R.S.A. No. 301 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 301 of 2008 (O&M) Date of decision: 30.05.2009 Netar Kaur ....appellant versus Punjab State Electricity Board, Patiala, and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Ashwani Talwar, Advocate, for the appellant. *** VINOD K. SHARMA, J. (ORAL) C.M. No. 945-C of 2008 Allowed. Filing of certified copies of the judgment and decree of the learned trial Court and filing of certified copy of grounds of appeal before the learned lower appellate Court is dispensed with. R.S.A. No. 301 of 2008 This regular second appeal is directed against the judgment and decree dated 9.8.2007 passed by the learned Courts below, vide which the suit filed by the plaintiff/appellant seeking benefits under circular dated 24.6.1986, claiming pension equivalent to the salary last drawn by her deceased husband till the date of his retirement, has been declined. The plaintiff/appellant brought a suit on the pleadings that she R.S.A. No. 301 of 2008 (O&M) -2- was widow of Sh. Rulda Singh, who was working as Driver in the office of defendant/respondent No. 3. While on official tour on 18.12.1978, in car No. PUV-8754 he met with a fatal accident. The plaintiff/appellant was given compassionate employment as Peon with the defendant/respondents, where she joined on 19.1.1979. The plaintiff/appellant was also granted family pension, but it is the claim of the plaintiff/appellant that no special pensionary benefit were granted, as permissible to family of the regular Board employees, who died while performing official duties, and became victims of fatal accidents. The plaintiff/appellant further pleaded that in spite of her repeated requests, the benefits were not granted, therefore, she sought declaration from the Court to have the benefits of pension equivalent to the salary last drawn by her husband till the date of his retirement. The suit was contested, wherein number of preliminary objections were taken. On merits, stand was taken that circular dated 24.6.1986 on which reliance was placed, was not applicable to the case of the plaintiff/appellant, as it was applicable to the fatal accidents which occurred after coming into force the circular. The order dated 27.7.2000 declining the request of the plaintiff/appellant was said to be legal, valid and in consonance with law. The learned Courts below, on appreciation of evidence, recorded a concurrent finding of fact that circular dated 24.6.1986 could not have retrospective operation. Mr. Ashwani Talwar, the learned counsel appearing on behalf of the appellant, contends that the appeal raises the following substantial questions of law: - R.S.A. No. 301 of 2008 (O&M) -3- “1. Whether the instructions dated 24.6.1986 Ex. P- 9 were applicable to persons who died while performing official duties prior to the date of issuance of the instructions? 2. Whether the learned Courts below committed an error in rejecting the suit being time barred by ignoring that the plaintiff/appellant had recurring cause of action?' In support of the substantial question of law, the learned counsel for the appellant contends that instructions dated 24.6.1986 being beneficial instructions, were to have retrospective effect, therefore, the learned Courts below committed an error in holding the instructions to be prospective, and not applicable to the persons who had died prior to coming into force these instructions. In support of the contention raised, the learned counsel for the appellant has placed reliance on the judgment of the Hon'ble Supreme Court in Union of India and another Vs. SPS Vains (Retd.) and others, JT 2008(10) SC 399, wherein the Hon'ble Supreme Court has been pleased to lay down as under: - “26. The question regarding creation of different classes within the same cadre on the basis of the doctrine of intelligible differentia having nexus with the object to be achieved, has fallen for consideration at various intervals for the High Court as well as this Court, over the years. The said question was taken up by a Constitution Bench in the case of D.S. Nakara (supra) where in no uncertain terms throughout the judgment it has been repeatedly observed that the date of retirement of an employee cannot form a valid criterion for classification, for if that is the criterion those who retired by the end of the month will form a class by themselves. In the context of that case, which is R.S.A. No. 301 of 2008 (O&M) -4- similar to that of the instant case, it was held that Article 14 of the Constitution had been wholly violated, inasmuch as, the Pension Rules being statutory in character, the amended Rules, specifying a cut-off date resulted in differential and discriminatory treatment of equals in the matter of commutation of pension. It was further observed that it would have a traumatic effect on those who retired just before that date. The division which classified pensioners into two classes was held to be unofficial and arbitrary and not based on any rational principle and whatever principle, if there was any, had not only no nexus with the objects sought to be achieved by amending the Pension Rules, but was counter productive and ran counter to the very object of the pension scheme. It was ultimately held that the classification did not satisfy the test of Article 14 of the Constitution.” On consideration, I find no force in the contention raised by the learned counsel for the appellant. It is well settled law that all instructions are prospective. The retrospective effect can be given to welfare legislation, as the legislature is competent to frame law with retrospective effect. The administrative authorities do not have any such power of issuing instructions with retrospective effect. Otherwise also the reading of instructions show that in order to be covered under these instructions, the employee was required to file an undertaking with the Board, undertaking therein, to have benefit under the scheme instead of compensation under the Workmen's Compensation Act, 1923. The stipulation imposed under the instructions cannot be implemented to cases of the employees who had died prior to coming into force of these instructions, therefore, by no stretch of imagination R.S.A. No. 301 of 2008 (O&M) -5- these instructions could be treated to have retrospective effect. The plaintiff/appellant has already taken benefit under the Workmen's Compensation Act and the instructions/policy in force at the time of death of her husband. The substantial question of law is, therefore, answered against appellant. In view of finding recorded, the second question regarding limitation, need not be gone into, as the plaintiff/appellant has not been held entitled to relief, on merits. Dismissed in limine. (Vinod K. Sharma) Judge May 30, 2009 R.S.