HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 507 OF 2010 . DATED 22nd June, 2011. BETWEEN Rachagolla Vijaya Pratap Gandhi …Petitioner And The Government of Andhra Pradesh, Rep. by its Secretary, I & CAD (Project Wing) Department, Secretariat, Hyderbad and ors ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 507 of 2010 ORDER: With a view to provide employment to the displaced persons or their dependents under the major and medium irrigation projects, in supersession of the orders issued in G.O.Ms.No. 67, Irrigation & Power Department, dated 17.11,1978, the Government have promulgated G.O.Ms.No. 98, Irrigation (Proj.Wing) Department, dated 15.4.1986, and issued orders, which read as under: “i). Not more than 50% of the vacancies of the categories equivalent to Junior Assistants/Typists and the cadres below arising in Major & Medium Irrigation & Power Projects shall be filled up by the displaced families or their dependants of a respective project duly following the reservations for various categories viz., SC,ST,BC, Ex. Service Man, Physically handicapped and Meritorious Sportsman etc.,. ii). The candidate eligible for appointment under this schedule shall be the displaced persons or his/her son/daughter or spouse there being no other earning member in the family. iii). Applications for appointment from the eligible candidates shall be made to the District Collector concerned within a period of one year from the date of actual displacement of the family. Preferences shall be given with reference to the date of displacement and to those applicants whose houses and lands are acquired against those whose land or house only is acquired. The District Collector shall draw up a list of such application and forward the same to the Project Authorities for appointment. Iv) xxxxx xxxxx xxxxx xxxx v) xxxxx xxxxx xxxxx xxxx vi) xxxxx xxxxx xxxxx xxxx” Further, in G.O.Ms.No. 266, Irrigation & CAD Department, dated 19.09.1994, the Government have constituted Selection Committee to be in conformity with the Section 4(2) of Act 1994. In G.O.Ms.No. 44, Irrigation & CAD (PW) Department, dated 31.3.1999, the Government have issued orders modifying the orders issued in G.O.Ms.No. 148, dated 01.08.1991 determining the qualifying age of the displaced persons for employment with reference to the date of the award or date of filling up of vacancy which ever is later and also ordered that appointment of the displaced persons in terms of G.O.Ms.No. 266, I & CAD Department dated 19.9.1994 shall continue as a measure of rehabilitation. It is the case of the petitioner that the Government have acquired his lands and lands in six villages in B.Matham Mandal during the years 1983-84 for the purpose of construction of Telugu Ganga Project and awards were passed during the years 1986-87. The possession of the lands were taken and they were displaced from the village by 19.09.2005, the date on which the water inundated their village. As per the scheme envisaged in the G.O.Ms.No. 98, dated 15.4.1986, the petitioner applied for consideration of his case for appointment against the vacancies reserved for the displaced persons. After following the due procedure enumerated in the relevant Government Orders, the first respondent approved the list of displaced persons for providing employment vide Memo No. 9364/LA.IV.R&R.II/2009-6, dated 31.10.2009 and as per the said list, the name of the petitioner was shown at Sl.No.4 of Annexure-II appended to the said memo, wherein it was stated that the case of the petitioner was approved for appointment to the post of Junior Assistant under BC.B.(W) vacancy under Roster Point 49.BC.B(W) in the divisions of Kadapa District of TBP.HLC circle Ananthapur as there are no BC.B(W), or BC.C. (W) or BC.D(W) candidates available in the seniority list. While so, the third respondent has published the impugned list of 41 candidates on 10.01.2010 showing the name of the candidates ineligible for the reasons mentioned in Coloumn.13 thereof and the name of the petitioner is shown at Sl.No.3 of the said list, stating that the RDO, Rajampet, reported that the father of the candidate (writ petitioner) is a retired Government Head Master and therefore the petitioner is ineligible. To the said decision of the third respondent for employment under the quota earmarked for displaced persons, the petitioner submitted his objections on 11.1.2010 stating that his father was a septuagenarian as on 11.1.2010 and he retired from service in the year 2001 and therefore his right to employment under the quota earmarked for displaced persons cannot be denied. It is the grievance of the petitioner that when the Government made it abundantly clear in G.O.Ms.No. 247 that the date of actual displacement should be taken as the criteria for the purpose of eligibility and Government approval list should be taken before making appointments vide G.O.Ms.No. 44, dated 31.3.1999 and following the same, the list of 210 persons which had been prepared and forwarded by the District Collector was approved by the Chief Engineer vide Memo dated 31.10.2009, the action of the third respondent in making further verification and thereby disqualifying the petitioner vide the impugned list is illegal and without jurisdiction. It is the main contention of the learned Counsel for the petitioner that as on the date of filing of the application, the father of the petitioner was not an earning member being septuagenarian headmaster drawing pension and therefore he cannot be treated as earning member of his family. Counter affidavit is filed on behalf of the respondents adverting to the Government Orders issued in this behalf and stated that during the enquiry conducted by the Tahsildar on 18.8.2009 the petitioner furnished the particulars of his family members according to which none of them was earning member in his family and the same was recorded and the same was also echoed by his neighbours. After submission of the list of eligible displaced persons for appointment , several complaints/petitions were received from the public stating that a majority of displaced persons found suppressing certain facts of their ineligibility and as such they were to be deleted from the list of eligible displaced persons for appointment and petitioner is of the kind. It is further stated that during the re-enquiry, it was revealed that the father of the petitioner is a retired Government Head Master and in the earlier enquiry conducted on 18.08.2009 the petitioner has concealed the fact that his father is an earning member and receiving pension from the Government. As such, as per para 4(ii) of G.O.Ms.No. 98, dated 15.04.1986, for providing employment under the quota earmarked for displaced persons, the candidates eligible for appointment under the said scheme should be displaced persons and his/her son, daughter or spouse, there being no other earning member in the family and accordingly the name of the petitioner has been deleted from the list. As can be seen from the respective pleadings of the parties, it is obvious that the petitioner is a displaced person as the possession of the petitioner’s land along with others was taken by the respondent authorities. Admittedly, thereafter the petitioner submitted his application for appointment under the quota earmarked for displaced persons and the first respondent authorities after following the prescribed procedure therefor under the relevant Government orders approved the list of displaced persons for providing employment under Memo dated 31.10.2009 whereunder and whereby the case of the petitioner was considered and approved for appointment to the post of ‘Junior Assistant’. However, the third respondent has published the impugned list containing the names of 41 displaced persons on 10.01.2010 showing the names of the persons ineligible for the reasons mentioned in column 13 thereof and the name of the petitioner is shown at Sl.No.3 of the said list indicating to the effect that the Revenue Divisional Officer, Rajampet, reported that the father of the writ petitioner is an earning member being a retired Government Head Master drawing pension and therefore the petitioner is ineligible for consideration of the employment under the quota earmarked for displaced persons. The petitioner was thus denied employment albeit his case had been considered and approved by the first respondent along with the cases of others. In view of the above, the only aspect that falls for adjudication in this writ petition is as to whether a retired Government Head Master drawing pension can be treated as an earning member of the family. A Constitution Bench of the Supreme Court in D.S. Nakara v. Union of India (1983) 1 SCC 305 while inter alia dealing with the object and meaning of pension held thus: “27. Viewed in the light of the present day notions pension is a term applied to periodic money payments to a person who retires at a certain age considered age of disability; payments usually continue for the rest of the natural life of the recipient. The reasons underlying the grant of pension vary from country to country and from scheme to scheme. But broadly stated they are (i) as compensation to former members of the Armed Forces or their dependents for old age, disability, or death (usually from service causes), (ii) as old age retirement or disability benefits for civilian employees, and (iii) as social security payments for the aged, disabled, or deceased citizens made in accordance with the rules governing social service programmes of the country. ………… ………… 29. Summing up it can be said with confidence that 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 give 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 service. Thus the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison d’etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon. ………… 31. From the discussion three things emerge: (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. …………” [Emphasis added] I n State of Kerala v. M. Padmanabhan Nair (1985) 1 SCC 429, a two Judge Bench of the Supreme Court observed that pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but are valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment. The aforestated view was also reiterated by a three Judge Bench of the Supreme Court in Uma Agrawal (Dr.) v. State of U.P. (1999) 3 SCC 438. A two Judge Bench of the Supreme Court in Subrata Sen v. Union of India (2001) 8 SCC 71 following the decision of the Constitution Bench in D.S. Nakara v. Union of India (referred to supra) held thus: “14. ………… Payment of pension does not depend upon Pension Fund. It is the liability undertaken by the Company under the Rules and whenever becomes due and payable, is to be paid. As observed in Nakara case (1983) 1 SCC 305 pension is neither a bounty, nor a matter of grace depending upon the sweet will of the employer, nor an ex gratia payment. It is a 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 on an assurance that in their old age they would not be left in the lurch. Maybe that in the present case, the trust for Pension Fund is created for income tax purposes or for smooth payment of pension, but that would not affect the liability of the employer to pay monthly pension calculated as per the Rules on retirement from service and this retirement benefit is not based on availability of Pension Fund. There is no question of pensioners dividing the Pension Fund or affecting the pro rata share on addition of new members to the Scheme. …………” [Emphasis added] Again in Sansar Chand Atri v. State of Punjab (2002) 4 SCC 154 the Supreme Court inter alia held thus: “10. ………… In principle and in the light of the considerations set out above, there is no rational basis for excluding those discharged or released from service after earning pension. It is only after considerable period of satisfactory service a member of the armed forces becomes entitled to pension. The mere fact that after such long period of service he voluntarily quit the service with the consent of the employer should not place him in a disadvantageous position for claiming the benefit of reservation for ex-serviceman. Therefore, the expression “retirement” should be given wider meaning in order to effectuate the objective behind the Rule.” [Emphasis added] In Kerala SRTC v. K.O. Varghese (2003) 12 SCC 293, a two Judge Bench of the Supreme Court, while referring to the case law on the point including its earlier Judgments in State of Kerala v. M. Padmanabhan Nair and Uma Agrawal (Dr.) v. State of U.P. (referred to supra), held thus: 17. Pension to civil employees of the Government and the defence personnel as administered in India appear to be a compensation for service rendered in the past. However, as held in Dodge v. Board of Education2 a pension is closely akin to wages in that it consists of payment provided by an employer, is paid in consideration of past service and the purpose of helping the recipient meet the expenses of living. This appears to be the nearest to our approach to pension with the added qualification that it should ordinarily ensure freedom from undeserved want. 18. Summing up, it can be said with confidence that 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 foil of life when physical and mental powers start ebbing corresponding to the aging progress and therefore, one is required to fall back on savings. One such saving in kind is when you gave your best in the heyday 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 service. Thus the pension payable to an employee is earned by rendering long and sufficient service and therefore can be said to be a deferred portion of the compensation for service rendered. In one sentence one can say that the most practical raison d’etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon. 19. The discernible purpose thus underlying pension scheme or a statute introducing the pension scheme must inform interpretative process and accordingly it should receive a liberal construction and the courts may not so interpret such statute as to render them obscure (see American Jurisprudence 24.881). 20. From the aforesaid analysis three things emerge: (i) that pension is neither bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to the statute, if any, holding the field, (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social-welfare measure rendering socio-economic justice to those who in the heyday of their life ceaselessly toiled for employers on an assurance that in their ripe old age they would not be left in the lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the emoluments earlier drawn. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement. That is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.” [Emphasis added] In Halsbury’s Law of England, 4th Edn., Reissue, Vol. 16, it has been observed thus: “Pension means, a periodical payment or lump sum by way of pension, gratuity or superannuation allowance as respects which the Secretary of State is satisfied that it is to be paid in accordance with any scheme of arrangement having for its object or one of its objects to make provision in respect of persons serving in particular employments for providing them with retirement benefits and, except in the case of such a lump sum which had been paid to the employee, that: …………” In Corpus Juris Secundum, Vol. 70, at p. 423, it is stated that the title “pension” includes pecuniary allowances paid periodically by the Government to persons who have rendered services to the public or suffered loss or injury in the public service, or to their representatives; who are entitled to such allowances and rate and amount thereof; and proceedings to obtain and payment of such pensions. It is therefore discernible from the above that pension is neither a bounty, nor a matter of grace depending upon the sweet will of the employer. It is not an ex gratia payment but a 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 on an assurance that in their old age they would not be left in the lurch. The term ‘pension’ 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 service. Thus, the pension payable to an employee is earned by rendering long and sufficient service and therefore can be said to be a deferred portion of the compensation for service rendered. In view of the above discussion, it cannot be said that a retired Government Head Master drawing pension is an earning member of the family. Therefore, the ground cited by the third respondent on the basis of the report of the Revenue Divisional Officer, Rajampet, for denying employment to the petitioner under the quota earmarked for displaced employees is unsustainable in law. For the reasons stated hereinabove, the impugned list dated 10.01.2010 in so far as the petitioner is concerned is hereby set aside and the respondent authorities are directed to consider the case of the petitioner for suitable employment under the quota earmarked for displaced persons in consonance with the list of displaced persons approved by the Government under Memo No.9364/LA.IV-R&R.II/2009-6 dated 31.10.2009 forthwith and pass appropriate orders thereon. The Writ Petition is accordingly allowed. There shall be no order as to costs. -------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 22nd June, 2011. Msnro