by reading into this the definition as given in SR 8 [sic SR 2 (8)] which has been reproduced above. Further, the expression “wholly dependent” as appearing in the definition of family as given in Medical Rules cannot be confined to mere financial dependence. Ordinarily dependence means financial dependence but for a member of a family it would mean other support, may be physical, as well. To be “wholly dependent” would therefore include both financial and physical dependence. If support required is physical and a member of the family is otherwise financially sound he may not necessarily be wholly dependent. Here the father was 70 years of age and was sick and it could not be said that he was not wholly dependent on his son. The son has to look after him in his old age. Even otherwise by getting a pension of Rs. 414 per month which by any standard is paltry amount it could not be said that the father was not “wholly dependent” on his son. That the father had a separate capacity of Medical Rules being a member of the family of his son and wholly dependent on him. A flexible approach has to be adopted in interpreting and applying the Rules in a case like the present one. There is no dispute that the son took his father to Bombay for treatment for his serious ailment after getting due permission from the competent authority. It was submitted before us that the father being a retired government servant could himself get sanction for treatment outside the State as a special 13 case from the competent authority. It is not necessary for us to look into this aspect of the matter as we are satisfied that under the relevant Medical Rules, the father was a member of the family of his son and was wholly dependent on him and the 2nd respondent was thus fully entitled to reimbursement for the expenses incurred on the treatment of his father and other traveling expenses.” Their Lordships of the Hon’ble Supreme Court in State of A.P. vs. G. Ramakishan and others (2001) 1 Supreme Court Cases 323 have held that when the action of the Government was challenged on the ground of arbitrariness and discrimination, it was for the Government to plead in justification of fixing two different dates in the matter. Their Lordships have held as under: “It is our considered view that on the pleadings of the parties, the learned single Judge rightly came to the conclusion that the State Government failed to show that there was any reasonable basis or intelligible differentia for giving effect to the enhanced rates of stipend for the Post-Graduate students of the Agricultural University from a date different from the effective date of the Post- Graduate students of the Medical Colleges, particularly when it was the specific case of the writ petitioners that the State Government had all along maintained parity in the matter of stipend paid to the Post-Graduate students of both the institutions. On this occasion also regarding the rates of stipend payable to Post-Graduate students in the two institutions was maintained. However, a differentiation was made in so far as the date with effect from which the benefit of the enhanced rates will be available; while in case of 14 Post-Graduate students of Medical Colleges, the benefit was extended with effect from an anterior date in the case of Post-Graduate students of the Agricultural University, the benefit was extended from a date subsequent thereto. This departure from the parity in the matter between the two groups of Post-Graduate students, which had admittedly been maintained all along, was assailed as arbitrary and discriminatory. When the action of the Government was challenged on the ground of arbitrariness and discrimination it was for the Government to plead justification for fixing the two different dates in the matter. It neither stated in the pleadings any reasonable or rational basis for giving effect to the enhanced rate of stipend with effect from different dates nor did it place any material before the Court in that regard. For this purpose it is of no relevance that courses of studies of the Post- Graduate students in the two institutions and the nature of practical duty done by them are different, for the reason that the matter under challenge related to the date with effect from which the enhanced stipend is to be paid to Post-Graduate students of Agricultural University. In such circumstance the learned single Judge cannot be faulted for having taken the view that the action of the State Government in the matter was not supported by any rational basis or intelligible differentia. The Division Bench, in the facts and circumstances of the case, rightly dismissed the appeal filed by the appellant herein.” In this case also the respondents have neither pleaded nor justified any reasonable or rational basis for prescribing income criteria except that it has been done on the recommendations of the 5th Pay Commission. 15 It is no more res integra that Article 14 prohibits class legislation and not reasonable classification. The rule making authority has to ensure reasonably to classify persons for a particular purpose. However, it has to pass the twin test of permissible classification: (a) that the classification must be founded on an intelligible differentia which distinguishes persons or things which are grouped together from others left out of the group; and (b) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. In the present case, the criterion of income prescribed on the basis of paragraph two in Annexure P-4 has failed to pass the twin test laid down by the Hon’ble Apex Court. The Hon’ble Apex Court in Subrata Sen and others Vs. Union of India and others, (2001) 8 Supreme Court Cases 71 has held that the pension is neither a bounty, nor a matter of grace depending upon the sweet will of the employer, nor an ex gratia payment for the past services rendered. It is a social welfare measure rendering socio-economic justice to those who in the heyday of their life ceaselessly toiled for the employer. Accordingly, in view of the reasons stated hereinabove, paragraph two of Annexure P-4 dated 26.8.1998 is declared ultra vires the Constitution being violative of Articles 14 and 21 of the Constitution of India. The provision of income criteria is declared totally unreasonable, arbitrary and harsh. 16 Accordingly, the writ petition is allowed. Condition number two imposing the income criteria of earning not more than Rs. 2550/- in Annexure P-4 dated 26.8.1998 is struck down. The respondents are now directed to consider the case of the petitioner for the release of family pension without insisting for income certificate as per Annexures P-4 and P-5. No costs. (Rajiv Sharma), J. April 21, 2009. (cr)