Andhra Pradesh High Court - Amravati
M Sujatha vs State Of Andhra Pradesh, on 5 March, 2021
Bench: M.Satyanarayana Murthy
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
W.P.Nos.19671, 19450, 20479, 20521, 20826, 20955, 22207,
22791, 22809, 23304, 23356, 23815, 24380, 24717 and 25151
of 2020 and W.P. Nos.1852, 2402, 2490, 2618, 2702, 3083,
3127, 2743, 2764, 566, 3654, 3699, 3266, 4499, 4958, 4881
and 4882 of 2021
W.P.No.19671 of 2020
Between:
G.V.Seshamamba and 8 others.
... Petitioners
And
The State of Andhra Pradesh,
Represented by its Principal Secretary,
Finance (HR III - Pension) Department,
Secretariat Buildings, Velagapudi,
Guntur District and 10 others
... Respondents.
JUDGMENT PRONOUNCED ON 05.03.2021
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? - Yes -
2. Whether the copies of judgment may be
marked to Law Reporters/Journals - Yes -
3. Whether Their Ladyship/Lordship wish to
see the fair copy of the Judgment? - Yes -
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WP No.19671_2020 and batch
2
* THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
+ W.P.Nos.19671, 19450, 20479, 20521, 20826, 20955, 22207, 22791,
22809, 23304, 23356, 23815, 24380, 24717 and 25151 of 2020 and W.P.
Nos.1852, 2402, 2490, 2618, 2702, 3083, 3127, 2743, 2764, 566, 3654,
3699, 3266, 4499, 4958, 4881 and
4882 of 2021
W.P.No.19671 of 2020
% 05.03.2021
# G.V.Seshamamba and 8 others.
....Petitioners
v.
$ The State of Andhra Pradesh,
Represented by its Principal Secretary,
Finance (HR III - Pension) Department,
Secretariat Buildings, Velagapudi,
Guntur District and 10 others
.... Respondents
! Counsel for the Petitioners : Sri Karanam Ramesh
Counsel for Respondents: Sri Aswartha Narayana.
Government Pleader for Services - I
<Gist :
>Head Note:
? Cases referred:
1. 1971 (2) SCC 330
2. (1976) II LLJ 377 SC
3. (2006) 10 SCC 337
4. (2016) 6 SCC 408
5. (2003) 12 SCC 293
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6. AIR 1985 SC 356
7. AIR 2006 SC 2145
8. (1978) 2 SCC 196
9. (2007) 5 SCC 437
10. AIR (1968) 1 SCR 111
11. AIR 1988 SC 1681
12. AIR 1980 Karnt 207
13. 1999(3)SLR372
14. AIR 1959 SC 896
15. AIR 1991 SC 1933
16. AIR 1989 SC 989
17. AIR 1981 SC 411
18. (1967)ILLJ698SC
19. [1977]2SCR28
20. AIR 1989 SC 1133
21. 1961CriLJ773
22. [1981]2SCR742
23. AIR 1988 SC 2255
24. [2001]2SCR927
25. [2001]3SCR641
26. AIR1997SC1446
27. [2001]252ITR1(SC)
28. AIR2003SC4355
29. AIR2004SC1559
30. [1982]1SCR1137
31. [2002]3SCR948
32. 1971CriLJ680
33. 2000 (2) WLN 574
34. 2005 (2) AWC 1191
35. (1976) IILLJ 377 SC
36. ILR 1967 Punj & Har 278
37. AIR 1983 SC 130
38. Civil Appeal No.1677-1678 of 2020 dated 18.02.2020
39. (2013) 12 SCC 210
40. (2006) 7 SCC 651
41. Civil Appeal No.6156 of 2013 dated 07.08.2020
42. W.P.No.2630 of 2014 dated 16.02.2016
43. W.P.No.352 of 2014 dated 27.11.2015
44. AIR 1960 SC 932
45. AIR 1978 SC 597
46. AIR1986SC180
47. (1991)ILLJ395SC
48. AIR 1999 SC 1416
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49. (2012) 3 Mah.L.J 126
50. W.P.No.3208 of 2011 dated 08.12.2014
51. 1993 (0) MPLJ 663
52. AIR 1956 SC 479
53. AIR 1955 SC 25
54. 1955 (1) SCR 599
55. AIR 1959 SC 149
56. AIR 1967 SC 52
57. AIR 1982 SC 33
58. AIR 2003 SC 250
59. AIR 2013 SC 565
60. (2003)1SCC184
61. ( 1991 ) 1 SCC 725
62. 2020 (5) ALT77
63. 2017 (2) ALT 485 (D.B)
64. (1993) 3 Supreme Court Cases 259
65. [1978] 2 SCR 272 at 308F
66. AIR 1967 SC 1269
67. AIR2016SC33
68. (1974)ILLJ172SC
69. AIR1951SC41
70. AIR1958SC538
71. (2012) 11 SCC 1
72. (2015) 1 SCC 1
73. (1975) 2 SCC 840
74. AIR 1994 SC 2623
75. [1994] 1 AC 486 (HL)
76. (2003) 4 SCC 289
77. 1997(7) SCC 592
78. (2001) 3 SCC 635
79. (2000) 5 SCC 471
80. (2000) 8 SCC 262
81. (1949) 338 US 604 (617)
82. (2011) 1 SCC 640
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THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
W.P.Nos.19671, 19450, 20479, 20521, 20826, 20955, 22207,
22791, 22809, 23304, 23356, 23815, 24380, 24717 and 25151
of 2020 and W.P. Nos.1852, 2402, 2490, 2618, 2702, 3083,
3127, 2743, 2764, 566, 3654, 3699, 3266, 4499, 4958, 4881
and 4882 of 2021
COMMON ORDER:
In all the writ petitions either widowed daughter or divorced
daughter of deceased retired Government Servant are the
petitioners, filed these petitions under Article 226 of the
Constitution of India for issue of Writ of Mandamus to declare the
G.O.Ms.No.152 Finance (HR.III - Pension) Department dated
25.11.2019 in so far as amendment made to G.O.Ms.No.315
Finance (Pension-I) Department, dated 07.10.2010 under Para No.5
of the said G.O. prescribing the eligibility to receive family pension
up to the date of their children becoming majors and up to 45
years w.e.f issuance of G.O.Ms.No.315 Finance (Pension-I)
Department dated 07.10.2010 as illegal, arbitrary, capricious,
whimsical, resulting in violation of Article 14, 21 and 300-A of the
Constitution of India and consequently set aside the said
G.O.Ms.No.152 Finance (HR-III Pension) Department dated
25.11.2019 in so far as amendment made to G.O.Ms.No.315
Finance (Pension-I) Department dated 07.10.2010 under Para No.5
of the said G.O prescribing the eligibility to receive family pension
up to the date of their children becoming majors and up to 45
years w.e.f issuance of G.O.Ms.No.315 Finance (Pension-I)
Department dated 07.10.2010.
In all these petitions, the plea of the petitioners and the
respondents is one and the same. Therefore, I find that it is
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expedient to decide all these petitions by common order treating the
Writ Petition No.19671 of 2020 as leading case.
The petitioners impugned G.O.Ms.No.152 Finance (HR.III -
Pension) Department dated 25.11.2019 in all the writ petitions. The
petitioners in Writ Petition No.19671 of 2020 and other petitioners
are dependents on their parents due to divorce dissolving the
marriage between the petitioners and their husbands or due to
demise of their husbands. They were receiving family pension being
the dependents on father/mother, who served as Government
Servant and retired from service, as per their eligibility in terms of
G.O.Ms.No.315 Finance (Pension-I) Department dated 07.10.2010.
While the matter stood thus, an arbitrary decision as taken by the
State and issued G.O.Ms.No.152 Finance (HR.III - Pension)
Department dated 25.11.2019 amending G.O.Ms.No.315 Finance
(Pension-I) Department dated 07.10.2010 disabling the
widowed/divorced daughter being family pensioners, who attained
the age of 45 years or whose children became majors. By virtue of
G.O.Ms.No.315 Finance (Pension-I) Department dated 07.10.2010
all the petitioners became eligible for family pension being
dependents on their parents, who died after their retirement as
government servant on fulfilment of various other conditions as
prescribed in the G.O.Ms.No.315 dated 07.10.2010. All the
petitioners drawing family pension basing on the recommendations
of the concerned department, in which their parents served and
retired thereafter. The details of grant of pension in writ petition
No.19671 of 2020 are given hereunder in the table.
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Sl. Name Authority Date of grant P.P.O No. Date of Statu
No. Recommend of Pension Paymen s
ed F.P. t made
w.e.f
1 G.V.Sesham Mandal A.G.(A&E) A.P. P.P.O.No.1 FP Divorc
amba, D/o Education vide letter 7- payabl; ee
late Officer, No.PAG 0044/46/F e from daugh
G.Seshaiah M.P.D.O vide (A&E)/AP/P P payable 04.11.2 ter
(Retd. letter 18/II/S- at 015 up
Teacher), No.A5/1742 2287/SP Prakasam to NIL
aged about 4/90 dated 1315/1991-
62 years 14.10.2016 01, dated
14.10.2016
2. T.Bargavi Commission A.G.(A&E) A.P. P.P.O.No.1 Payable Wido
Devi, D/O er, Ongole vide letter 7- from wed
Late Municipality No.PAG 004014//F 07.10.2 daugh
P.Subbaraya vide letter (A&E)/AP/P P - STO, 010 up ter
Sarma, Retd. No.3556/C2 18/I/S- Ongole to NIL
Telugu /2010 dated 578/SP
Pandit Gr.I, 23.10.2012 3/7/1989-
aged about 90/5789,
55 years dated
01.02.2015
3 B.Venkata PPU, Govt. A.G. vide PPO No.17 Payable Wido
Lakshmi, Hospital, letter AG - from wed
D/O Late Giddaluru (A&E) 024458/FP 17.06.2 daugh
D.Venkatam letter A.P./P5/IV/V- Prakasam 014 ter
ma, MNp./SPL/ 1389/SP/
Retd.Theater PLEN/2016, 769/2010-
Assistant, dated 11/2672
aged about 13.10.2016 dated
51 years 19.12.2016
4 P.Sailaja, Head A.G. Vide PPO No.17- Payable Wido
D/o I.Subba Master, ZPH letter No.AG 004270FP from wed
Rao, school, (A&E)/AP/P18 STO 05.05.2 daugh
Retd.Gr.I Marella, /II/ S- Addanki 013 ter
Telugu Undlamru 2187/SP
Pandit, aged Mandal, 1293/d 1989-
about 57 Prakasam 90 / 4879,
years District Vide dated
latter No.NIL 05.03.2015
dated NIL
5 Revu MEO, A.G. (A&E) AP PPO.No.17- FP Wido
Dhanalaksh Kothapatna vide letter 004657/FP payable wed
mi m, vide letter No.PAG - STO from Daug
D/o.Late NO.SP/MEO (A&E)/AP/P18 Ongole 12.02.2 hter
P.Venkatesw /80 dated /II/V- 017
arlu, 08.05.2018 682/SP1100/
Retd. 88-89/872,
Secondary dated
Gr. Teacher, 01.06.2018
Aged about
49 years
6 N.Prameela Dy.Conserva A.G. (A&E) PPO NO.17 FP Wido
D/o Late tor of Forest, A.P/P7/IV/S- - payable wed
Sriramulu, Markapur 2983/SP 004674/FP from daugh
Rtd.Dy.Fores (WL) DVN 1017/1992- STO 25.11.2 ter
t Range letter 03 2219, Markapur 015
Officer, aged No.106/201 dated
about 46 7/A3 dated 27.06.2018
years 24.05.2018
7 N.Naga Commission AG Vide letter PPO No.17 FP Wido
Vasundhara er and No.PAG - Payable wed
D/o Late Director of (A&E)/AP 004179/FP from Daug
Nagaprasad College P16/IV/N- /STO 07.12.2 hter
Retd.Lecture Education, 706/SP Ongole 012
r in P.Ed., Hyderabad 537/2008-
aged about vide letter 09/377 dated
50 years No.520/A3/ 22.05.2014
2014 dated
24.04.2014
8 K.Rajeswari Commission AG vide letter PPO No.17 Payable Wido
D/o er, Ongole No.AG - from wed
A.Krishna Municipality (A&E)/AP/P 004579/FP 23.06.2 daugh
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Murthy, vide letter 18/HK/K- /SBI 015 ter
Retd. No.2546/20 998/SP Ongole
Teacher 16, dated 473/1994-
aged about 17.07.2017 12/2243,
56 years dated
27.09.2017
9 P.Sashikala Dy.Educatio AG Vide letter PPO No.17 Payable Divorc
D/o Late nal Officer, No.AG (A&kE) - from ee
B.Mary, Partur Letter AP/P.18/II/M 004257/FP 17.08.2 daugh
Retd. No.NIL, -44/SP STO - 013 ter
Teacher, dated 766/1984- Chirala
aged about 22.12.2014 85/3755
59 years dated
29.01.2015
Rule 50 of the Andhra Pradesh Revised Pension Rules, 1980
contemplates the scheme of family pension payable to the family
members of the retired Government Servant. Rule 50 (12) (b) defines
family in relation to the Government Servant. As per the said
scheme, the family of the deceased Government Employee either
retired or in service entitled to monthly family pension as prescribed
under the Rules. The said Rule contemplates various types of family
members eligible for Family Pension. While it is so, the Government
of Andhra Pradesh vide G.O.Ms.No.438 GA (Spl A) Department,
dated 07.07.2008 was pleased to constitute Ninth Pay Revision
Commission. The said commission after due consideration of the
existing Family Pension Rules and orders of Government of India
vide O.M.F No.38/37/2008-P&PW(A), dated 02.09.2008 of Ministry
of Personal and Public Grievances and Pensions, Department of
Pension and Pensioners welfare, New Delhi and requests of various
associations has made certain recommendations in respect of
sanction of family pension. The said recommendations are
reproduced in Para No.3 of G.O.Ms No.315, Finance (Pension-1)
Department, dated 07.10.2010.
Basing on such recommendations, the Government of Andhra
Pradesh has divided the eligible beneficiaries of family pension into
two categories as mentioned in Para No.5 of the above mentioned
G.O. Now, in the present cases, the petitioners herein fall under
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Category-II, Clause-I and were securing family pension granted
under various orders.
The Government of Andhra Pradesh while issuing
G.O.Ms.No.315, Finance (Pension-1) Department, dated 07.10.2010
has prescribed a condition to the effect that the family pension will
be paid up to the date of marriage or re-marriage or till the date she
starts earning or up to the date of death whichever is the earliest,
subject to fulfilment of various other conditions mentioned therein
and fulfilment of procedural requirements. In order to grant family
pension to all the categories of pensioners as contemplated under
Para No.4 of the said G.O, the definition of family as contemplated
under Rule 50(12)(b) was also substituted with an amendment
brining all the categories of persons mentioned above under the
definition of family.
In pursuance of G.O.Ms.No.315 Finance (Pension-I)
Department dated 07.10.2010 the petitioners herein were drawing
pension as per the Rules applicable. While it is so, respondent No.1
herein issued impugned G.O.MsNo.152 Finance (HR III - Pension)
Department, dated 25.11.2019 brining certain amendments to the
eligibility criteria to the persons falling under Category-Il prescribing
the age limit up to 45 years and also children of pensioners
becoming majors on completion of 18 years as bar for drawing
pension, the said amendment is given retrospective effect from issue
of G.O.Ms No. 315, Finance (Pension-1) Department, dated
07.10.2010. The said amendment prescribing the age limit and also
children attaining majority as on the date of eligibility as bar for
drawing pension with retrospective effect is without any rationale
basis and whimsical. Most of the petitioners were granted family
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pension as per G.O.Ms.No.315 Finance (Pension-I) Department
dated 07.10.2010 even after completion of 45 years as there was no
such condition prescribed in the said G.O. Any statutory benefits
cannot be given retrospective effect as held by various decisions of
the High Court as well as Supreme Court of India from time to time
for the reason that the rights accrued under a particular statute
cannot be taken away by amending the statute with retrospective
effect. All the amendments to the statues are presumed to be
effective prospectively unless it is specifically made retrospectively.
G.O.Ms.No.152 dated 25.11.2019 was issued amending the
eligibility criteria with retrospective effect specifically under para
No.7 of the said G.O. is beyond the amending powers of the
Government as it takes away the right accrued under
G.O.Ms.No.315 dated 07.10.2010. The retrospective amendments to
the statues can only be made with regard to procedural laws but not
the substantial laws which confer certain rights to the citizens.
Therefore, the said G.O. is nothing but whimsical and capricious
apart from highly arbitrary and beyond the amending power of the
State, resulting in violation of Article 14 and 21 of the Constitution
of India.
G.O.Ms.No.152, dated 25.11.2019 is also illegal and arbitrary
for yet another reason that, it also result in unreasonable
classification of the dependant widowed or divorced daughters of
retired employees basing on the age without any rational basis or
object sought to be achieved. In fact such classification goes contrary
to very object of the scheme without any intelligible differentia. It is
necessary to mention here that, a widowed or divorced daughter of a
retired servant who are dependents on their parents cannot be
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classified on the basis of age or on the basis of age of their children,
unless such dependents become self sufficient for their livelihood
either by way of self earnings or earnings of their children. However,
the G.O.Ms No.152, dated 25.11.2019 has been issued brining an
amendment to G.O.Ms.No.315 debarring category-II of the family
pensioners by prescribing age limit for drawing family pension as 45
years and their children completing 18 years. Both the conditions
are not only irrational and illogical but also whimsical and arbitrary.
Therefore, classification of divorced/widowed daughters of retired
public servants who are dependents of their parents into two classes
without any nexus to the object sought to be achieved and without
any basis is forbidden by Article 14 of the Constitution of India.
Even assuming but not admitting that amendment brought
into force prescribing the age limit of the family pensioners as 45
years and their children who becomes majors on crossing 18 years
as on the date of eligibility as bar for drawing pension with
retrospective effect by issuing impugned G.O.Ms No. 152, dated
25.11.2019 without amending the definition of "Family" as defined
under Clause-b of Rule 12 of Andhra Pradesh Revised Pension Rules,
1980 is also erroneous for the reason that so long as all the
widowed/divorced daughters comes under the said definition, cannot
be denied family pension subject to fulfilment of various other
conditions. Therefore, the impugned G.O is unsustainable.
In all these petitions, the respondents have issued notices in
the month of December, 2019/January, 2020 asking the petitioners
herein to furnish the particulars to regularize the payment of family
pension as per the above mentioned G.O.Ms.No.152, dated
25.11.2019. On receipt of such notice, all the petitioners are
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furnished all the particulars along with necessary documents. After
receiving the information and documents furnished by the
petitioners, the respondents No.8, 10, 11 have only given an
intimation vide proceedings dated 03.10.2020, stopping the payment
of family pension with cyclostyled notice to all the petitioners herein
without even issuing a show cause notice or an opportunity and
without examining the issue with objectivity. Therefore, the stoppage
of payment of family pension made under G.O.Ms No. 152, dated
25.11.2019 is unsustainable.
Pension is not a bounty payable on the sweet will and pleasure
of the Government. The said term is not defined in Andhra Pradesh
Revised Pension Rule, 1980 and as such necessarily the petitioners
will have to fall back on Article 366(17) of Constitution of India which
defines the terms "Pension" as follows.
"Pension" means, whether contributory or not, of any kind whatsoever,
payable to or in respect of any person, and includes retired pay so payable, a
gratuity so payable and any sum or sums so payable by way of return, with
or without interest thereon or any other addition thereto, of subscriptions to
a provident fund".
Therefore, the pension is being paid out of such subscription
and as such it is a right and its payment does not depend on
discretion of the Government as held by Hon'ble Apex Court as well
as High Courts in catena of decisions right from "Deoki Nandan
Prasad v State of Bihar1". The said aspect has been reaffirmed in
"State of Panjab v Iqbal Singh2". Therefore, the Government
cannot debar the petitioners herein from availing family pension on
unreasonable and irrational grounds.
1
1971 (2) SCC 330
2
(1976) II LLJ 377 SC
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The respondents have not issued any show cause notice or
provided an opportunity before stopping the payment of family
pension for the month of September, 2020 intimating the same by
proceedings dated 03.10.2020 stating that payment of family
pension is being stopped in view of amendment made to
G.O.Ms.No.315 dated 07.10.2010 by issuing G.O.Ms.No.152 dated
25.11.2019 prescribing the age limit for family pensioners as 45
years with children crossing 18 years. It is also necessary to state
here that a memo dated 17.03.2020 was also issued by respondent
No.1 clarifying that family pension shall not be discontinued merely
an account of attaining age of 45 years. It is necessary to mention
here most of the petitioners have no children and living alone
without any source of income for their livelihood, having lost their
parents on whom they were dependents and family pension of their
late parents is the only source of their livelihood. However, without
having due regard to the said clarification, respondents Nos.8 to 11
have stopped payment of family pension for the month of September,
2020 which was due to be paid on 1st October, 2020, as such
stoppage of pension to the petitioners is in violation of principles of
natural justice and also contrary to clarification issued by the
Government under Para 3(111) of Memo No.1074035/FINO
1HROMisc/3/2020-HR-3, dated 17.08.2020.
The family pension to the members of Government servants is
being paid out of contributions made by the public servant during
his service towards Provident Fund as can be ascertained from the
definition given under Article 366(17) of the Constitution of India and
to mitigate the hardship caused to family members of the retired
government servant on their demise. Therefore, prescribing age limit
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for the family pensioners and to their children do not indicate, how
such prescription would sub-serve the purpose for which the family
pension is being paid. Therefore, stoppage of family pension to those
persons who crossed 45 years of age would be ridiculous and
meaningless for the reason that the need for resources would
increase once they get older by age, in view of increase in the
personal needs and also various health issues. Hence, stoppage of
payment of family pension has virtually driven the petitioners to
serious fiscal crisis to lead their day to day life with human dignity.
However, without having any regard or concern for various aspects of
the human life, the impugned G.O.Ms.No.152 dated 25.11.2019 was
issued and the same is quite whimsical and capricious, requested to
set aside same.
Respondents filed counter denying the material allegations
while admitting issuance of G.O.Ms.No.315 Finance (Pension-I)
Department dated 07.10.2010, and amendment to Rule 50 of the
Andhra Pradesh Revised Pension Rules, 1980 and issuance of
G.O.Ms.No.152 Finance (HR.III - Pension) Department dated
25.11.2019 imposing certain restrictions on the eligibility of children
of deceased employees to claim family pension etc.
In the process of implementing the above orders certain
ambiguity has risen in respect of eligibility of Family Pension
under category -II and the Principal Accountant General (A & E)
has requested to clarify whether 45 years of age limit to be
reckoned
(a) On the date of the pension/Family Pensioner under
Category -1,
(b) On the date of application by Widowed/Divorced
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daughter since the number of family pension cases have been
received before the issue of Government Memo No.
34021/70/HR.V/2018, dated 11.07.2018 and the cases which
are received prior to the date of revised guidelines are to be
finalized in exception of above order.
At this juncture, the Government issued clarificatory orders
vide G.O.Ms. No.l52, Finance (HR. III- Pension) Department,
dated 25.11.2019, providing the procedural guidelines to sanction
family pension to the Widowed/divorced and unmarried daughter
under category - II as amendment to G.O.Ms.No.315 Finance
(Pension -I) department dated 07.10.2010 and G.O.Ms.No.231
Finance (Pension-I) Department dated 08.08.2008.
As per para 5 (1) of the G.O.Ms.No.152 dated 25-11-2019, the
restriction of age limit upto 45 years is applicable to the
Widowed/Divorced daughter under category - II as on the
eligibility commences on or after the date of ceasing the eligible
family pension to the family members in the category -I,
having no children or with minor children is eligible to receive
family pension upto the date of remarriage/till the date she
starts earning/anyone of her children become Major or upto the
date of death whichever is the earliest, provided they are wholly
dependent on the employee/pensioner and these clarifications are
issued to G.O.Ms. No.315 Finance (Pension-I) Department dated
07-10-2010 read with the procedural guidelines issued in
G.O.Ms.No. 353, Finance (P.S.C) Department dated 04-12-2010
and applicability of the above clarification is with effect from
the date of issue of G.O.Ms.No.315, Finance (Pension-I)
Department dated 07.10.2010.
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The Government issued further clarification that the Family
pension shall not be discontinued merely on account of attaining
the age of 45 years nonetheless once the Family Pension under
Category -II become eligible fulfilling the criteria, the family
pension shall be continued till they become non- eligible
(remarriage/starts earning/children become major) and further,
no recovery to be imposed for the past cases on detection of over
payment, if any vide Memo No.1074035/FINO1-
HR0MISC/3/2020-HR-III dated 17-08-2020.
The petitioners herein were sanctioned family pension in
terms of the G.O.Ms.No.315 dated 07.10.2010 and further,
competent authority reviewed the Family Pension in terms of
the clarification issued vide G.O.Ms.No.152 dated 25.11.2019
read with Memo No.1074035/FIN0I-HROMISC/3/2020-HR-III,
dated 17.08.2020. The concerned Assistant/Sub-Treasury
Officers have issued notices to the petitioners herein requesting
for submission of the documents as per GO.Ms.No.152 dated
25.11.2019 from the pensioners sanctioned for the widowed/
divorced daughter/unmarried daughter as per G.O.Ms.No.315,
dated 07.10.2010 and after scrutiny in terms of the Memo dated
17.08.2020, stopped family pension to the ineligible pensioners in
accordance with the above Government Orders.
Basing on the guidelines of G.O.Ms.No.315 dated 07.10.2010
and other Government Orders issued from time to time the
family pension to the pensioners has been extended as they are
under category-Il of the said G.O. Further, G.O.Ms.No.315
dated 07.10.2010 made applicable to the pensioners who
retired prior to 22.06.2004 i.e. retrospectively and the
eligible pensioners have got sanction of family pensions. In
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G.O.Ms.No.152 dated 25.11.2019, the age limit of 45 years and
other conditions are also ordered with effect from the date of issue
of GOMs.No.315 dated 07.10.2010. However, the respondents
reiterated that the Family pension shall not be discontinued merely
on account of attaining the age of 45 years, nonetheless once the
Family Pensioner under Category -II become eligible fulfilling all
the criteria, the family pension shall be continued till they become
non-eligible (remarriage/starts earning/Children become major)
and, no recovery to be imposed for the past cases on detection of
over payment, if any vide Memo No. 1074035/FIN01-
HR0MISC/3/2020-HR-III, dated 17.08.2020.
The Government have issued instructions and clarification
vide Memo.No.1074035/FIN01-HROMISC/3/2020/HR-iii, dated
17.08.2020 to the effect that
i) Family pension to the widowed/divorced daughters shall be
stopped to those who were authorized family pension after 45
years of their age. However no recovery to be imposed for the past
cases on detection of over payment, if any.
ii) All the cases of family pension authorized to all widowed/divorced
daughters are to be reviewed for the parameters of non-eligibility
(remarriage/starts earning lively hood/children become major).
Once they become non eligible, family pension shall be stopped
immediately. However, no recovery to imposed for the past cases
on detection of overpayments, if any.
iii) Family Pension shall not be discontinued merely on account of
attaining the age of 45 years.
iv) The eligible applicant should apply within a period of one year
from the date of death of family pensioner in category (One)-1
as per G.O.Ms.No.152 dated 07.10.2010. In the absence of date
of application in the proposals, the date of forwarding of the
proposals by the pension sanctioning authority should be taken as
date of application.
Finally, it is contended that the Government have provided
the benefit of payment of family pension to the widowed and
divorced daughters also vide G.O.Ms.No.315 dated 07.10.2010 as a
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18
policy decision. Taking a lenient view all the widowed/divorced who
1ead their lives peacefully till the date of issue of the G.O.Ms.315
have also applied for the benefit. Basing on the G.O. all such
person have got sanctioned and authorized the family pension. To
stop ineligible payment of pensions, the age restriction of 45 years
has been fixed vide G.O.Ms.No.152 dated 25.11.2019 subject to
condition with effect from the date of G.O.Ms.No.315 Finance
(Pension-I) Department, dated 07.10.2010. In the instant case, the
orders for stopping of pension to the ineligible family pensioner
(remarriage/starts earning/children become major/commenced
after crossing 45 years of age) have been received in the last week
of August, 2020 and pension stopped from September, 2020
payable in October, 2020 in terms of G.O.Ms.No.l52 Finance
(HR.III- Pension) Department dated 25.11.2019 read with Memo
.No.1074035/FINOI-HR0MISC/3/2020-HR-III dated 17.08.2020.
Therefore, the impugned Government Order to the extent of
imposing restrictions, cannot be set aside declaring the same as
illegal and arbitrary, requested to dismiss the writ petitions.
During hearing, Sri G.Vidya Sagar, learned senior counsel for
the petitioners, contended that the impugned Government Order is
only executive instructions issued in exercise of power under Article
162 of the Constitution of India, whereas G.O.Ms.No.315 Finance
(Pension-I) Department dated 07.10.2010, which enabled the
petitioners to claim family pension being widowed/divorced
daughter was issued by exercising power under Article 309 of the
Constitution of India. When a statutory guidelines were issued by
G.O.Ms.No.315 Finance (Pension-I) Department dated 07.10.2010,
by issuing executive instructions, the said G.O.Ms.No.315 dated
07.10.2010 cannot be amended and such executive instructions will
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not prevail over the statutory guidelines issued by exercising power
under Article 309 of the Constitution of India. Thereby, the
G.O.Ms.No.152 dated 25.11.2019 impugned in the writ petition to
the extent of invalidity stated in the writ petition is arbitrary and
illegal. He further contended that issuing Government Order giving
retrospective effect from the date of G.O.Ms.No.315 Finance
(Pension-I) Department dated 07.10.2010 takes away the valuable
vested right that accrued to the family pensioners i.e. widowed
daughter and divorced daughter of the deceased government
servant, is a serious illegality since the guidelines issued in
G.O.Ms.No.315 Finance (Pension-I) Department dated 07.10.2010
are substantive, not procedural.
Learned senior counsel further contended that the right to
receive family pension is a right in property and the petitioners
cannot be deprived of their right to enjoy the property except under
authority of law. The law means a law made by the parliament or
the State legislature. The executive instructions cannot be
construed as law made by parliament or State legislature. Therefore,
taking away such right to enjoy the property is violative of Article
300-A of the Constitution of India, thereby the impugned
Government order is liable to be declared as illegal, arbitrary and set
aside on this ground also.
It is further contended that no opportunity was afforded to the
petitioners before stoppage of pension except calling for details by
the Treasury department and stoppage of payment of family pension
to the petitioners without affording reasonable opportunity to
explain their difficulties is vioaltive of principles of natural justice.
Issue of G.O.Ms.No.152 Finance (HR.III - Pension) Department dated
25.11.2019 without taking into consideration, the difficulties being
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faced by the widowed or divorced daughters of the deceased
employees at the advanced age and increase of necessities due to
old age ailments or otherwise is illegal, arbitrary and violative of
Article 14 and 21 of the Constitution of India besides irrational and
not based on any reasonable classification since the family
pensioners, who are aged 45 years and above the age of 45 years
were divided into two separate classes without any rationale.
Therefore, discrimination of family pensioners based on age is not
based on any intelligible differentia and such discrimination is hit
by Article 14 of the Constitution of India. He relied on certain
judgments of Apex Court, which will be referred at appropriate
stage.
Learned Government Pleader for Services-I totally supported
the action taken by the State in issuing G.O.Ms.No.152 Finance
(HR.III - Pension) Department dated 25.11.2019 while contending
that the issue of G.O.Ms.No.152 Finance (HR.III - Pension)
Department dated 25.11.2019 is only clarification of certain issues
sought by the Treasury Department, clarifying issues regarding
payment of family pension to the persons, who crossed 45 years of
age and it is not an amendment to the subsisting rules and
guidelines issued under G.O.Ms.No.315 Finance (Pension-I)
Department dated 07.10.2010. Apart from that, the policy decision
taken by the State cannot be lightly interfered with, while this Court
exercising power under Article 226 of the Constitution of India. In
support of his contentions, he placed reliance on two judgments of
the Apex Court viz. "Ekta Shakti Foundation v. Government of
NCT, Delhi3" and "Centre for Public Interest Litigation v. Union
3
(2006) 10 SCC 337
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of India4".
On the strength of those judgments, it is contended that this
Court cannot interfere with the policy decision taken by the State
vide G.O.Ms.No.152 Finance (HR.III - Pension) Department dated
25.11.2019, requested to dismiss the writ petitions.
Considering rival contentions, perusing the material available
on record, the points that arose for consideration are:
(1) Whether the executive instructions will prevail over
the statutory rules? If so, whether the disability
created by paragraph No.5 of G.O.Ms.No.152 Finance
(HR.III - Pension) Department dated 25.11.2019 to
claim family pension by the widowed
daughter/divorced daughter is legal? If not, liable to
be set aside?
(2) Whether the State is entitled to deny the family
pension to the widowed daughter/divorced daughter,
who are entitled to claim pension under Rule 50,
Category II of the Andhra Pradesh Revised Pension
Rules, 1980 by issuing G.O.Ms.No.152 Finance (HR.III -
Pension) Department dated 25.11.2019? If so, whether
such restrictions would amount to violation of
fundamental right guaranteed under Article 14 and
21 of the Constitution of India and the Constitutional
right guaranteed under Article 300-A of the
Constitution of India, so also human right of a citizen
under Article 25 (1) of the Universal Declaration of
Human Rights?
(3) Whether the discrimination of widowed
daughter/divorced daughter who did not attain the
age of 45 years and the persons who attained age of
45 years is based on any rationale and intelligible
differentia and if not, whether such discrimination is
hit by Article 14 of the Constitution of India and the
G.O.Ms.No.152 Finance (HR.III - Pension) Department
4
(2016) 6 SCC 408
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dated 25.11.2019 is liable to be set aside?
P O I N T No.1:
The word 'pension' is not defined anywhere in the Andhra
Pradesh Revised Pension Rules, 1980 or any other rules relating to
payment of pension except under Article 366 (17) of the Constitution
of India.
In view of the undisputed facts, it is relevant to refer to
various provisions of Constitution and other allied laws.
The word "Pension" is defined under Article 366(17) of the
Constitution of India and it reads as follows:
"pension means a pension, whether contributory or not, of any
kind whatsoever payable to or in respect of any person, and
includes retired pay so payable, a gratuity so payable and any
sum or sums so payable by way of the return, with or without
interest thereon or any other addition thereto, of subscriptions to a
provident fund"
The definition of "pension:" as given in Article 366(17) is not all
pervasive. It is essentially a payment to a person in consideration of
past services rendered by him. It is a payment to a person who had
rendered services for the employer, when he is almost in the twilight
zone of his life. (vide Kerala State Road Transport Corporation v.
K.O. Varghese5)
Though Revised Pension Rules are in force in the State of
Andhra Pradesh, the word "Pension" is not defined in the Rules.
Thus, in view of the definition of "Pension", it is an amount
payable to a retired employee for the past service rendered by him to
the State. Such pension is the livelihood to a person who is in
twilight or at the dawn of life. If, for any reason, the pension is not
paid, it is hardly difficult to survive for the rest of the life, incurring
5 (2003) 12 SCC 293
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various expenditures at the old age whose health becomes
deteriorated on account of advanced age and thereby it is imperative
to incur substantial amount for their medical necessities and
maintenance. However, the State is competent to stop payment or
deduct pension of the state employees or their dependents by
authority of law for the public purpose. On account of stoppage of
payment of pension to divorced/widowed daughter en masse without
any ground mentioned in the counter affidavit filed by the State is
not justifiable action.
'Pension' can be deferred/withheld or stopped only in certain
circumstances enumerated under Rule 9 of the Andhra Pradesh
Revised Pension Rules, 1980 and it reads as follows:
9. Right of Government to withhold or withdraw pension :-
1 (1) The Government reserves to themselves the right of
withholding a pension or gratuity, or both, either in full or in
part, or withdrawing a pension in full or in part, whether
permanently or for a specific period and of ordering recovery from
a pension or gratuity of the whole or part of any pecuniary loss
caused, to the Government and to the local authority if, in any
departmental or judicial proceedings the pensioner is found guilty
of grave misconduct or negligence during the period of his
service, including service rendered upon re-employment after
retirement :
Provided that the Andhra Pradesh Public Service Commission
shall be consulted before any final orders are passed. 1
["However, consultation with Andhra Pradesh Public Service
Commission is not necessary, when the pensioner is found guilty
in any judicial proceedings".]
Provided further that a part of pension is withheld or withdrawn,
the amount of such pension shall not be reduced below the limit
specified in sub-rule (5) of Rule 45]
Provided also that the penalty of withholding of entire pension or
gratuity or both may be imposed against the retired Government
servant upon being found guilty or upon conviction in a court of
law for the offences of grave charges namely proved cases of
misappropriation, bribery, bigamy, corruption, moral turpitude,
forgery, outraging the modesty of women and misconduct."
(2)(a) The departmental proceedings referred to in sub-rule (1), if
instituted while the Government servant was in service whether
before his retirement or during his re-employment, shall, after
the final retirement of the Government servant, be deemed to be
proceedings under this rule and shall be continued and
concluded by the authority by which they were commenced in the
same manner as if the Government servant had continued in
service.
Provided that where the departmental proceedings are instituted
by an authority subordinate to the State Government, that
authority shall submit a report recording its findings to the State
Government.
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The Central Civil Services Conduct Rules are also provides
payment of pension to the widowed daughter and divorced daughter.
But the rules are silent as to what is the meaning of pension.
However, a bare look at the definition of pension under Article 366
(17) of the Constitution of India, it is an amount payable by an
employer to an employee or in respect of any person, and includes
retired pay so payable. The word employed in the definition "in
respect of any person" assumes importance for interpreting the word
"family pension". Pension is being paid on retirement to a
Government servant for the services he rendered, but in view of the
language employed in clause (17) of Article 366 of the Constitution
of India, the amount whatever payable to any person includes
pension payable to the deceased pensioner. 'Any person' refers to
dependents on deceased pensioner. Therefore, the inclusive
definition of pension under Article 366 (17) of the Constitution of
India covers family pension also.
The definition of pension under Article 366(17) of the
Constitution of India is not pervasive. It is essentially a payment to a
person in consideration of past services rendered by him/her or to
his/her dependents. It is a payment to a person who has rendered
service for the employer, when he is almost in the twilight zone of
his life. Pension is not only compensation for loyal service rendered
in the past, but it has also a broader significance, in that, it is a
measure of socio-economic justice which inheres economic security
in the field of life when physical and mental powers start ebbing
corresponding to the ageing 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 for which in days of
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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. Pension is not a bounty nor a
matter of grace depending upon the sweet will of the employer and it
creates a vested right subject to the statute, if any, holding the field.
Pension is not an ex gratia payment, but is a payment for the past
service rendered. 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 lurch. (See: "Kerala State Road Transport
Corporation v. K.O.Varghese" (referred above)
It was also held in the said judgment that in a strict sense,
pension is not a matter of contract and is not founded on any legal
liability; it is a mere bounty or gratuity 'springing from the
appreciation and consciousness of the sovereign' and it may be
given or withheld at the discretion by the sovereign.
It may be bestowed on such persons and on such terms as the
law-making body of the Government prescribes and it is, at the
most, an expectancy granted by the law (See: State of Kerala v.
M.Padmanabhan Nair6)
Pension is akin to right to property and it is correlated and
has a nexus with the salary payable to the employee as on the date
of retirement. (Vide: Raghavendra Acharya v. State of
6
AIR 1985 SC 356
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Karnataka7")
Though, the word 'pension' is not defined in any rules, on
relying on the inclusive definition of pension, it can be said that the
family pension is also part of pension.
State of Andhra Pradesh initially did not include family
pension under the rules for payment of pension to the dependents
consequent upon the death of pensioner, but by introducing Rule 50
in the Andhra Pradesh Revised Pension Rules, the persons entitled
to family pension is categorised into two. The petitioners in all these
petitions would fall within category-II. Under clause 12 (b) of Rule
50 of the Andhra Pradesh Revised Pension Rules, 1980 the word
'family' is defined as follows:
12 (b) "family" in relation to a Government servant means-
Category - I
(i) wife in the case of a male Government servant, or
husband in the case of a female Government servant.
Note 1 :- Wife and husband shall include respectively
judicially separated wife and husband.
Note 2 :- Where the appointing authority decides that for
reasons to be recorded in writing a child or children from a
judicially separated deceased female Government servant should
receive the family pension in preference to judicially separated
husband of the deceased Government servant such husband shall
not be regarded as covered by the expression 'family'.
(ii) Sons/daughters including such son/daughter adopted
legally before retirement or son/daughter born after retirement,
and also including physically/mentally disabled son/daughter.
Category - II:
(i) Unmarried/widowed/divorced daughter, not covered by
Category - I above,
(ii) Parents who were wholly dependent on the Government
servant when he/she was alive, provided the deceased employee
has left behind neither a widow nor a child.
Note: The period of payment of Family Pension and conditions
subject to which the family pension is payable, shall be as
specified in sub-rule (5) above.
Thus, unmarried daughter, widowed/divorced daughters are
7
AIR 2006 SC 2145
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deemed to be members of the part of the family and their
entitlement is subject to category-I. Payment of family pension is
always subject to clause (5) of Rule 50. According to clause (5), the
period for which family pension is payable is as follows:
"(5) The period for which family pension is payable shall be
as follows:-
Category-I:
A. (i) In the case of a widow or widower, upto the date of
death or remarriage whichever is earlier.
(ii) However, in the case of Childless widow of a deceased
Government employee, the family pension shall continue to be
paid even after her remarriage subject to the condition that the
family pension shall cease once her independent income from all
other sources becomes equally or higher than the minimum
family pension prescribed in the State Government from time to
time. The Family pensioner in such case would be required to
give a declaration regarding her income from other sources to
the pension disbursing authority once in every six months.
B. (i) In the case of a son until he attains the age of 25
years or starts earning whichever is earlier,
(ii) In the case of daughter until she attains the age of 25
years or she gets married or starts earning, whichever is the
earliest,
(iii) In the case of a son or daughter of a Government
servant is suffering from any disorder or disability of mind or is
physically crippled or disabled so as to render him or her unable
to earn a living even after attaining the ages of Son/Daughter as
specified in clause (i) and (ii) above the family pension shall be
payable to such son or daughter for life subject to the following
conditions, namely:
(a) If such son or daughter is one among two or more
children of the Government servant, the family pension shall be
initially payable to the Children in the order set out in clause (ii)
of sub rule (7) of this rule, until the last child attains the ages of
Son/Daughter as specified in clauses (i) and Gil above and
thereafter the family pension shall be resumed in favour of the
son or daughter suffering from disorder or disability of mind or
who is physically crippled or disabled and shall be payable to
him/her for life;
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(b) If there are more than one such child suffering from
disorder or disability of mind, or who are physically crippled or
disabled, the family pension shall be paid in the order of their
births and younger of them will get the family pension only after
the elder next above him/her ceases to be eligible;
(c) 'The benefit of family pension to physically crippled or
mentally disabled children, however, is only admissible in
respect of Government employees who are entitled to family
pension under this rule or under the rules specified in part II of
these rules:
(d) where the family pension is payable to such twin
children, it shall be paid to such twin children in equal shares:
Provided that when one such child ceases to be eligible,
his/her share shall revert to the other child and when both of
them cease to be eligible, the family pension shall be payable to
the next eligible single child/twin children.
[(e) the family pension shall be paid to such son or
daughter through the guardian as if he or she were minor except
in the case of the physically crippled son or daughter who has
attained the age of majority.;
(f) the handicap is of such a nature so as to prevent him or
her from earning his or her livelihood and the same shall be
evidenced by a certificate obtained from a Medical Board. The
pension sanctioning authority has to endorse the earning
capacity of claimant based on the certificate issued by the
Medical Board while sanctioning the pension.;)
(g) the person receiving the family pension as guardian of
such son or daughter, shall produce every three years a
certificate from a medical officer not below the rank of a Civil
Surgeon to the effect that he or she continues to suffer from
disorder or disability of mind or continues to be physically
crippled or disabled.
Explanations -
(i) The family pension payable to such son or daughter under
this sub-rule shall be stopped if he/she starts earning his/her
livelihood.
(ii) The family pension payable to such daughter under this
sub rule shall be stopped from the date she gets married;
(iii) In such cases, it shall be the duty of the guardian to
furnish a certificate to the treasury or bank, as the case may be,
every month to the effect that :
a. He/she has not started earning his/her livelihood;
b. In the case of a daughter, that she has not yet married
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Category-II :
A. In the case of Unmarried/ widowed/ divorced daughter,
not covered by Category-1 above, upto the date of marriage/
remarriage or till the date she starts earning or upto the date of
death whichever is the earliest, provided they are wholly
dependent on the employee/pensioner.
B. In the case of Parents who were wholly dependent on
the Government servant when he/ she was alive, upto the date
of death, provided the deceased employee has left behind neither
a widow nor a child.
NOTE (1):-Family Pension to unmarried/widowed/divorced
daughters and dependent parents specified in Category-II, shall
be payable only after the other eligible family members in
Category-I have ceased to be eligible to receive family pension
and there is no disabled child to receive the family pension.
NOTE (2):-Grant of family pension to children in respective
categories shall be payable in order of their date of birth and
younger of them will not be eligible for family pension unless the
next above him/her has become ineligible for grant of family
pension in that category.
NOTE (3) :-The income criteria for dependency will be the
minimum family pension along with dearness relief thereon."
The Rules specifies the persons who are entitled and who are
part of family. Those rules are framed by exercising power under
Article 309 of the Constitution of India. Similarly, in CCS (Pension)
Rules, 1972 permits payment of family pension to unmarried,
widowed/divorced daughters until she gets married or remarried or
until she starts earning her livelihood, whichever is earlier. The
family pension is payable to the unmarried/widowed/divorced
daughters above the age of 25 years, after all unmarried children
have attained the 25 years of age or started earning their livelihood
whichever is earlier. If the deceased government servant/pensioner
has survived by any disabled child, the
widowed/divorced/unmarried daughter will be eligible to receive
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family pension only after the turn of disabled child (vide: DoP and
PW OM 1/13/09-P&PW dated 11.09.2013).
Thus, the divorced or widowed daughters are eligible for
family pension.
As seen from the material on record, the Andhra Pradesh
Revised Pension Rules were framed only by exercising power under
Article 309 of the Constitution of India as these rules pertaining to
service conditions of Government employees to claim pension after
retirement since family pension is now welfare scheme framed to
provide relief to the widowed spouse and children of deceased
employee or pensioner, including widowed or divorced daughter.
The eligibility to claim family pension and the procedure for
payment of family pension is totally governed by the rules framed by
the State legislature known as the Andhra Pradesh Revised Pension
Rules 1980. These rules are statutory in nature.
There is no dispute in adopting the rules for payment of family
pension since both the petitioners and respondents explained in
their respective pleadings as to how the rules for payment of
pension to widowed daughter and divorced daughter came into
force. However, by issuing the present impugned G.O.Ms.No.152
Finance (HR.III - Pension) Department dated 25.11.2019 exercising
power under Article 162 of the Constitution of India disabling the
widowed daughters/divorced daughters to claim family pension by
imposing certain restrictions. Therefore, it is necessary to extract
the G.O.Ms.No.152 Finance (HR.III - Pension) Department dated
25.11.2019, which is as follows:
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GOVERNMENT OF ANDHRA PRADESH
ABSTRACT
PENSIONS - Family Pension to the Widowed/Divorced Daughter in Category-II -
Restriction of Age Limit of 45 Years - Unmarried Daughter in Category-II -
Clarificatory Orders - Issued.
--------------------------------------------------------------------------------------------
FINANCE (HR.III - Pension)
DEPARTMENT
G.O.MS.No. 152 Dated: 25-11-2019
Read the following:-
1. G.O.Ms.No.315, Finance (PENSION-I) Department, Dated: 07.10.2010.
2. G.O.Ms.No.353, Finance (P.S.C.) Department, Dated: 04.12.2010.
3. Government Memo No.34021/70/ HR.V/2018, Dated:
11.07.2018.
ORDER:
st
In the G.O.1 read above Government have issued orders duly amending and
substituting the Rule 50 (5) & (12) of A.P. Revised Pension Rules 1980 by
categorizing the eligibility of beneficiaries to receive family pension into Category-I &
Category-II.
nd
2. Detailed procedure has been laid down in G.O.2 read above for effective
st
implementation of the orders issued in the G.O.1 read above.
rd
3. In the reference 3 read above, Government have restricted the age limit of
45 years as eligibility of the family pension to the widowed/divorced daughter under
Category-II.
4. The Principal Accountant General (A&E) has requested to clarify whether the
45 years of age limit to be reckoned (a) On the date of death of pensioner/Family
Pensioner under Category-I (b) On the date of application by Widowed/Divorced
daughter since the number of family pension cases have been received before the issue
of Government Memo No.34021/70/HR-5/2018, Finance (HR-3-Pension-I) Department,
dt.11.07.2018 and the cases which are received prior to the date of revised
guidelines are to be finalized in exception of above order, vide their letter dated
2018. Further, on the process of implementing the above orders certain
ambiguity are arisen by Director of Treasuries and Accounts, Director of State Audit
and Pensioner's association in respect of eligibility of Family Pension under
Category - II.
5. Government after careful examination, hereby issuing the following procedural
guidelines to sanction family pension to the Widowed/Divorced and unmarried
Daughter under Category - II as amendment to G.O.Ms.No.315 Finance (Pension-I)
Department, dt.7.10.2010 and G.O.Ms.No.231 Finance (Pension-I) Department,
dt.8.8.2008.
(i) In respect of Widowed/ Divorced daughter the point at Category-II (A) under
para 7 in G.O.Ms.No.315 Finance (Pension-I) Department, dt.7.10.2010 is amended
as follows:
For Read
In the case of Unmarried/ In case of family pension to the
widowed/ divorced daughter, not
covered by Category-I above, upto the Widowed/Divorced daughter not covered
date of marriage/ remarriage or till by Category-I above, having no children or
the date she starts earning or upto with Minor children, is eligible to receive
the date of death whichever is
the earliest, provided they are wholly family pension upto the date of
dependent on the employee/pensioner remarriage/ till the date she starts earning
/anyone of her children become Major
or up to the date of death whichever is
the earliest, provided they are wholly
dependent on the employee/pensioner.
Such family pension shall be payable
only after the other eligible family
members in Category-I have ceased to be
eligible to receive family pension and
there is no disabled child to receive the
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family pension. If any person found
drawing pension after re-marriage/starts
earning is liable for Criminal prosecution.
(i) The restriction of age limit up to 45
years is applicable to the Widowed/
Divorced Daughter under Category-II as on
the date of eligibility. The date of eligibility
commences on or after the date of ceasing
the eligible family pension tothe family
members in the Category-I.
(ii) In respect of unmarried Daughter, the point at Category- II (A) under para 7 in
G.O.Ms.No.315 Finance (Pension-I) Department, dt.7.10.2010 is amended as
follows:
For Read
In the case of Unmarried/ In case of the unmarried
widowed/ divorced daughter, not covered daughter beyond the age of 25 years also
by Category-I above, up to the date of family pension will be sanctioned subject
marriage/ remarriage or till the date she to no other eligible Family Pensioner
starts earning or up to the date of death under Category-I is available. The said
whichever is the earliest, provided family pension is subject to her
they are wholly dependent on the marriage or starts earning equal to the
employee/pensioner. minimum family pension as fixed by
the Government from time to time.
The status of Marriage shall be
produced once in 6 months as certified
by the Gazetted Officer from the
concerned Revenue Department. If any
person found drawing pension after
marriage/starts earning is liable to
Criminal prosecution.
(iii) If the claimant is a Widowed /Divorced family pensioner with
a. Childless, the Family Pension will be eligible till she starts earning equal to the
minimum family pension as fixed by the Government from time to time OR till
she gets Re-marriage.
b. Minor Children, the Family Pension will be eligible till the children become
Major (attaining the age of 18 years). At no point of time the family pension
will be paid to the Minor children of the above pensioner, in case of death of
above pensioner before the children become Major i.e, the family pension will
be ceased with her death itself.
(iv) Further w.r.t para 9(v) (iii) of G.O.Ms.No.353, Finance (P.S.C.)
Department, Dated 04.12.2010, if the claimant is a widowed daughter, the Death
Certificate of her husband together with a certificate from the concerned M.R.O., to the
effect that the person, specified in the Death Certificate, was not an employee
anywhere, not doing pensionable job, have to be furnished along with the
Certificate of Family Members issued by the competent authority.
(v) In respect of sanction of Family Pension to the Divorced daughter, eligibility is
subject to non receipt of properties/amount as compensation/ Permanent alimony
from her ex-spouse/in-laws as certified by the judicial authority shall be furnished.
6. The Pension/Family Pension sanctioning authorities/ Pension authorizing
authorities shall follow the following instructions while processing the Widowed/
Divorced and Unmarried Daughter Family Pension under category-II.
a. Whether the name of the Widowed/Divorced and unmarried Daughter are
mentioned at the time of retirement of the Pensioner/Family pensioner along
with age, status of Education/Employment are tally with the Service Register /
Pension Papers.
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b. The applicant shall submit the Aadhar Card, Pan Card and Ration Card of Self
and Family member's certificate as certified by the Judicial authorities.
c. The applicant shall submit the status of the children
such as Education/Occupation issued by the competent authority and
Earning status certificates issued by the Revenue authorities at the time of
application for the Widow Family Pension/ Divorced Family Pension.
d. Death Certificate of her Husband in case of Widow Daughter and
Divorce deed and copy of Divorce orders granted by competent Judicial
authority in case of Divorced daughter.
e. Family member certificate issued by the competent authority after death of
the Pensioner/Family Pensioner as in case of Category-I.
f. The eligible applicant should apply within a period of one year from the date of
death of Family Pensioner in Category-I.
g. Along with the annual digital Life Certificate the status of the children
Education/Employment along with updated Aadhar card and Pan Card shall
be furnished.
h. The Certificate issued by the Revenue Department on the status of
re-marriage of Widowed/Divorced Family Pensioner and Income
Certificate shall be furnished along with the annual digital Life Certificate.
i. If any person found drawing pension after marriage/re-marriage/starts
earning at later stage is liable to Criminal prosecution will be initiated
besides stoppage of Family Pension sanctioned.
7. These clarifications are issued to G.O.Ms.No.315, Finance (Pen.I)
Department, dt.07.10.2010 read with the procedural guidelines issued in G.O.Ms
No.353, Finance (P.S.C) Department, dt.04.12.2010. The applicability of the above
clarification is w.e.f the date of issue of G.O.Ms.No.315, Finance (Pen.I) Department,
dt.07.10.2010.
8. All the Treasury Officers/Pension Payment Officers shall follow the above
instructions and give periodical report on sanction of the cases, twice in a year to the
Finance Department.
9. The G.O.is available on Internet and can be accessed at the address
"http://www.ap.gov.in/goir" and http://www.apfinance.gov.in.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH)
SHAMSHER SINGH RAWAT
PRINCIPAL FINANCE SECRETARY
From the beginning, the contention of the petitioners in all the
petitions is that administrative or executive instructions will not
override the statutory rules framed by exercising power under
Article 309 of the Constitution of India.
Admittedly, impugned Government Order was not issued
based on the decision taken by the State legislature amending the
Andhra Pradesh Revised Pension Rules, 1980. Undisputedly, it is
only Government order issued by exercising power under Article 162
of the Constitution of India. What is administrative order or
executive order is not defined anywhere.
Administrative directions or executive directions are
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instructions or regulations issued by the higher authorities to the
lower authorities, in the absence of a rule or enactment pertaining
to a specific issue or to compensate or fill the lacunas in the existing
laws and thereby constructing better standards or platforms to
tackle issues. Executive directions are otherwise designated as
executive quasi-law or executive quasi-legislations. These directions
can be specific, that is formulated and applied to a particular
purpose, or a particular case; or it may be general in nature, laying
down general principles, policies, practices, or procedures to be
followed in similar cases. Further, these directions are issued in the
form of orders published in Government Gazette.
In contemporary India, the government enjoys indefinite or
boundless administrative powers, and therefore the areas of issuing
administrative directions are quite ample. The concept of
Administrative directions has its roots in Article 73 and Article 162
of the Constitution of India, they serve as the substratum. These
Articles deals with administrative powers of Government and such
directions are generally issued under it. According to Article 73 of
the Constitution of India, the executive power of the Union extends
to the matters with respect to which Parliament has power to make
laws. Similarly, according to Article 162 of the Constitution of India,
the executive power of the State extends to the matters with respect
to which State Legislative has power to make laws. These provisions
exclusively deals with the executive power of government and do not
confer any kind of legislative power. At times, statutory powers are
granted to issue directions. A direction issued under statutory
power prevails over a direction issued under general administrative
power.
A rule can override an instruction but an instruction cannot
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override a rule. This principle was well established in the case
of "Jagit singh v. State of Punjab8", in this case, the state
government had made a request to the Punjab public service
commission to select and endorse six vacancies in the Punjab civil
services (executive branch). The appellant secured third position
amongst the scheduled caste (sc) candidates in the competitive
exam that was consequently conducted. The reserved quota was
20% and appointment letters were issued to the first two
candidates. However, one of the selected candidates resigned. The
appellant being next in merit on the selection list, made an
application for the vacancy. He based his claim on the instructions
given by the State Government through a circular. The government
came to reject this claim and a petition was filed in the High Court.
On dismissal, it went on appeal to the Supreme Court; it was
decided that the general practice was that if SC/ST candidate is
terminated an eligible candidate belonging to the same community
must be appointed on ad hoc basis. Instructions contrary to such a
practice were held to be invalid. The court's opinion made it clear
that instructions cannot contravene or supersede statutory rules
but rather augment the rule or regulation. Further, in "Mahadeo
Bhau Khilare v. State of Maharashtra9", it was deicided that a
scheme framed by an administrative instruction in violation of
statutory rules cannot be sustained. It is true that Government
cannot amend or supersede statutory rules by administrative
instructions, but if the rules are silent on any particular point
Government can fill up the gaps and supplement the rules and
issue instructions not inconsistent with the rules already framed
(1978) 2 SCC 196
(2007) 5 SCC 437
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and this principle was upheld in the case of "Sant Ram Sharma v
State of Rajasthan10"
Administrative instructions are not enforceable as held in
"J.R.Raghupathy v State of Andhra Pradesh11"
In the case of "Prabhakar Reddy v State of Karnataka12", it
was laid down that, a direction is unenforceable in the Court against
either a person or the Administration. A direction neither confers
any enforceable right on a person, nor imposes an obligation or duty
on the Administration.
In "Suresh Chandra Singh v Fertilizers Corporation of
India13", the High Court of Allahabad held that administrative
instructions are only advisory and no writ can be issued to enforce
them. The principle was upheld in the case of "Abdulla Rowther v
STA Tribunal14", it was held that the validity of an administrative
action taken in breach of an administrative direction is not
challengeable and the court will refuse to issue any writ even when
there is a patent breach of an administrative direction.
This so called privilege granted to administrative bodies to
formulate quintessential or circumstantially relevant notions or
instructions is not absolute. It is a well channelled privilege to be
used in the right way at circumstances for a right cause, should be
compatible and in accord with the said limitations. Let us now
consider the situations under which a direction can be rendered
invalid or void. Like any other rule or law or principle, an
administrative direction will be held void if it is against this principle
of Natural Justice, the said principle being the heart and soul or
AIR (1968) 1 SCR 111
AIR 1988 SC 1681
AIR 1980 Karnt 207
1999(3)SLR372
AIR 1959 SC 896
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bedrock of administrative law, no direction can survive if it tries to
override the principles of natural justice. That direction should be in
accordance with the established principles and laws, and should be
reasonable and relevant, a direction should not be the fruit of
unreasonable, ulterior discretion of concerned authorities, if so,
such a direction will be held invalid.
As discussed previously, a direction should not be
inconsistent with other existing rules or laws. In legal hierarchy,
directions occupy a place subordinate to other statues, or rules, and
it is settled in the case of "State of Sikkim v Dorjee Tshering
Bhutia15", that any order, instruction, direction, or notification
issued in exercise of the executive power of the state which is
contrary to any statutory provisions, is without jurisdiction and is a
nullity.
A direction should not encroach into or adversely affect
individual rights. Any restriction prejudicial to individual interest
can be placed only by law, cannot be done through administrative
directions. In the case of "District Collector, Chittoor v Chittoor
Groundnut Traders Association16", the State Government issued a
circular to its officer not to permit transport of groundnut seeds and
oil outside the state by millers and traders unless they agreed to
supply certain quantities of these products to the state at the price
fixed by it. The circular thus placed restrictions on the right of
traders. Supreme Court quashed the circular as illegal and void as
the state government had no power to impose such restriction.
Similarly, a direction can stand only if it in congruence with
Article 14 of the Constitution of India. Equality is one of the
AIR 1991 SC 1933
AIR 1989 SC 989
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imperative element of a democracy, any kind of divergence from this
principle will result in arbitrariness and definitely steer down the
essence of democracy. Therefore, administrative directions will be
held invalid if it violated Article 14. In the case of "S.L.Sachdev v
Union of India17", an administrative direction regarding the
promotion of the upper division clerks to higher grades was quashed
as it was unreasonable, arbitrary, illogical and violative of Article 14
of the Constitution of India.
Thus, from the law laid down by the other High Courts and
the Apex Court in the judgments (referred supra), the administrative
or executive instructions shall not be inconsistent with the statutory
rules or provisions and not in violation of principles of natural
justice or outcome of arbitrary power.
It is settled legal proposition that executive instructions
cannot override the statutory provisions (Vide: "B.N. Nagarajan v.
State of Mysore18" "Union of India v. Majji Jangammyya19"
"State of Maharashtra v. Jagannath Achyut Karandikar20")
Executive instructions cannot amend or supersede the
statutory rules or add something therein, nor the orders be issued
in contravention of the statutory rules for the reason that an
administrative instruction is not a statutory Rule nor does it have
any force of law; while statutory rules have full force of law provided
the same are not in conflict with the provisions of the Act. (Vide:
"State of U. P. and Ors. v. Babu Ram Upadhyaya21" and "State
of Tamil Nadu v. M/s. Hind Stone22").
AIR 1981 SC 411
(1967)ILLJ698SC
[1977]2SCR28
AIR 1989 SC 1133
1961CriLJ773
[1981]2SCR742
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In "Union of India v. Sri Somasundaram Vishwanath23",
the Hon'ble Apex Court observed that if there is a conflict between
the executive instruction and the Rules framed under the proviso to
Article 309 of the Constitution, the Rules will prevail. Similarly, if
there is a conflict in the Rules made under the proviso to Article 309
of the Constitution and the law, the law will prevail.
Similar view has been reiterated in "Union of India v.
Rakesh Kumar24" "Swapan Kumar Pal and Ors. v. Samitabhar
Chakraborty25" observing that statutory rules create enforceable
rights which cannot be taken away by issuing executive
instructions.
In "Ram Ganesh Tripathi v. State of U.P.26", the Apex Court
considered a similar controversy and held that any executive
instruction/order which runs counter to or is inconsistent with the
statutory rules cannot be enforced, rather deserves to be quashed as
having no force of law. The Apex Court observed as under :-
"They (respondents) relied upon the order passed by the State. This
order also deserves to be quashed as it is not consistent with the statutory
rules. It appears to have been passed by the Government to oblique the
respondents and similarly situated ad hoc appointees."
Thus, in view of the above, it is evident that executive
instructions cannot be issued in contravention of the Rules framed
under the proviso to Article 309 of the Constitution and statutory
rules cannot be set at naught by the executive fiat.
In "Commissioner of Income Tax, Mumbai v. Anjum M.H.
AIR 1988 SC 2255
[2001]2SCR927
[2001]3SCR641
AIR1997SC1446
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Ghaswala27", the Apex Court held that circulars issued by the
Central Board of Direct Taxes under the provisions of Section 119 of
the Income Tax Act, 1961 have statutory force and any other
instruction/circular not issued under the said provision, will not be
of any assistance to anybody as the same would not have statutory
force.
In "Punit Rai v. Dinesh Chaudhaty28" "Union of India v.
Naveen Jindal29" the Apex Court held that executive instructions
cannot be termed as law within the meaning of Article 13(3)(a) of the
Constitution.
In "M/s. Bishamber Dayal Chandra Mohan v. State of
U.P.30" the Apex Court explained the difference in a statutory order
and an executive order observing that executive instruction issued
under Article 162 of the Constitution does not amount to law.
However, if an order can be referred to a statutory provision and
held to have been passed under the said statutory provision, it
would not be merely an executive fiat but an order under the
Statute having statutory force for the reason that it would be a
positive State made law. So, in order to examine as to whether an
order has a statutory force, the Court has to find out and determine
as to whether it can be referred to the provision of the Statute.
In "Chandra Prakash Tiwari v. Shakuntala Shukla31", the
Apex Court held that police forces are to be guided by the provisions
of the Police Act and no exception can be taken thereto. The Court
while dealing with the provisions of U.P. Government Servants
(Criterion for Recruitment by Promotion) Rules, 1994 framed under
[2001]252ITR1(SC)
AIR2003SC4355
AIR2004SC1559
[1982]1SCR1137
[2002]3SCR948
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the proviso to Article 309 of the Constitution, held as not applicable
as the field stood occupied by a Government Order dated 5.11.1965
issued Under Section 2 of the Act, 1861. Service conditions referable
to the Act, 1861 could not be replaced by general service conditions
framed for other civilian-employees.
In "Municipal Corporation of Delhi v. Sheo Shankar32",
the Apex Court considered the issue and scope of implied repeal and
held that Court should not lean towards implied repealing in
absence of express or implied legislative intent, observing as under:
"As the legislature must be presumed in deference to the Rule of law to
intend to enact consistent and harmonious body of laws, a subsequent
legislation may not be too readily presumed to effectuate a repeal of existing
statutory laws in the absence of express or at least clear and unambiguous
indication to that effect. This is essential in the interest of certainty and
consistency in the laws which the citizens are enjoined and expected to obey.
The legislature which may generally be presumed to know the existing law, is
not expected to intend to create confusion by its omission to express its
intent to repeal in clear terms. The Courts, therefore, as a Rule, lean against
implying a repeal unless the two provisions are so plainly repugnant to each
other that they cannot stand together and it is not possible on any
reasonable hypothesis to give effect to both at the same time. The repeal
must, if not express, flow from necessary implication as the only
intendment..........................The meaning, scope and effect of the two
statutes, as discovered on scrutiny, determines the legislative intent as to
whether the earlier law shall cease or shall only be supplemented. If the
objects of the two statutory provisions are different and the language of each
Statute is restricted to its own objects or subject, then they are generally
intended to run in parallel lines without meeting and there would be no real
conflict though apparently it may appear to be so on the surface."
In "Ashok Kumar v. State of Rajasthan33" the Rajasthan
High Court held that the executive instructions cannot amend or
supersede the statutory rules or add something therein.
In "Vijay Singh v. State of Uttar Pradesh34" the Allahabad
High Court reiterated the same principle.
1971CriLJ680
2000 (2) WLN 574
2005 (2) AWC 1191
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Thus, in view of catena of perspective pronouncements, it is
clear that executive instructions will not override or prevail over
statutory rules.
In the present case, the Andhra Pradesh Revised Pension
Rules, 1980 are statutory in nature as those rules were framed by
exercising power under Article 309 of the Constitution of India,
whereas the impugned G.O.Ms.No.152 Finance (HR.III - Pension)
Department dated 25.11.2019 was issued by exercising power under
Article 162 of the Constitution of India by way of executive
clarification.
Turning to the facts of the present cases, the Andhra Pradesh
Revised Pension Rules, 1980 did not impose any restriction to claim
family pension by widowed/divorced daughter of the deceased
retired employee under Rule 50, but based on clarification sought
by Treasury department, executive instructions came to be issued
vide G.O.Ms.No.152 Finance (HR.III - Pension) Department dated
25.11.2019, which is impugned in the present writ petitions.
According to learned Government Pleader for Services-I, it is only a
clarification by the executive, in view of the request made by the
Director of Treasuries and it is not a law passed by the State
legislature. When the impugned Government Order is analysed,
there is any amount of inconsistency in different paragraphs. At one
stage, it is stated that it is clarification and in another paragraph it
is stated that it is an amendment. It appears that the administrative
authority, who passed the Government Order, is not sure whether it
is a clarification or amendment proposed to the Andhra Pradesh
Revised Pension Rules, 1980. The G.O.Ms.No.152 Finance (HR.III -
Pension) Department dated 25.11.2019 was totally ill drafted by the
authorities by exercising power under Article 162 of the Constitution
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of India. By way of clarification or by way of proposed amendment to
the rules in view of the inconsistency pointed before this Court, the
widowed daughter/divorced daughter, who are entitled to claim
family pension without any restriction, except restrictions
mentioned in Rule 50 of the Andhra Pradesh Revised Pension Rules,
1980, disability is created by executive instructions is a serious
illegality and by the executive instructions impugned in the writ
petition, the widowed daughter/divorced daughter of the deceased
retired government servant, cannot be deprived of their right to
property. As discussed above, executive instructions i.e.
G.O.Ms.No.152 Finance (HR.III - Pension) Department dated
25.11.2019 will not override or prevail over the Andhra Pradesh
Revised Pension Rules, 1980, issued by exercising power under
Article 309 of the Constitution of India. Accordingly, the point is
answered against the respondents and in favour of the petitioners.
P O I N T No.2:
One of the contentions of the petitioners is that non-payment
of family pension is violative of Article 14, 21 and 300-A of the
Constitution of India, whereas the contention of the respondents is
that the G.O.Ms.No.152 Finance (HR.III - Pension) Department
dated 25.11.2019 is clarificatory in nature and not depriving any
person before attaining age of 45 years and children attaining age of
18 years and it does not amount to depriving any person from
enjoying the property or violation of fundamental right guaranteed
under the Constitution of India.
The issue relating to non-payment of pension is no more res
integra, in view of the law declared by the Apex Court in various
judgments commencing from "Deoki Nandan Prasad v. State of
Bihar" (referred supra) wherein the Apex Court authoritatively
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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
quantifying the amount having regard to service and other allied
maters 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 v. Iqbal Singh35".
A Full Bench of the Punjab and Haryana High Court in "K.R.
Erry v. State of Punjab36" considered the nature of the right of an
officer to get pension. The majority quoted with approval the
principles laid down in the two earlier decisions of the same High
Court, referred to above, and held that the pension is not to be
treated as a bounty payable on the sweet will and pleasure of the
Government and that the right to superannuation pension including
its amount is a valuable right vesting in a government servant. It was
further held by the majority that even though an opportunity had
already been afforded to the officer on an earlier occasion for
showing cause against the imposition of penalty for lapse or
misconduct on his part and he has been found guilty, nevertheless,
when a cut is sought to be imposed in the quantum of pension
payable to an officer on the basis of misconduct already proved
against him, a further opportunity to show-cause in that regard
must be given to the officer. This view regarding the giving of
further opportunity was expressed by the learned Judges on the
35 (1976) IILLJ 377 SC
36 ILR 1967 Punj & Har 278
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basis of the relevant Punjab Civil Service Rules. But the learned
Chief Justice in his dissenting judgment was not prepared to agree
with the majority that under such circumstances a further
opportunity should be given to an officer when a reduction in the
amount of pension payable is made by the State. It is not necessary
for us in the case on hand to consider the question whether before
taking action by way of reducing or denying the pension on the basis
of disciplinary action already taken, a further notice to show-cause
should be given to an officer. That question does not arise for
consideration before us. Nor are we concerned with the further
question regarding the procedure, if any, to be adopted by the
authorities before reducing or withholding the pension for the first
time after the retirement of an officer. Hence no opinion is expressed
regarding the views expressed by the majority and the minority
Judges in the above Punjab High Court decision on this aspect. The
Apex Court did not agree with the view of the majority when it has
approved its earlier decision that pension is not a bounty payable on
the sweet will and pleasure of the Government and that, on the other
hand, the right to pension is a valuable right vesting in a government
servant.
Having due regard to the above decisions, Apex Court was of
the opinion that the right of the petitioner to receive pension is
property under Article 31(1) and by a mere executive order, the State
had no power to withhold the same. Similarly, the said claim is also
property under Article 19(1)(f) and it is not saved by sub-article
(5) of Article 19. Therefore, it follows that the order, dated June 12,
1968, denying the petitioner right to receive pension affects the
fundamental right of the petitioner under Articles 19(1)(f) and 31(1)
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of the Constitution, and as such the writ petition under Article 32 is
maintainable..."
In "D.S Nakara v. Union of India37", Justice D.A. Desai, who
spoke for the Constitutional Bench, in his inimitable style,
considered the right of pension framing various issues, particularly
defining pension and whether it is a property or not etc, concluded
that pension cannot be withheld except by authority under law. The
same principle is reiterated in "Dr. Hira Lal v. State of Bihar38".
In "State of Jharkhand v. Jitendra Kumar Srivastava39",
while dealing with Rule 43(b) of Bihar Pension Rules with regard to
claim of the petitioner for payment of provisional pension, gratuity
etc. in terms of Resolution No. 3014 dated 31.7.1980, the Division
Bench of the Apex Court held that the State had no authority or
power to withhold pension or gratuity of a government servant
during pendency of the departmental proceedings.
In "State of West Bengal v. Haresh C. Banerjee40", the Apex
Court recognized that even when, after the repeal of Article 19(1)(f)
and Article 31 (1) of the Constitution vide Constitution (Forty-Fourth
Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property
was no longer remained a fundamental right, it was still a
Constitutional right, as provided in Article 300A of the Constitution,
the same is reiterated by Division Bench of Apex Court in "Hari
Krishna Mandir Trust v. State of Maharashtra41". Right to
receive pension was treated as right to property. The High Court of
Judicature of Bombay in "Purushottam Kashinath Kulkarni and
37 AIR 1983 SC 130
38 Civil Appeal No.1677-1678 of 2020 dated 18.02.2020
39 (2013) 12 SCC 210
40 (2006) 7 SCC 651
Civil Appeal No.6156 of 2013 dated 07.08.2020
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others v. The State of Maharashtra42" and The High court of
Chattisgarh in "Ramlal Sharma v. State of Chattisgarh43" relying
on D.S Nakara v. Union of India (referred supra), concluded that
payment of pension cannot be deferred. It is thus a hard earned
benefit of an employee in the nature of property.
Salary is paid to the employees to eke out their livelihood
during their service and pension is paid after retirement. If, payment
of pension or family pension is denied, it amounts to denial of right
to life guaranteed under Article 21 of the Constitution of India.
Initially, right to livelihood was not recognized as fundamental right
under Article 21 of the Constitution of India. But, later it was
recognized as Fundamental Right by judicial interpretation to Article
21 of the Constitution of India.
Article 21 of the Constitution of India guarantees right to life.
The right to life includes the right to livelihood. Time and again the
Courts in India held that Article 21 is one of the great silences of the
Constitution. The right to livelihood cannot be subjected to
individual fancies of the persons in authority. The sweep of the right
to life conferred by Article 21 is wide and far reaching. An important
facet of that right is the right to livelihood because, no person can
live without the means of living, that is, the means of livelihood. If
the right to livelihood is not treated as a part of the constitutional
right to life, the easiest way of depriving a person of his right to life
would be to deprive him of his means of livelihood to the point of
abrogation.
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In Re: Sant Ram44 a case which arose before "Maneka
Gandhi v. Union of India45", the Supreme Court ruled that the
right to livelihood would not fall within the expression "life" in Article
21. The Court observed:
"The argument that the word "life" in Article 21 of the Constitution
includes "livelihood" has only to be rejected. The question of livelihood
has not in terms been dealt with by Article 21."
In "Olga Tellis Vs. Bombay Municipal Corporation46" the
Apex Court held as follows:
"If there is an obligation upon the State to secure to the citizens an
adequate means of livelihood and the right to work, it would be sheer
pedantry to exclude the right to livelihood from the content of the right
to life. The State may not, by affirmative action, be compellable to
provide adequate means of livelihood or work to the citizens. But, any
person, who is deprived of his right to livelihood except according to
just and fair procedure established by law, can challenge the
deprivation as offending the right to life conferred by Article 21."
(Emphasis is supplied).
The right to live with human dignity, free from exploitation is
enshrined in Article 21 and derives its life breadth from the Directive
Principles of State Policy and particularly Clauses (e) and (f) of Article
39 and Articles 41 and 42 and at least, therefore, it must include the
right to live with human dignity, the right to take any action which
will deprive a person of enjoyment of basic right to live with dignity
as an integral part of the constitutional right guaranteed under
Article 21 of the Constitution of India.
In "Delhi Transport Corporation v. D.T.C. Mazdoor
Congress47", the Supreme Court while reiterating the principle
observed that the right to life includes right to livelihood. The right to
44 AIR 1960 SC 932
45 AIR 1978 SC 597
46 AIR1986SC180
47 (1991)ILLJ395SC
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livelihood therefore cannot hang on to the fancies of individuals in
authority. Income is the foundation of many fundamental rights.
Fundamental rights can ill-afford to be consigned to the limbo of
undefined premises and uncertain applications. That will be a
mockery of them.
The Apex Court in various judgments interpreted the right to
livelihood is a part of right to life under Article 21 of the Constitution
of India and it is relevant to refer the principle in "M. Paul Anthony
v. Bharat Gold Mines Limited48, the Apex Court held that when a
government servant or one in a public undertaking is suspended
pending a departmental disciplinary inquiry against him,
subsistence allowance must be paid to him. The Court has
emphasized that a government servant does not loose his right to
life. However, if a person is deprived of such a right according to the
procedure established by law which must be fair, just and
reasonable and which is in the larger interest of people, the plea of
deprivation of the right to livelihood under Article 21 is
unsustainable.
Thus, in view of the law laid down by the Apex Court in
various judgments (referred supra), widening the meaning of word
'right to life' includes 'right to livelihood', right to livelihood is a
fundamental right, and it is an integral part of right to life
guaranteed under Article 21 of the Constitution of India.
The major contention of the petitioners from the beginning is
that, non-payment of pension as stated above, is contravention of
Article 300-A of the Constitution of India. No doubt, as per Article
300-A of the Constitution of India, no citizen of India be deprived of
48 AIR 1999 SC 1416
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his/her right to property, except by authority of law. As pension or
family pension form part of property of an individual to attract Article
300-A of the Constitution of India, such right cannot be taken away
except by authority of law.
On a bare look at Article 300-A of the Constitution of India,
any citizen of India cannot be deprived of their right to property,
except by authority under law. That means a property of any citizen
of India cannot be taken unless the State is authorized to do so. In
"Shapoor M. Mehra v Allahabad Bank49", wherein Bombay High
Court opined that retiral benefits including pension and gratuity
constitute a valuable right in property.
In "Deoki Nandan Prasad v. State of Bihar (referred supra),
the Apex Court held as follows:
"(i) The right of the petitioner to receive pension is property
under Article 31(1) and by a mere executive order the State had
no powers to withhold the same. Similarly, the said claim is also
property under Article 19(1)(f) and it is not saved by sub-article
(5) of Article 19. Therefore, it follows that the order denying the
petitioner right to receive pension affects the fundamental right of
the petitioner under Article 19(1)(f) and 31(1) of the Constitution
and as such the writ petition under Article 32 is maintainable."
11. In the light of aforesaid legal position, it is crystal clear that
right to get the aforesaid benefits is constitutional right. Gratuity
or retiral dues can be withheld or reduced only as per provision
made under M.P. Civil Services (Pension) Rules, 1976. In the
present case, there is no material on record to show that
respondents have taken any action in invoking the said rules to
stop or withhold gratuity or other dues..."
Thus, pension payable to the employees in service or retired
from service falls within the definition of property under in Article
300-A of the Constitution of India.
Though the Constitution of India permits the State to deprive
any person's right in property by authority of law, the respondents
were unable to show any provision which authorized the State to
cancel the payment of payment of family pension payable to the
dependents of the employees, who are retired from service. In the
49 (2012) 3 Mah.L.J 126
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absence of any statute governing stoppage of family pension,
deprivation of right to property by dependents of retired employees
would amount to violation of constitutional right guaranteed under
Article 300-A of the Constitution of India. In this regard, it is
profitable to mention few judgments of the Apex Court and other
Courts with regard to right of the state to deny payment of family
pension etc.
In "Dr.Smt. Manmohan Kaur v. The State of M.P.50" the
Gwalior Bench of Madhya Pradesh High Court had an occasion to
deal with non-payment of pensionary benefits, held that deferment
or non-payment of salary or part of it is illegal. In another judgment
of High Court of Madhya Pradesh in "Suresh Kumar Dwivedi and
others v. State of Madhya Pradesh51" held that the dignity of a
man is inviolable, as enshrined in Article 21, which cannot assured
unless his personality is developed, and the only way to do that is to
educate him. Thus, the Directive Principles which are fundamental
in the governance of the Country, cannot be isolated from the
fundamental rights guaranteed under Part III of the Constitution.
These principles have to be read into the fundamental rights. Both
are supplementary to each other.
Therefore, in the absence of any authority of law, stoppage of
family pension amount to violation of constitutional right guaranteed
under Article 300-A of the Constitution of India, since such stoppage
is without any authority of law.
At this stage, it is relevant to refer the meaning of 'authority of
law'. The Apex Court while considering the word used 'law' under
Article 13 and 300-A of the Constitution of India, construed the
51 1993 (0) MPLJ 663
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meaning of word "Law" not only with reference to Article 13 of the
Constitution of India, but also with reference to Article 300-A and
31C of the Constitution of India. The Apex Court in "Bidi Supply Co.
Vs. Union of India52" and "Edward Mills Co.Ltd. Vs. State of
Ajmer53" held that the law, in this Article, means the law made by
the legislature and includes intra vires statutory orders. The orders
made in exercise of power conferred by statutory rules also deemed
to be law. (Vide: State of M.P. Vs. Madawar G.C.54") The Law does
not, however, mean that an administrative order which offends
against a fundamental right will, nevertheless, be valid because it is
not a "law" within the meaning of Article 13 (3) of the Constitution of
India (Vide: Basheshar Nath Vs. C.I.T.55 and "Mervyn Coutindo Vs.
Collector, Customs Bombay56")
Therefore, whatever legislation made by the Legislature or
Parliament alone can be said to be law within the meaning Article 13
(3) of the Constitution of India. At the same time, the Apex Court in
"Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh57"
while deciding the issue with reference to Article 300-A of the
Constitution of India defined the word "authority of law", held that
Article 300-A provides that no person shall be deprived of his
property save by authority of law. The State Government cannot
while taking recourse to the executive power of the State under
Article 162, deprive a person of his property. Such power can be
exercised only by authority of law and not by a mere executive fiat or
order. Article 162, as is clear from the opening words, is subject to
52 AIR 1956 SC 479
53 AIR 1955 SC 25
54 1955 (1) SCR 599
55 AIR 1959 SC 149
56 AIR 1967 SC 52
57 AIR 1982 SC 33
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other provisions of the Constitution. It is, therefore, necessarily
subject to Article 300A. The word 'law' in the context of Article 300A
must mean an Act of Parliament or of a State Legislature, a rule, or a
statutory order; having the force of law, that is positive or State made
law.
In "Hindustan Times v. State of U.P.58" the Apex Court while
referring to "Bishambhar Dayal Chandra Mohan vs. State of
Uttar Pradesh" (referred supra) held as follows:
"By reason of the impugned directives of the State the petitioners
have been deprived of their right to property. The expression 'law',
within the meaning Article 300A, would mean a Parliamentary Act
or an Act of the State Legislature or a statutory order having the
force of law."
Thus, in view of the law laid down by the Apex Court in the
judgments (referred supra), law means the legislation passed by the
parliament or State Legislation or Statutory rules or orders.
No doubt, as discussed above, right to livelihood of a person
can be deprived by authority of law. Article 300-A of the Constitution
of India, protects right of an individual, but such right in the
property can be deprived of save by authority of law.
The right to property is now considered to be not only a
constitutional or a statutory right, but also a human right. Though,
it is not a basic feature of the constitution or a fundamental right,
human rights are considered to be in realm of individual rights, such
as the right to health, the right to livelihood, the right to shelter and
employment etc. Now, human rights are gaining an even greater
multi faceted dimension. The right to property is considered, very
58 AIR 2003 SC 250
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much to be a part of such new dimension (Vide: Tukaram Kanna
Joshi Vs. M.I.D.C.59)
Right to property of a private individual, though, permitted to
be deprived of, it must be by authority of law. Still, Article 25 (1) of
the Universal Declaration of Human Rights recognized such right in
property as human right, which reads as follows:
"Everyone has the right to a standard of living adequate for the health and wellbeing of
himself and of his family, including food, clothing, housing and medical care and necessary
social services, and the right to security in the event of unemployment, sickness, disability,
widowhood, old age or other lack of livelihood in circumstances beyond his control."
India is a State Party to the declaration, but the right to
property is not being considered as human right till date by many
Courts. Right to property in India at present protected not only
under Article 300-A of the Constitution of India, but also recognized
as human right under Article 25 (1) of the Universal Declaration of
Human Rights. A liberal reading of these two provisions, the
intention to protect the owners of either movable or immovable only
from Executive fiat, imposing minimal restrictions on the power of
the State. This is in sharp contrast to the language adopted in the
Indian Constitution.
Though the principles laid down in most of the judgments
pertaining to non-payment of pension, the same principle can be
applied to the present facts of the case as the issue relates to denial
of family pension. In "S.K.Mastan Bee v. The General Manger,
South Central Railway60" the Apex Court held that the very denial
of right to family pension in fact amounting to a violation of the
guarantee assured to the appellant under Article 21 of the
59 AIR 2013 SC 565
(2003)1SCC184
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Constitution. It is an obligation of the authority to compute the
family pension and offer the same to the widow of its employee as
soon as it became due to her, which is the date of the death of her
husband not from the date of application.
The employee has no control over the family pension as he is
not required to make any contribution to it. The family pension
scheme is in the nature of welfare scheme framed to provide relief to
the widow and minor children of the deceased employee. (Vide:
Violet Issac v. Union of India61").
Relying on the said principles, the Division Bench of this Court
in "Dinavahi Lakshmi Kameswari v. The State of Andhra
Pradesh62" (to which I am a member) held that non-payment of
pension, if not authorised by law, is violation of Article 300-A of the
Constitution of India and awarded interest 12% per annum on the
deferred pension.
In view of the law declared in the judgments (referred supra), it
is clear that stoppage of pension to the petitioners by issuing
executive instructions is illegal and arbitrary, violative of Article 14,
21 and 300-A of the Constitution of India and Article 25 (1) of the
Universal Declaration of Human Rights. Accordingly, the point is
answered in favour of the petitioners and against the respondents.
P O I N T No.3:
One of the major contentions of the petitioners before this
Court is that the executive instructions of the State are not based on
any rationale or intelligible differentia, thereby it is arbitrary. The
( 1991 ) 1 SCC 725
2020 (5) ALT77
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specific pleading of the petitioners is that the stoppage of pension
without issuing any show-cause notice or providing opportunity
before stoppage of payment of family pension for the month of
September, 2020 intimating the same by proceedings dated
03.10.2020 stating that payment of family pension is being stopped
in view of amendment made to G.O.Ms.No.315 dated 07.10.2010 by
issuing G.O.Ms.No.152 dated 25.11.2019 prescribing the age limit
for family pensioners as 45 years with children aged more than 18
years is contrary to principles of natural justice. A memo dated
17.03.2020 was also issued by respondent No.1 clarifying that family
pension shall not be discontinued merely an account of attaining age
of 45 years. It is specifically contended that most of the petitioners
have no children and living alone without any source of income for
their livelihood having lost their parents on whom they were
dependents and family pension of their late parents is the only
source of their livelihood. However, without having due regard to the
said clarification, respondents Nos.8 to 11 have stopped payment of
family pension for the month September, 2020 which was due to be
paid on 1st October, 2020, as such stoppage of pension to the
petitioners is in violation of principles of natural justice.
It is further contended that prescribing age limit for the family
pensioners and to their children do not indicate, how such
prescription would sub-serve the purpose for which the family
pension is being paid. Therefore, stoppage of family pension to those
persons who crossed 45 years of age would be ridiculous and
meaningless for the reason that the need for resources would
increase once they get older by age in view of increase in the
personal needs and also various health issues. In fact, some of the
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petitioners crossed 60 years, without any source of livelihood and
unable to meet the medical needs, besides suffering from starvation,
thereby, stoppage of payment of family pension has virtually driven
the petitioners to serious fiscal crisis to lead their day to day life with
human dignity. Thus, the impugned G.O.Ms.No.152 dated
25.11.2019 was issued without any rationale and not based on any
intelligible differentia, besides arbitrary, thereby it is liable to be set
aside.
Article 14 of the Constitution of India ensures to all equality
before law and equal protection of laws. At this juncture it is also
necessary to examine the concept of valid classification. A valid
classification is truly a valid discrimination. It is true that Article
16 of the Constitution of India permits a valid classification.
However, a very classification must be based on a just objective. The
result to be achieved by the just objective presupposes the choice of
some for differential consideration/treatment over others. A
classification to be valid must necessarily satisfy two tests. Firstly,
the distinguishing rationale has to be based on a just objective and
secondly, the choice of differentiating one set of persons from
another, must have a reasonable nexus to the objective sought to be
achieved. The test for a valid classification may be summarised as a
distinction based on a classification founded on an intelligible
differentia, which has a rational relationship with the object sought
to be achieved. Therefore, whenever a cutoff date (as in the present
controversy) is fixed to categorise one set of pensioners for favourable
consideration over others, the twin test for valid classification or
valid discrimination therefore must necessarily be satisfied.
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The respondents did not raise any specific defence for this
contention in the Counter.
In general, any order passed by the State executive must be
supported by reason and affording opportunity to the affected party.
In the instant case, details were called for from the family
pensioners by the Treasury officers and based on those details,
pension payable to the petitioners was stopped/discontinued. No
show-cause notice was issued to the petitioners to ascertain the
financial condition of the children after attaining the age of majority
or afforded any opportunity to explain their financial distress. Such
Government Order without affording any opportunity to the
petitioners and without issuing any notice is nothing but denial of
opportunity, which amounts to violation of principles of natural
justice. Therefore, such stoppage of pension to the family pensioners
based on G.O.Ms.No.152 Finance (HR.III - Pension) Department
dated 25.11.2019 is illegal and arbitrary.
In "Gangikuntal Sridhar and others v. State of Andhra
Pradesh63" Aarogya Mitras who were working under the deed of
trust namely, Aarogyasri Health Care Trust were removed on the
ground of misconduct without issuing any notice prior before
removal and the same was questioned before the High Court on
various grounds, including violation of principles of natural justice.
The Division Bench held that, if anyone of the appellants therein is
found committing any misconduct or their services are found not
satisfactory, the Trust shall be free to proceed against them by
following the principles of natural justice.
2017 (2) ALT 485 (D.B)
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In "D.K. Yadav v. J.M.A. Industries Limited64", the Full
Bench of Supreme Court held as follows:
"The cardinal point that has to be borne in mind, in
every case, is whether the person concerned should
have a reasonable opportunity of presenting his case
and the authority should act fairly, justly, reasonably
and impartially. It is not so much to act judicially but is
to act fairly, namely' the procedure adopted must be
just, fair and reasonable in the particular
circumstances of the case. In other words application
of the principles of natural justice that no man should
be condemned unheard intends to prevent the
authority to act arbitrarily effecting the rights of the
concerned person.
It is a fundamental rule of law that no decision must
be taken which will affect the right of any person
without first being informed of the case and be given
him/ her an opportunity of putting forward his/her
case. An order involving civil consequences must be
made consistently with the rules of natural justice. In
Mohinder Singh Gill & Anr. v. The Chief Election
Commissioner & Ors65 the Constitution Bench held
that 'civil consequence' covers infraction of not merely
property or personal right but of civil liberties, material
deprivations and non- pecuniary damages. In its
comprehensive connotation every thing that affects a
citizen in his civil life inflicts a civil consequence.
Black's Law Dictionary, 4th Edition, page 1487
defined civil rights are such as belong to every citizen
of the state or country they include rights capable of
being enforced or redressed in a civil action. In State
of Orissa v. Dr. (Miss) Binapani Dei & Ors.66, this
court held that even an administrative order which
involves civil consequences must be made consistently
with the rules of natural justice. The person concerned
must be informed of the case, the evidence in support
thereof supplied and must be given a fair opportunity
to meet the case before an adverse decision is taken.
Since no such opportunity was given it was held that
superannuation was in violation of principles of
natural justice."
In view of the law declared by various Courts (referred above),
the order passed by the respondents stopping pension based on
G.O.Ms.No.152 Finance (HR.III - Pension) Department dated
25.11.2019 is violative of principles of natural justice. On this
ground also, the impugned order is liable to be set aside.
On of the major contentions of the petitioners, as extracted
above, is that the G.O.Ms.No.152 Finance (HR.III - Pension)
64 (1993) 3 Supreme Court Cases 259
65 [1978] 2 SCR 272 at 308F
66 AIR 1967 SC 1269
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Department dated 25.11.2019 itself is discriminatory and without
any rational basis.
Rational basis means there must be a reason for issuing
administrative instructions, otherwise it amounts arbitrariness.
Indian Constitution protected its citizens from arbitrary actions of
the State and its subordinates by incorporating Article 14 of the
Constitution of India providing equality before law and protection
from unreasonable discrimination.
The latest judgment of a Supreme Court division bench
in "Rajbala v. State of Haryana67" has rejuvenated the discussion
in the renowned "E.P.Royappa v State of Tamil Nadu68" on the
scope and content of the "arbitrary" doctrine advocated by a
constitutional bench of the apex court. Arbitrariness continues to be
a beleaguered doctrine since its founding.
The nexus between non-arbitrariness and Article 14 of the
Constitution of India though a component of non-arbitrariness is
included in the test of rational classification. In the second and third
parts, the article points out that this connection, which has often
been neglected in comments and decisions, could assist to address
certain conceptual problems that have arisen under Article 14 of the
Constitution of India in the judicial review of the state action.
The point of arbitrariness is enshrined in some Constitutions.
In our Constitution, Article 14 of the Constitution of India is
relevant Article. Text of Article 14 of the Constitution is both logical
and intuitive. The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of
AIR2016SC33
(1974)ILLJ172SC
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India. The Court's earliest judgments had a relatively coherent
perspective of Article 14. It is widely accepted that the first part of
the article which speaks of equality is a guarantee that no individual
is above the law. This guarantee is affected by its corollary in the
second part which provides equal protection of the legislation to
individuals.
The presumption that individuals are essentially equal is a
moral principle that is the anchor of this equality comprehension.
However, it also includes a rule of rationality in relation to this
moral principle. Any exception to equality is only permissible if the
State has reasonable grounds for different treatment of individuals.
Therefore, the validity of state action relies on an assessment of the
reasons for state action. This is the vital connection in Article 14 of
the Constitution of India between equality and rationality.
Reviewing state action pursuant to Article 14 is a sensitive
classification. Its "intelligible differential" and "reasonable nexus"
components are well known for the sort of experiment. What it
checks at the heart of the test is whether, by evaluating why
individuals are treated differently, the law makes an arbitrary
classification. Therefore, the test involves both the moral principle
that all people are basically equal and the rule of rationality that any
classification must be justified by the State.
This point is often ignored in the discussion on the evaluation
of Article 14 of the Constitution of India. In reaction to the
statement made by the Supreme Court in "E.P.Royappa v State of
Tamil Nadu" (referred supra) discovering a fresh dimension of
equality based on non-arbitrariness. In "Charanjit Lal Chowdhury
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v. Union of India69", the Apex Court observed as follows:
"The legislature undoubtedly has a wide field of choice in determining
and classifying the subject of its laws, and if the law deals alike with all of a
certain class, it is normally not obnoxious to the charge of denial of equal
protection; but the classification should never be arbitrary."
Turning to the present facts of the case, by applying the test
referred above, it is necessary to examine the discrimination in the
common man's perception. As seen from G.O.Ms.No.152 Finance
(HR.III - Pension) Department dated 25.11.2019 irrespective of age
of the children, widowed daughter/divorced daughter are entitled to
claim family pension, if they are below 45 years subject to re-
marriage, proof of their living in financial distress. Whereas,
widowed daughter/divorced daughter of deceased government
employee, who crossed 45 years, subject to children attaining 18
years of age are disqualified to claim family pension. Thus, the State
treating differently two classes of people. Such classification is not
provided in the Andhra Pradesh Revised Pension Rules, more
particularly, clause 12 of Rule 50 or 59 of the said Rules, but by
way of executive instructions, this classification was done as if the
State clarified the anomalies in the rule, but referred it as an
amendment. The Government Order is neither clarification nor
amendment to the existing rule. An amendment cannot be made to
the rules framed by State legislature exercising power under Article
309 of the Constitution of India, by issuing executive instruction as
discussed above. If it is an amendment to the existing rule 50 of the
Andhra Pradesh Revised Pension Rules, 1980, ex facie it is illegal. If
it is treated as clarification, various paragraphs in the Government
Order are inconsistent with one another. Therefore, such impugned
Government Order cannot be sustained. However, at this stage this
AIR1951SC41
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Court is concerned with rational classification. When the widowed or
divorced daughter with or without children below the age, may enjoy
better health than the widowed/divorced daughter, who crossed 45
years, when they become older, they will face different problems i.e.
biological problems including health condition. When they become
old, their health condition will deteriorate on account of their mental
distress due to the death of their husbands at early age or divorce of
their husbands. Therefore, the ill-effects at the advanced age are
more severe than the ill-effects on the divorced or widowed daughter
below 45 years. Sometimes, children of widowed/divorced daughter,
may attain majority, in case of early marriages, but still they are
entitled to claim family pension in view of the impugned
Government Order. Even if, the children attained majority, if child is
a female, the widowed daughter/divorced daughter has to perform
marriage to the female child and send her to matrimonial house. It
is a common man's understanding in our State, mother is not totally
dependent on the family of her daughter after her marriage. In the
present society, mostly in rural areas, females are not employed, but
they are depending upon their husbands, who are employed or
earning in different fields. In such case, the daughters are not
expected to provide maintenance to their mothers, who are widowed
or divorced. Besides this anomaly, on account of their age, they are
being deprived of their livelihood and it is difficult for them to lead
their life with dignity. Therefore, discrimination of widowed/divorced
daughter below 45 years of age and above 45 years is not based on
any reasonable classification and there is no rationale behind such
classification. On the other hand, the present executive instructions
denied equal treatment to equals. Therefore, executive instructions
of the State amounts to denial of equality before law as enshrined
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under Article 14 of the Constitution of India.
The necessity for a reasonable classification under Article 14 in
the earlier components. Nevertheless, this was never considered a
sufficient condition for guaranteeing equality. This is evident from
the judgment of the Apex Court in "Ramkrishna Dalmia v. Justice
Tendolkar70", wherein it is held as follows:
1. "Where a statute itself makes the classification and the Court finds that
the classification satisfies the test of reasonable classification, the court
will uphold the validity of the law.
2. In cases where the statute does not make any classification but leaves it
to the discretion of the Government to select and classify persons or
things to whom its provisions are to apply, the statute must be shown to
contain the principles that guide this discretion. If the law fails in this
regard, the court will strike down both the law as well as the executive
action taken under such law.
3. Lastly, where the statute lays down such principles, but the executive
action fails to adhere to these principles, the executive action but not the
statute should be condemned as unconstitutional."
As is evident from the above, the guarantee of equality is not
exhausted by a mere statement of classification validity. If the
executive fails to behave in accordance with the law, Article 14 by its
express words makes such activities unlawful. This is the impact of
Article 14's clause "Equal Law Protection". In other words, a law is
required under Article 14 to be non-arbitrary and, subsequently,
each person is entitled to the fullest protection of the law in its
application. Faced with an instance of classification that deviates
from the fundamental principle of equality, the objective must be to
judge on the grounds of deviation state action. The reasonable
classification test is best suited for doing the job since there is no
normative justification for examining any other reason behind the
state action. In such a situation, judicial review is limited to the
AIR1958SC538
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factors supporting the classification in so far as non-arbitrariness is
concerned. Where judicial review concerns the application of a law or
executive policy to a class of individuals to whom it refers, the Court
shall have the right to review such state action in complete to ensure
that the person concerned is fully protected by the law.
As discussed in the earlier paragraphs, there is absolutely no
rationale or reasonableness in the classification of widowed/divorced
daughters below and above 45 years of age and the State executive
while issuing instructions did not look into common man's thinking
and ground realities in the State and the decision taken by the
executive while issuing G.O.Ms.No.152 Finance (HR.III - Pension)
Department dated 25.11.2019 is contrary to the circumstances
prevailing in the State mostly in the families of widowed/divorced
daughters of the deceased employees in the gross root level. If the
test of rationale or unreasonableness or arbitrariness is applied to
the present Government Order impugned in this case, the said
Government Order is totally arbitrary and violative of Article 14 of
the Constitution of India as it is unreasonable and the executive
instructions are not based on any rationale. Hence, on this ground
also the impugned Government Order is liable to be struck down as
it is violative of Article 14 of the Constitution of India. Accordingly,
the point is held against the respondents in favour of the petitioners.
One of the major contentions urged by the petitioners in all
these petitions is that the impugned Government Order cannot be
given retrospective effect from the date of issue of G.O.Ms.No.315
Finance (Pension-I) Department dated 07.10.2010.
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Normally, any Government Order will be given prospective
effect, but in certain circumstances the Courts by interpretation of
amended provisions of the Act concluded that such amendments be
given retrospective effect if the amended provision deals with
procedure to be followed. There are two views under Interpretation of
Statues. One is "the law looks forward, not backward" based on the
maxim "Lex Prospicit non respicit", which means that laws are
generally deemed or presumed not to have retroactive. Similarly,
there is another maxim i.e. "Lex De Futuro, Judex De Praeterito",
that means the law provides for the future.
Therefore, Ex Post Facto Law, which deals with substantive
rights of the parties have to be given prospective effect, but in case of
procedural laws, there are conflicting views. Another legal maxim
"Nova Constitution futuris formam imponere debet non
praeteritis", which means new law ought to regulate what is to
follow, not the past. The same view point has been taken in "Monnet
Ispat and Energy Limited v. Union of India and others71", where
the Supreme Court held that this principle operates until and unless
there is an express provision in the statute stating/indicating
retrospective applicability of the statutes.
In the recent judgment of constitutional bench in
"Commissioner of Income Tax (Central)-I, New Delhi v. Vatika
Township Private Limited72" the Supreme Court held that if a
legislation confers a benefit on some persons but without inflicting a
corresponding detriment on some other person or on the public
generally, and where to confer such benefit appears to have been the
(2012) 11 SCC 1
(2015) 1 SCC 1
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legislators object, then the presumption would be that such a
legislation, giving it a purposive construction, would warrant it to be
given a retrospective effect. This exactly is the justification to treat
procedural provisions as retrospective. In such cases, retrospectivity
is attached to benefit the persons in contradistinction to the
provision imposing some burden or liability where the presumption
attaches towards prospectivity. Thus, legislations which modified
accrued rights or which impose obligations or impose new duties or
attach a new disability have to be treated as prospective unless the
legislative intent is clearly to give the enactment a retrospective
effect; unless the legislation is for purpose of supplying an obvious
omission in a former legislation or to explain a former legislation.
The law which enacted subsequent to an act done can be said
to be Ex post Facto Law, that means law which enacted after the act.
An ex post facto law or retroactive law is a law that retroactively
changes the legal consequences of acts committed or the legal status
of facts and relationships that existed prior to the enactment of the
law. Such laws can be given prospective or retrospective effect is the
question to be decided by the Court and the same depending upon
the intention of law and language used in the newly enacted law.
In "New India Insurance Co.Ltd. v. Smt.Shanti Misra,
Adult73" the Full Bench of Apex Court considered the effect of
amendment based on principle of limitation and held that the change
in law was merely a change of forum i. e. a change of adjectival or
procedural law and not of substantive law. It is a well-established
proposition that such a change of law operates retrospectively and
the person has to go to the new forum even if his cause of action or
(1975) 2 SCC 840
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right of action accrued prior to the change of forum and the person
will have a vested right of action but not a vested right of forum.
In "Hitendra Vishnu Thakur v. State of Maharashtra74" the
Apex Court laid down certain guidelines with regard to interpretation
of laws, which are as follows:
"(i) A statute which affects substantive rights is
presumed to be prospective in operation, unless made
retrospective, either expressly or by necessary intendment,
whereas a Statute which merely affects procedure, unless
such a construction is texturally impossible, is presumed to be
retrospective in its application, should not be given an
extended meaning, and should be strictly confined to its
clearly defined limits.
(ii) Law relating to forum and limitation is procedural
in nature, whereas law relating to right of action and right of
appeal, even though remedial, is substantive in nature.
(iii) Every litigant has a vested right in substantive law,
but no such right exists in procedural law.
(iv) A procedural Statute should not generally speaking
be applied retrospectively, where the result would be to create
new disabilities or obligations, or to impose new duties in
respect of transactions already accomplished.
(v) A Statute which not only changes the procedure but
also creates a new rights and liabilities, shall be construed to
be prospective in operation, unless otherwise provided, either
expressly or by necessary implication."
The Apex Court in "Hitendra Vishnu Thakur v. State of
Maharashtra" (referred supra) laid down certain guidelines. As per
guideline Nos. (iv) and (v), the amended provision, which creates new
right or imposes new obligation on any of the parties, cannot be
given retrospective effect.
AIR 1994 SC 2623
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In "L'Office Cherifien des Phosphates v. Yamashita-
Shinnih on Steamship Company Ltd.75" it is clarified that the
legislations which modified accrued rights or which impose
obligations or impose new duties or attach a new disability have to
be treated as prospective unless the legislative intent is clearly to
give the enactment a retrospective effect.
In view of the law laid down by the Apex Court in catena of
perspective pronouncements, the impugned G.O.Ms.No.152 Finance
(HR.III - Pension) Department dated 25.11.2019, which takes away
the right of the petitioners in all these petitions to claim family
pension cannot be given retrospective effect. There is no vested right
to the petitioners to claim family pension as the legislature is
competent to make amendments to the rules by exercising power
under Article 309 of the Constitution of India. However, no further
discussion is necessary on this aspect.
One of the major contentions of the respondents before this
Court is that limiting payment of pension subject to certain
conditions envisaged in G.O.Ms.No.152 Finance (HR.III - Pension)
Department dated 25.11.2019 is a policy decision of the State and
the Court cannot interfere with such policy decision, placed reliance
on the judgments of the Apex Court in "Ekta Shakti Foundation v.
Government of NCT, Delhi" and "Centre for Public Interest
Litigation v. Union of India" (referred supra).
There is no dispute regarding the law laid down by the Apex
Court in the said two judgments. Merely because it is branding as
policy decision, it cannot be interfered with by this Court is contrary
to the law laid down by the Apex Court in various judgements
[1994] 1 AC 486 (HL)
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(referred supra). When executive action is contrary to the
constitutional principles or against any statute or it violates the
principles of natural justice, certainly, the Court can interfere with
such policy decisions. Merely because such power is vested on the
State to take policy decisions, the State is not at liberty to take any
decision in the name of policy decision, which takes away the
available rights of the citizenry of the State or contrary
constitutional principles or law enacted by the State legislature or
Parliament. Such unbridled power is not vested with the executive
of the State. If interference of the Courts is restricted totally, it is
difficult to control the acts of the State executive though executive
orders are contrary to the constitutional principles or law enacted by
the State legislature or Parliament. Therefore, no such unbridled
power is vested on the State to take any decision to cause
substantial damage to the fundamental rights of the citizens of the
State.
It is true that the judicial review of the policy, evolved by the
government, is limited. When policy according to which or the
purpose for which discretion is to be exercised is clearly expressed in
the statute, it cannot be said to be an unrestricted discretion. In
matters, affecting policy and requiring technical expertise the Court
would leave the matters for decision of those who are qualified to
address the issues. Unless, the policy or action is inconsistent with
the Constitution and the laws are arbitrary, irrational and abuse of
power, the Court will not interfere with such matters. (Vide:
Federation of Railway Officers Association v. Union of India76)
When the decision taken by the Executive is tainted by mala
(2003) 4 SCC 289
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fide or politically motivated, the Court may interfere with such
administrative decisions.
Though the State has every right to regulate its affairs, the
manner in which the Government chooses to ascertain the factor of
higher acceptability, must in the very nature of things, fall within the
discretion of the Government, so long as, the discretion is not
exercised mala fide, unreasonably or arbitrarily. However, the basis
for determination is not only relevant but also fair. No direction can
be given or expected from the Court regarding the 'correctness' of an
executive policy, but if there is infringement or violation of any
constitutional or "statutory provision", the Court must interfere
with such decision.
In "M.P. Oil Extraction v. State of M.P.77" the Hon'ble Apex
Court observed that the executive authority of the State must be held
to be within its competence to frame a policy for the administration
of the State and unless the policy framed is absolutely capricious
and, not being informed by any reason whatsoever, can be clearly
held to be arbitrary and founded on mere ipse dixit of the executive
functionaries thereby offending Article 14 of the Constitution or such
policy offends other constitutional provisions or comes into conflict
with any statutory provision, the Court cannot and should not
outstep its limit and tinker with the policy decision of the executive
function of the State. This Court, in no uncertain terms, has
sounded a note of caution by indicating that policy decision is in the
domain of the executive authority of the State and the Court should
not embark on the unchartered ocean of public policy and should
not question the efficacy or otherwise of such policy so long the same
1997(7) SCC 592
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does not offend any provision of the statute or the Constitution of
India. The supremacy of each of the three organs of the State i.e.
legislature, executive and judiciary in their respective fields of
operation needs to be emphasized. The power of judicial review of the
executive and legislative action must be kept within the bounds of
constitutional scheme so that there may not be any occasion to
entertain misgivings about the role of the judiciary in out-stepping
its limit by unwarranted judicial activism being very often talked of
in these days. The democratic set-up to which the polity is so deeply
committed cannot function properly unless each of the three organs
appreciate the need for mutual respect and supremacy in their
respective fields.
The same view was taken by the Apex Court in "Ugar Sugar
Works Limited v. Delhi Administration and Others78" "Bhavesh
D. Parish and Others v. Union of India and Another79", "Netai
Bag and Other v. State of West Bengal and Others80"
Thus, the catena of decisions (referred above) directly
cautioned the Courts not to interfere in the policy decisions of the
State unless they are tainted by mala fide and contrary to the
Statute or provisions of Constitution.
In "Secretary of Agriculture v. Central Roig Refining Co.81"
Mr. Justice Frankfurter of the U.S. Supreme Court observed:
"Congress was confronted with the formulation of policy peculiarly
within its wide swath of discretion. It would be a singular intrusion of the
judiciary into the legislative process to extrapolate, restrictions upon the
formulation of such an economic policy from those deeply rooted notions of
(2001) 3 SCC 635
(2000) 5 SCC 471
(2000) 8 SCC 262
(1949) 338 US 604 (617)
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justice which the Due Process Clause expresses."
The Apex Court in "M/s Bajaj Hindustan Ltd. vs. Sir Shadi
Lal Enterprises Limited and Others82" held that the judiciary
should never interfere with administrative decisions. However, such
interference should be only within narrow limits e.g. when there is
clear violation of the statute or a constitutional provision, or there is
arbitrariness in the Wednesbury sense. It is the administrators and
legislators who are entitled to frame policies and take such
administrative decisions as they think necessary in the public
interest. The Court should not ordinarily interfere with policy
decisions, unless clearly illegal.
In view of the law declared by the Apex Court, the Courts
must be slow in interfering with the policy decisions of the State,
but the power of the Court is not taken away in interfering with the
policy decisions when they are contrary to the provisions of the
Constitution or against any statute.
In the present case, as discussed in the earlier paragraphs,
provisions of the Andhra Pradesh Revised Pension Rules, 1980 more
particularly Rule 50 was not amended by the State legislature, but
executive instructions were issued in the name of clarification and
included amendment to rule. Therefore, it is neither clarification nor
amendment to the Andhra Pradesh Revised Pension Rules. The
State executive in utmost haste appears to have passed such
serendipitous impugned Government Order even without examining
the impact on the family pensioners, more particularly divorced
daughter/widowed daughters of the deceased government servants
and its consequences. State executive did not examine rationale
(2011) 1 SCC 640
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behind such classification while issuing such instructions.
Therefore, executive instructions in the impugned G.O.Ms.No.152
Finance (HR.III - Pension) Department dated 25.11.2019 is violative
of Articles 14, 21 and 300-A of the Constitution of India and the
Andhra Pradesh Revised Pension Rules. Therefore, this Court can
interfere with such policy decision as it is violative of Articles 14, 21
and 300-A of the Constitution of India. Hence, the contention of
learned Government Pleader for Services - I is hereby rejected.
Some of the petitioners also claimed interest on the arrears of
family pension. In fact, the Division bench of this Court has ordered
payment of interest at the rate of 12% per annum on pension in
"Dinavahi Lakshmi Kameswari v. The State of Andhra
Pradesh" (to which I am a member) (referred supra), but the Apex
Court in "State of Andhra Pradesh v. Dinavahi Lakshmi Kameswari"
(Special Leave to Appeal (c) No.12553 of 2020) scaled down the
interest to 6% from 12% while conforming the order of this Court,
the same is applicable to the present facts of the case. Therefore,
based on the judgment of the Apex Court in the judgment referred
supra, interest at the rate of 6% on the arrears of family pension
payable to the petitioner is hereby awarded directing the
respondents to pay arrears of family pension together with interest
at 6% per annum.
In view of my discussion in earlier paragraphs, I find that the
executive instructions will not override or prevail over the statute or
statutory rules framed exercising power under Article 309 of the
Constitution of India and that the G.O.Ms.No.152 Finance (HR.III -
Pension) Department dated 25.11.2019 is violative of Articles 14, 21
and 300-A of the Constitution of India.
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In the result, the writ petitions are allowed setting aside the
G.O.Ms.No.152 Finance (HR.III - Pension) Department dated
25.11.2019 making it clear that the respondents shall continue to
pay the family pension to the petitioners as paid to them earlier.
Further, the State Government/respondents are directed to pay the
arrears of family pension to the petitioners with interest at the rate
of 6% per annum, from the day on which the family pension was
stopped to them, within two (2) months from today. No costs.
Consequently, miscellaneous petitions pending if any, shall
also stand dismissed.
_________________________________________
JUSTICE M. SATYANARAYANA MURTHY
05.03.2021
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