Hardai vs Union Of India And Anr.
1994 Latest Caselaw 286 Del

JUDGMENT

K. Shivashankar Bhat, J.

(1) Petitioner, Hardai was the wife of Dafedar Har Chand. She filed the present writ petition seeking family pension. In the writpetition, there is no prayer for the grant of family pension from any particular date.According to the petitioner her husband joined the Army on 1.5.1911 and retired on 16.11.1921; he was a Dafedar in Unit 7th Hariana Lancers. It is stated in the Writ Petition that she was married to Harchand in the year 1920, prior to his discharge from the Army. On his retirement from the Army Harchand was getting a pension of Rs. 9.00 per month (a considerable sum having regard to the then purchasing power of the rupee). Harchand died on 14.11.1972. In the year 1977, a scheme was introduced for the payment of family pension for those who retired prior to the year1964. According to the petitioner, the minimum family pension was Rs. 196.00 in the year 1977 which was increased to Rs. 375.00 per month w.e.f. 1.1.1986. Petitioner submitted the necessary papers for the purpose of the grant of family pension toher. On 16.11.1987, petitioner was told (as per Annexure 'B') that her case was being considered.

(2) Petitioner has not stated in the writ petition as to when she submitted the papers seeking the pension. She has filed a copy of her affidavit dated 12.3.1987wherein she gave the date of her marriage with Harchand as 21.2.1922. In view of this affidavit, her request for the grant of pension was turned down, because at thattime, no family pension was payable in the case of the Army Personnel who married after he retired from the service. Further, the factum of Harchand'smarriage was not noted in any of the relevant Army records. Accordingly, order rejecting the claim of the petitioner for family pension was issued on 26.8.1987(Annexure 1). This was reiterated in another communication issued in September,1987, after the petitioner wrote back stating that her marriage was in the year 1920.Petitioner also filed another affidavit in this regard. In the writ petition also,petitioner has averred that her marriage with Harchand was .performed on21.2.1920 and they had a daughter born on 2.10.1921 and the date of the marriage was wrongly typed as 21.2.1922 in the first affidavit filed before the authorities while seeking the pension.

(3) During the pendency of this writ petition petitioner died on 4.11.1988. Her legal representatives came on record, thereafter.

(4) During the pendency of the writ petition, a family pension of Rs. 60.00 per month was paid for the period 20.8.1977 to 31.12.1985; the rate of pension was increased subsequently and w.e.f. 1.1.1986 to 4.11.1988 it was Rs. 375.00 per month.In C.M. 6915/1992, the L.R.s of the petitioner sought family pension for the period between 14.11.1972 to 20.9.1972 to gather with interest thereon at the rate of 18% perineum and to increase the rate to Rs. 175.00 per month.

(5) An order of this Court dated 18.1.1994 records that a sum of Rs. 27,418.10has already been paid to the petitioner on 11.5.1992 towards interim ad co-payment and that the petitioner questions the pension rate of Rs. 60.00 per month.

(6) A reply affidavit filed on 14.7.1993 on behalf of the respondents gives the basis for the payment made. It is averred in this affidavit that in the year 1989 the Government relaxed the earlier requirement as to the marriage to be of the deteriorate to the retirement and the pension scheme was extended even if the marriage took place after the retirement of the personnel. The affidavit also refers to the awardingthe incompleteness of the documents filed by the son of the petitioner after the latter's death and the resultant delay in the payment of the arrears. The basis for awarding the family pension at the rate of Rs. 60.00 per month is also given in this affidavit,which reads:- "IN accordance with Government of India, Ministry of defense letter No. F6(2)85/1689/B/D (Pension/Services) dated 8 Aug. 85 and letter No. 6(7)/87/D(Pension/Services) dt 5 Apr. 91 both att as R-1 (Collectively). Armed Forces personnel who retired before 1964 are entitled for family pension only from 22 Sep.77. Since the family pension as per Govt. orders was made applicable only from22 Sep. 77, Late Smt. Hardai was not eligible for family pension for the period from14 Nov 72 to 21 Sep 77. Her claim, therefore, was correctly passed as per Govt.Orders on the subject. As regards the claim of the petitioner that she was paid onlyRs. 60.00 Pm instead of Rs. 175.00 it is submitted that as per Government of India,Ministry of defense letter No. F6 (6)/86/D (Pension/Services) dated 12 May 86, the pay scale applicable to Sepoys and JCOs were such that family pensioner is entitled only to minimum of Rs. 60.00 per month. Hence the widow is only entitled for family pension @ Rs. 60.00 per month from 22 Sep 77 to 31 Dee 85 as per rules mentioned above and not Rs. 175.00 per month. It is further stated that all the family pensioners of pre-64 have been granted pension @ Rs. 60.00 per month w.e.f. 22 Sep77 and also no interest has been paid to any claimant as there is no such provision in the Government Rules. Further, as stated in para above, there was no delay whatsoever in finalising the claim. What ever delay occurred it was not due to the fault of respondents, but it was due to delayed submission/ incomplete documentation of the claim by the petitioner. Hence respondents are not liable to pay anyinterest."

(7) Respondents rely on the Government order dated 8.8.1985 (Annexure R-1)which contains the order granting the family pension. Earlier, pension was payable to those who had contributed two months' emoluments or who. surrendered an equal amount out of DCRG. This condition as to contribution was dispensed with from 22.9.1977.

(8) The learned Counsel for the petitioner submitted that petitioners would now contribute the aforesaid two months emoluments so that the family pension could be granted from the very date of the death of Harchand. I do not find any provision under which the contribution can be done by the widow or the legal representatives with retrospective effect.

(9) In the circumstances, the respondents are justified in confining the grant of pension w.e.f. 22.9.1977.

(10) Petitioner has not pointed out as to how the rate of pension should be more than Rs. 60.00 per month. Monetary claims should be supported by proper supporting material. On the basis of affidavits of the petitioner and her L.R.S, it is not possible to direct the respondents to pay to them out of public funds. The writ jurisdiction is not so comprehensive as to make it a jurisdiction of charity. Equity to be applied is to be within the jurisdiction of the Court. The extraordinary jurisdiction of this Court under Article 226 of the Constitution does not enable it to legislate or to reformulate the policy of the Government.

(11) The learned Counsel for the petitioner contended that denial of the familypension from the date of Harchand's death till 22.9.1977 is discriminatory. According to the learned Counsel, concept of family pension involves grant of pension immediately on the death of the pension holder.

(12) Pension is not a mere bounty. At the same time, it is payable by virtue of some law (or order having the force of law). In working out the scheme of pension,if there is any arbitrariness, this Court may intervene to remove the vitiatingelement. Earlier the scheme of family pension required some contribution to be made by the erstwhile Government employee. This requirement of contribution was removed only w.e.f. 22.9.1977. Till 22.9.1977 family pension could be granted only as per the scheme then in force.

(13) The learned Counsel for the petitioner strongly relied on the decision of the Supreme Court in D.S.Nakara v. Union of India: (1983) 2 Slr 246, in support of his contention that pension is not a bounty but given in consideration of past service and any scheme for the grant of pension should be liberally construed infamous of the person seeking pension. The proposition, as such, no doubt flows from the enunciation of the relevant principles by the Supreme Court. But, in the instant case, the principles stated by the Supreme Court are to be applied in the manner the Supreme Court applied the principles to the facts before the SupremeCourt. The Supreme Court did not say that the scheme of pension should be made retrospective under the circumstances. The Supreme Court held that benefit of the scheme should be extended to all the pensioners from the date when the benefit was granted to a few. In other words, in applying the scheme there shall not be any discrimination between one class of pensioners and another depending upon the date of the retirement of the pensioners. The scheme should be extended to the pensioners who retired prior to the date of the scheme; but the benefit is to granted only from the 'specified date', which was the date from which others were granted pension. In the said case, the Supreme Court was considering the applicability of the revised formula for computation of pension. The petitioners before the Supreme Court had retired in or about the year 1972, and were drawing certain amount of pensions. Pension Rules were liberalised and a new formula was introduced in May 1979; this formula was made applicable only to the employees of the Government who retired after 31/03/1979. The 'specified date'therefore was 1.4.1979/31.3.1979. Petitioners challenged this restriction which denied the benefit of the revised formulate them who retired prior to 31.3.1979.The Supreme Court held that there can be no valid criterion on which classification of pensioners retiring prior to specific date and retiring subsequent to that date can be made. However, while striking down the basis of the classification, the Supreme Court made it clear that "arrears are not required to made". At page 265, in para49 the Supreme Court held:- "BUT we make it abundantly clear that arrears are not required to be made because to that extent the scheme is prospective. All pensioners whenever they retired would be covered by the liberalised pension scheme, because the scheme is a scheme for payment of pension to a pensioner governed by 1972Rules. The date of retirement is irrelevant. But the revised scheme would be operative from the date mentioned in the scheme and would bring under its umbrella all existing pensioners and those who retired subsequent to thatdate. In case of pensioners who retired prior to the specified date, their pension would be computed afresh and would be payable in future commencing from the specified date. No arrears would be payable. And that would take care of the grievance of retrospectivity. In our opinion, it would make a marginal difference in the case of past pensioners because the emoluments are not revised. The last revision of emoluments was as per the recommendation of the Third Pay Commission (Raghubar Dayal Commission). If the emoluments remain the same, the computation of average emoluments under amended Rule may raise the average emoluments, the period for averaging being reduced from last 36 months to last 10 months.The slab will provide slightly under higher pension and if someone reaches the maximum the old lower ceiling will not deny him what is otherwise justly due on computation. The words 'who were in service on 31/03/1979,and retiring from service on or after that date" excluding the date for commencement of revision are words of limitation introducing the mischief and are vulnerable as denying equality and introducing an arbitrary fortuitous circumstance and can be severed without impairing the formula. Therefore, there is absolutely no difficulty in removing the arbitrary and discriminatory portion of the scheme and it can be easily severed."

(14) The learned Counsel referred to para 2 (b) of the letter dated 12/08/1986 (Annexure R-2) under which it was directed that family pension shall be paid to the families of Armed Forces personnel who retired or died before 1.1.1964 &who were otherwise not covered by the family pension scheme. The letter gave certain instruments on the subject. The relevant sub-para relied upon by the learned Counsel is as follows:- "PAY for Calculation of Family Persion:As the pay scales applicable to the Or and some of the JCOs and equivalent ranks in Navy and Air Force were such that family pension would be entitled at the minimum of Rs. 60.00 p.m. (Rs. 44.00 for Reservists), it has been decided that in respect of personnel below officers ranks, Cda (P) will sanction minimum family pension at Rs. 60.00 p.m. (Rs. 44.00 in case of Reservists) in all cases where pay particulars or presumptive pay has not been indicated by the Record Offices. If subsequently the pay details or the presumptive pay isavailable, on the basis of which family pension at higher rates would beadmissible, the Record offices will furnish revision claim while giving fulldetails. In the cases of JCOs and equivalent ranks in Navy and Air Force and officers where the pay or presumptive pay is not available the average of minimum and the maximum of the pay entitled in that rank/group may betaken as a basis for calculating the family pension. Such average pay will be intimated by the Record 0ffices/ Services HQrs to Cda (P) in the pensionclaims."

(15) I fail to understand, how the above instruction helps the petitioner. In fact family pension of Rs. 60.00 per month has been paid to the petitioner with effect from 20.9.1977 till 31.12.1985 and thereafter it was revised and a further revisionw.e.f. 1.11.1986 at Rs. 375.00 per month. The petitioner died on 4.11.1988.

(16) The L.R.s of the petitioner seek a direction for payment of family pension w.e.f. 14.11.1972 to 20.9.1977 and this claim is made on the ground that the husband of the petitioner died on 14.11.1972. Admittedly, there was no provision for payment of family pension w.e.f. 14.11.1972; no scheme was in force for payment of family pension on the said date. The family pension was payable under the relevant scheme only w.e.f. 20.9.1977. If so, the scheme cannot be made retrospective by compelling the payment of pension earlier to the said date.

(17) The delay involved in the release of the pension cannot be attributed to therespondents. Petitioner was responsible in giving the date of the marriage as21.2.1922. This was after the retirement of the personnel; the husband of the petitioner had been discharged from service on 16.11.1921. The Government order providing for the family pension was inapplicable to the case where the marriagetook place after the retirement. When this was brought to the notice of the petitioner, she asserted that the marriage was prior to the retirement of herhusband. In the year 1989, Government issued orders as per letter No. 6(7)/87/D(Pensioners/Service) dated 2.6.1989 to the effect that marriage solemnised by the Armed Forces Personnel after retirement also will be recognised for the grant of ordinary family pension, subject to certain conditions. Petitioner has been granted the pension thereafter w.e.f. 20.9.1977. In the circumstances, I am of the view that this is not a case to award any interest to the L.R.S of the petitioner.As no cause of action survives for consideration, the writ petition is dismissed without any order as to costs.