Supreme Court of India

Smt. Poonamal Etc. Etc vs Union Of India And Ors on 30 April, 1985

Equivalent citations: 1985 AIR 1196, 1985 SCR (3)1042, AIR 1985 SUPREME COURT 1196, 1985 LAB. I. C. 950, 1985 SCC (L&S) 802, (1985) 2 LAB LN 296, 1985 (3) SCC 345

Author:
D.A. Desai

Bench:
D.A. Desai
,
Misra Rangnath

PETITIONER:
SMT. POONAMAL ETC. ETC.

Vs.

RESPONDENT:
UNION OF INDIA AND ORS.

DATE OF JUDGMENT30/04/1985

BENCH:
DESAI, D.A.
BENCH:
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]
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]

JUDGMENT:

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
widows of erstwhile Government servants who are not in
receipt of family pension.

Family pension came to be conceptualised 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
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
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."
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 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
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.

M.L.A. Appeal allowed