Smt. Kaushal Rani Jain vs Deputy Director Of Education ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
									AFR										RESERVED
 
Court No. - 58
 

 
Case :- WRIT - A No. - 11907 of 2007
 

 
Petitioner :- Smt. Kaushal Rani Jain
 
Respondent :- Deputy Director Of Education (Ist) & Another
 
Counsel for Petitioner :- Pankaj Bharti
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble B. Amit Sthalekar,J.

This writ petition has been filed by the petitioner seeking quashing of the Regulation 24(1) of Uttar Pradesh Rajya Sahayata Prapt Shiksha Sansthaon Ke Karmchariyon Ki Anshdayee Bhavishya Nidhi, Bima Pension Niyamawali, 1964 (hereinafter referred to as Regulation, 1964 only).

This writ petition has been filed by the widow of late Jagdish Prasad Jain who was an Assistant Teacher in Sir Sadilal Intermediate College, Mansoorpur District Muzaffar Nagar. Her husband died on 25.9.1987 while still in service after having served the College for 27 years one month and 25 days. He is stated to have drawn a salary of Rs. 2,060/- as last drawn salary. Under the Regulation, 1964, the petitioner-widow was receiving family pension of Rs. 198/- per month which was allowed to her only for a period of 10 years since 29.9.1987 to 24.9.1997 in terms of Regulation 24(1) of the Regulation, 1964.

The petitioner has challenged the validity of the said Regulation 24(1) of the Regulation, 1964 on the ground that the fixation of payment of family pension for a period of 10 years only was wholly illegal and arbitrary and did not have any nexus with the act and object of the Rules or with the very purpose and object of providing financial relief to the widow of a deceased government employee by way of pension. Regulation 24(1) of the Regulation, 1964 reads as under:

^^¼1½ ifjokj isU'ku tks uhps mifu;e ¼2½ esa fufnZ"V /kujkf'k ls vf/kd u gks ml deZpkjh ds ifjokj dks nl o"kZ rd Lohd`r dh tk ldrh gS ftldh e`R;q de ls de chl o"kZ dh vgZdkjh lsok iwjh djus ds ckn ;k rks lsok esa jgrs gq, gqbZ gks vFkok lsok fuo`Rr ds ckn gqbZ gksA

fdUrq izfrcU/k ;g gS fd fdlh Hkh n'kk esa ifjokj isU'ku ds Hkqxrku dh vof/k ml fnukad ls tc e`r deZpkjh us vf/ko"kZ dh o; izkIr dj yh gksrh] 5 o"kZ dh vof/k ls vf/kd u gksxhA

fVIi.kh& mu n'kkvksa esa] ftuesa vgZdkjh lsok fu/kkZfjr U;wure vof/k ls de gks bl deh dh ekQh ugha nh tkuh pkfg,A^^

Perusal of clause (1) of the Regulation, 1964 shows that the family pension thereunder would be admissible for a period of 10 years for such persons who had completed at least 20 years of service or who had expired after attaining the age of superannuation.

I have heard Shri Pankaj Bharti, learned counsel for the petitioner and Shri Mata Prasad, learned Additional Chief Standing Counsel for the respondents.

Learned counsel for the petitioner has assailed the validity of Regulation 24(1) on the ground that the same imposes a wholly arbitrary time period of 10 years for the grant of the benefit of family pension which does not serve any purpose by way of financial relief to a widow of a government servant beyond the period of 10 years.

In the counter affidavit, the respondents have only justified the provisions of Regulation 24(1) of the Regulation, 1964 and have reiterated that family pension would be payable only for a period of 10 years.

Learned counsel for the petitioner placed reliance upon a judgment of a learned Single Judge in the case of Smt. Parwati Pande Vs. State of Uttaranchal and others reported in 2004 (1) U.D., 603 wherein the learned Single Judge referring to the decision of the Supreme Court has held the provisions of restricting the payment of pension only for a period upto 10 years to be illegal and arbitrary and quashed the said G.O. dated 17.12.1965.

In (1983) 1 SCC 305 D.S. Nakara and others Vs. Union of India, a Constitution Bench of this Court has held that pension to civil employees of the Government and defence personnel as administered in India appear to be a compensation for service rendered in the past. It has been held that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer nor an ex-gratia payment. This 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. Paragraphs 20, 28 and 29 of the said judgment read as under:

"20. The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar & Ors. (1) wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion. It is only for the purpose of 182 quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab & Anr. v. Iqbal Singh.

21. .......

22. .......

23. .......

24. ......

25. ......

26. ......

27. ......

28. 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 Douge v. Board of Education(1) 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 serves 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.

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 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 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."

Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Considering the provisions of Article 21 of the Constitution of India and in the light of the law laid down by the Supreme Court in D.S. Nakara (Supra) case, I am of the view that providing the benefit of pension for a period of 10 years only is anathema to the very concept of granting of financial benefit to a person to whom family pension is being paid on account of death of bread winner, in this case the widow of the government employee.

When the government servant enters into government service he at least has this much has confidence that after completion of his service he would be entitled to pension and in case he dies then even after his death his widow would be adequately looked after and have financial security and would not have to go to a begging for want of financial relief or for reasons that the family may otherwise fall upon financial bad times. It is this confidence at the back of the mind of the government servant that he gives his best in the service of the government. It does not appear to be fair that this confidence of a government servant should be shaken after his death by some specious notion of the government that such benefit of family pension should be made available to the widow of the deceased employee only for a period of 10 years. Such a condition presupposes that the widow of the deceased employee would not be in need of family pension at the end of 10 years. Does it then imply that the widow should appeal to her sons or son-in-law or to the public at large which we would call begging in order to sustain herself and to lead a life of bare minimum dignity? This cannot be said to be the intent and purpose of a Welfare State. This constitutional obligation which the State owes to the widow of a deceased of a government servant cannot be wished away at the end of 10 years and must be treated as a solemn obligation to continue till the end of the life of the widow or in the case of minors till the dependent minors attain the age of majority.

The Supreme Court in (1985) 3 SCC 345 Smt. Poonamal and others Vs. Union of India and others in paragraph 7 held as under:

"7. 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., State of Punjab & Anr. v. Iqbal Singh 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, 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."

However, while the Scheme providing for family pension is in itself laudable but the offending portion in Regulation 24(1) of the Regulation, 1964 providing for applicability of the pension for only 10 years must necessarily be severed for the rest of the Regulation 24 by reading down the said regulation.

In D.S. Nakara (supra) the Supreme Court considered the matter of reading down the Rule and applying the doctrine of severability in paragraph 58, 59 and 60 and held as under:

"58 .......... If from the impugned memoranda the event of being in service and retiring subsequent to specified date is severed, all pensioners would be governed by the liberalised pension scheme. The pension will have to be recomputed in accordance with the provisions of the liberalised pension scheme as salaries were required to be recomputed in accordance with the recommendation of the Third Pay Commission but becoming operative from the specified date. It does therefore appear that the reading down of impugned memoranda by severing the objectionable portion would not render the liberalised pension scheme vague, unenforceable or unworkable.

59. In reading down the memoranda, is this Court legislating? Of course 'not' When we delete basis of classification as violative of Article 14, we merely set at naught the unconstitutional portion retaining the constitutional portion.

60. We may now deal with the last submission of the learned Attorney General on the point. Said the learned Attorney-General that principle of severability cannot be applied to augment the class and to adopt his words 'severance always cuts down the scope, never enlarges it'. We are not sure whether there is any principle which inhibits the Court from striking down an unconstitutional part of a legislative action which may have the tendency to enlarge the width and coverage of the measure. Whenever classification is held to be impermissible and the measure can be retained by removing the unconstitutional portion of classification, by striking down words of limitation, the resultant effect may be of enlarging the class. In such a situation, the Court can strike down the words of limitation in an enactment. That is what is called reading down the measure. We know of no principle that 'severance' limits the scope of legislation and can never enlarge it. ............"

Therefore when the provisions of Rule 24(1) of the Regulation, 1964 are considered and examined in the light of the law laid down by the Supreme Court and the constitutional obligation owed by the State to its employees it must be held that the restrictive condition of a period of 10 years for availing the family pension is wholly illegal and arbitrary and violative of the provisions of Article 21 of the Constitution of India which are sacrosanct and therefore any such restrictive provision cannot survive.

Therefore, in this view of the matter a mandamus is issued to the respondents to make available the benefit of family pension as contemplated under Rule 24(1) of the Regulation, 1964 to the petitioner during her life time and she shall also be entitled to all arrears of family pension.

The writ petition stands allowed of in the light of the observations made herein above.

Dated: 19th, May, 2015.

o.k.