Neelima Bhatnagar vs Union Of Iindia
1986 Latest Caselaw 217 Del

JUDGMENT

B.N. Kirpal, J.

(1) In this petition filed u/Art. 226 of the constitution the claim is for payment of higher family pension to the petitioner and her child.

(2) The husband of the petitioner, Capt. M.K. Bhatnagar, to whom she was married on 9th May, 1971, was working as an Assistant Commandant in the B.S.F. On 1.6.72 Capt. M.K. Bhainagar died while on duty. He left behind his widow namely, the petitioner and also a minor daughter, who was born on 15.2.72. It is not in dispute that the petitioner and her daughter are entitled to the benefits of the family pension. Vide letter dt. 13.6.73 petitioner was informed that she will get a family pension of Rs. 96.00 only. The petitioner represented against this by contending that her husband had died while on duty. This representation was accepted and vide letter dt. 9.4.75 the sanction of the President was conveyed whereby the petitioner was awarded a family pension at the rate of Rs. 150.00 p.m. with effect from 2.6.72 till her death or remarriage whichever occurs earlier. The minor daughter was awarded an allowance of Rs. 13.00 p.m. with effect from 2.6.72 till 14,2.93 or till her marriage whichever was earlier. In addition the death-curn-retirement gratuity of Rs. 4,770.00 was also sanctioned.

(3) Government of India, Ministry of Finance, enhanced and revised the rates of pension which were being paid. An office Memo. dated 26.8.76 was issued whereby the monthly pension payable to a widow was increased w.e.f. 1.1.73. With respect to the Govt. servant who was getting a pay of Rs. 400.00and above but below Rs. 1200.00 with which we are concerned in the present case, the monthly pension payable was 25% of the pay subject to a maximum of Rs. 250.00 and a minimum of Rs. 125.00. It may here be stated at the time of his death Capt. Bhatnagar was drawing a pay of Rs. 795.00 plus allowances (Net pay of Rs. 875.00)-Reference need be made to one more Office Memo. that is dated 4.8.80. By the said memo, it was provided that the allowance to the child, in the case of an unmarried daughter, would be paid until her marriage or till she attained the age of 24 years. In view of this the daughter of the petitioner, unless she gets married should be entitled to get her allowance up to 14.2.96, the date on which she will attain the age of 24 years. But the only fly in the ointment is a clause which has been inserted in the said memo. dt. 4.8.80, wherein it is stated that these orders would apply to only those cases where the Government Servants had retired or died in service on or after 29.3.78

(4) The claim of the petitioner before the respondents was that she shou

(5) The need for revising the pension which is paid either to the retired Govt. Officials or to members of their families arises because of the inflation which takes place. In order to mitigate the hardship of rising costs and prices the Govt. from time to time revises the pay and the pension which is payable to the existing and former employees. It is presumably for this reason that the family pension was enhanced w.e.f. 1.1.73. If there was an inflation which necessitated the enhancement of pension, surely then the hardship which was being caused by the rising prices was also being felt by those Govt. servants and the families of those Govt. servants who bad retired or died, respectively, prior to 1.1.73. All the Govt. servants who had died are similarly placed. There is no warrant for making any distinction amongst them by having an artificial date of 1.1.73. There is no valid reason as to why the benefit of enhanced pension should be denied to those cases where the Government servants had retired or died prior to 1.1.73. The financial constraints now pleaded by the Government is not a good enough reason for meting an unfair and discriminatory treatment. The Supreme Court had occasion to deal with a similar situation in D.S. Nakara vs. Union of India , where a question arose whether the liberalised pension formula which was introduced could be made effective only from 1.4.79 and whether the same could be denied to those officials who had retired prior to that date. The challenge in the said writ petition was that there could be no discrimination and the pensionary benefits should be available to all irrespective of the date of retirement. The submission was that the action of the Govt. had resulted in violation of Article 14 of the Constitution. This contention was accepted by the Supreme Court. It observed that the classification sought to be made was hit by Article 14. While noting that the impugned memorandum did not spell out the reason for liberalising the pension formula, the Court took note of the fact that the Government had stated in its affidavit that the decision to increase the pension was taken in view of the persistent demand of the employees for such an increase. The Supreme Court, in this connection, observed as follows :- "...WHENGovernment favorably respond. ed to the demand it thereby ipso facto conceded that there was a larger available national cake part of which could be utilised for providing higher security to while government servants who would retire. The Government also took note of fact that continuous upward movement of the cost of living index as a sequel of inflationary inputs and diminishing purchasing power of rupee necessitated upward revision of pension. If this be the underlying intendment of liberalisation of pension scheme, can anyone be bold enough to assert that it was good enough only for those who would retire subsequent to the specified date but those who had already retired did not suffer the pangs of rising prices and falling purchasing power of the rupee ? What is the sum total of picture ? Earlier the scheme was not that liberal keeping in view the definition of average emoluments and the absence of slab system and a lower ceiling. These who rendered the same service earned less pension and are exposed to the vagary of rising prices consequent upon the inflationary inputs. If, therefore, those who arc to retire subsequent to the specified date would feel the pangs in their old age, of lack of adequate security, by what stretch of imagination the same can be denied to those who retired with lower emoluments and yet are exposed to the vagaries of the rising prices and the falling purchasing power of the rupees. And the greater misfortune is that they are becoming older and older compared to those who would be retiring subsequent to the specified date. The Government was perfectly justified in liberalising the pension scheme. In fact it was overdue. But we find no justification for arbitrarily selecting the criteria for eligibility for the benefits of the scheme dividing the pensioners all of whom would be retirees but falling on one of the other side of the specified date."

(6) In our opinion, therefore, there is no justifiable reason for the respondents 10 deny the benefit of enhanced pension to the petitioner. We accordingly allow the writ petition. A writ of mandamus is issued to the respondents directing them to refix the family pension of the petitioner with effect from 1.1.73 and give her benefits of the aforesaid Office Memorandum dated 26th August, 1976 We further direct the respondents to give higher allowance, as and when awarded to the daughter of the petitioner till she attains the] age of 24 years or till she marries whichever is earlier. The amount of revised pension payable with effect from 1.1.73 will be determined by the respondents within two months from today and the pension so determined along with the arrears shall be paid to the petitioner within three months from today. The petitioner will also be entitled to costs Counsel's fee Rs. 1,000.00.