Smti. Anindita Bhowmik vs . State Of Meghalaya & Ors.
2022 Latest Caselaw 35 Meg

 Serial No. 01
 Supplementary List
                         HIGH COURT OF MEGHALAYA
                             AT SHILLONG


WP(C) No. 290 of 2020                         Date of Decision: 25.02.2022


Smti. Anindita Bhowmik            Vs.        State of Meghalaya & Ors.

Coram:
                    Hon'ble Mr. Justice H. S. Thangkhiew, Judge


Appearance:
For the Petitioner(s)             :       Mr. S. Sen, Adv. with
                                          Ms. S. Shallam, Adv.

For the Respondent(s)             :       Mr. N.D. Chullai, AAG with

Ms. I. Lyngwa, GA.

i)      Whether approved for reporting in                   Yes/No
        Law journals etc.:

ii)     Whether approved for publication
        in press:                                           Yes/No


                         JUDGMENT AND ORDER

1. The brief facts of the case are that the petitioner's father who

was an employee under the State respondents had retired on 31.08.1997,

and that during the lifetime of the petitioner's father, the younger brother

and the husband of the petitioner expired in the year 2002, the petitioner

thereafter became solely dependent upon her father, who however, also

expired in 2015, followed by her mother in 2016. The petitioner in these

circumstances, made representation to the competent authorities for the

grant of family pension to her, being a widowed daughter of the deceased

pensioner under the scheme extended vide O.M. dated 23.02.2010, issued

by the Finance Department, Government of Meghalaya which was

however rejected. Being aggrieved thereby, the petitioner is before this

Court.

2. Heard learned counsel for the parties.

3. Mr. S. Sen, learned counsel for the petitioner submits that vide

letter dated 06.11.2019 (Annexure 8) the respondents had rejected the

request of family pension on the ground that the father of the petitioner

had 'died' (sic) before the issuance of the Amendment Rules on

04.11.2010, which were initially brought about by O.M. dated

23.02.2010. Learned counsel further submits that the stand taken by the

respondents is incorrect, as the memorandum states that the revised

provisions shall apply to State Govt. employees who retired/died in

harness after 1st January 2007. It is further submitted, that the said

Memorandum also contained revised provisions for calculation of

pension and provided that for Government employees retiring on or after

01.01.2007, before the date of issuance of Office Memorandum dated

23.02.2010, were to be governed by rules and orders which were enforced

before the issuance of the Office Memorandum dated 23.02.2010 which

he contends is not applicable to the case of the petitioner.

4. The learned counsel submits that in furtherance of Para - 13 of the

Memorandum dated 23.02.2010, the Meghalaya Civil Service (Pension)

Fifth Amendment Rules, 2010 was notified on 04.11.2010, and it was

provided therein, that the rules shall be deemed to have come into force

from 01.01.2007. It is submitted, that Rule 7 which amended the original

Rule 48, clearly provided under the Second Category that an

unmarried/widowed/divorced daughter, would be entitled to family

pension and the proviso thereto, mentioned that a person from the second

category would be entitled for family pension, only after other eligible

family members in the first category have ceased to be eligible to receive

family pension. The learned counsel submits that after the death of the

petitioner's mother in 2016, the only kin surviving is the petitioner, which

therefore, entitles her for family pension under the amended rules of

2010. Learned counsel contends that the stand taken by the respondents

that in view of the Office Memorandum dated 23.02.2010, and the NOTE

appended to Rule 2 of the Amendment Rules of 2010, that the petitioner

would not be eligible for family pension as her father retired from service

in the year 1997, that is much before 01.01.2007 is incorrect. He submits

that nowhere is it indicated that family members of the Government

employee who retired before 01.01.2007, would not be eligible to the

benefits provided under the amended rules, and that the amended rules

simply stated that the amendments contained therein would be effective

from 01.01.2007, as such, after the death of her mother who was granted

family pension, the petitioner being a widowed daughter is entitled to the

family pension.

5. To illustrate the fact that the stand taken by the Government would

lead to an absurd situation if the amendment rules of 2010 are available

only to the Government employees retiring after 01.01.2007, the learned

counsel has cited Rule 3 of the amended rules which provides additional

quantum of pension, when a pensioner attained the age of 80 years and

above, and submits that if a person retires in 2007 at the age of 58 years,

he would attain the age of 80 only in the year 2029, which would

effectively ignore the case of existing petitioners who have attained the

age of 80 years or above, on or after 01.01.2007, and as such, he contends

the stand of the State respondents is misplaced and inconsistent.

6. Mr. N.D. Chullai, learned AAG for the respondents apart from

other submissions, has relied upon the NOTE appended to Rule 2 of

amended Rule 39, and contends that according to the NOTE, a

Government servant who had retired on or after 01.01.2007, but before

23.02.2010, shall be governed by rules/orders that were in force

immediately before 23.02.2010, and the petitioner's father having retired

before 01.01.2007, the Office Memorandum dated 23.02.2010 and the

amendment rules dated 4th November, 2010 will not be applicable. He

further submits that therefore, for those Government servants who retired

prior to 01.01.2007, Rule 7 of the amendment rules of Rule 48, Second

Category of the Meghalaya Civil Services (Pension) Fifth Amendment

Rules 2010 will not be applicable, but the original principal rules of 1983

will be applicable, since the petitioner's deceased father retired before

01.01.2007.

7. Mr. N.D. Chullai, learned AAG, further submits that Rule 1(2) of

the Meghalaya Civil Services (Pension) Fifth Amendment Rules 2010,

clearly states that the said rules shall come into force on 01.01.2007,

which means that the Second Category of amended Rule 48 will not be

applicable in the case of the petitioner and that as per, unamended Rule

48 of the Meghalaya Civil Services (Pension) Rules 1983, widowed

daughters are not entitled to family pension.

8. Having heard the submissions of the learned counsel for the

parties, to the mind of the Court, the only issue that is relevant for

consideration of the case of the petitioner is the applicability of the

amended rules and whether, the same would entitle the petitioner to

family pension, in terms of the O.M. dated 23.02.2010, followed by the

Amended Rules dated 04.11.2010.

9. It appears that the State Government for the implementation of

Government's decision on the recommendations of the Fourth Meghalaya

Pay Commission had issued the Office Memorandum dated 23.02.2010,

for the revision of provisions/rules regulating pension/family

pension/gratuity/commutation of pension/disability pension/ex-gratia

lumpsum payment etc. By this Memorandum at point 6.3, at Category II

(d), provision had been made for payment of family pension to dependent

parents/unmarried/divorced/widowed daughter and the proviso thereto,

further provided that family pension to unmarried/divorced/widowed

daughters in Category II, shall be payable only after the other eligible

members in Category I ceased to be eligible to receive family pension.

10. In terms of the orders contained in the said Office Memorandum

dated 23.02.2010, formal amendments to the Meghalaya Civil Services

(Pension) Rules 1983, were made and the Meghalaya Civil Services

(Pension) Fifth Amendment Rules 2010, came into being on 04.11.2010.

Rule 7 of the amendment rules, amended Rule 48 of the principal rules

reads as follows:

"7. Amendment of Rule 48:- (1) Rule 48 (i) of the Principal Rule shall be renumbered as "48(1)" and substituted by the following:-

"48 (1). For the purpose of this rule, family shall include the following relatives of the Government servants:- "(a) First Category:-

(i) Widow or widower, up to the date of death or re-

marriage, whichever is earlier:

(ii) Son/daughter including widowed daughter up to the date of his/her marriage/re-marriage or till the date he/she starts earning or till the age of twenty five years, whichever is earlier.

Note 1: (ii) above will include legally adopted sons/daughters.

Note 2: Post-retiral spouses/children born after retirement: - The family pension is admissible to post- retiral spouses and children born/adopted legally after retirement.

"(b) Second Category: -

(iii) Unmarried/widowed/divorced daughter, not covered by First Category above, up to the date of marriage/re-marriage or till the date she starts earning or up to the date of death, whichever is earlier; and,

(iv) Parents who were wholly dependent on the Government servant when he/she was alive. Family pension to dependent unmarried/widowed/divorced daughter/parents shall continue till the date of death.

Provided that the family pension to unmarried/widowed/divorced daughters in "Second Category" and dependent parents shall be payable only after the other eligible family members in "First Category" have ceased to be eligible to receive family pension. 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:- The income criteria for dependency in respect of eligible "Second Category" family pensioner(s) shall be the minimum family pension including dearness allowance thereon."

This amendment, if applicable to the case of the petitioner as

contended by her learned counsel, would render her eligible to receive

family pension from the date her mother expired. The only question that

is to be determined, as observed earlier, is whether this amendment can

be said to cover the case of the petitioner.

11. It is noted that, the contents of the Office Memorandum dated

23.02.2010 at Paragraph - 2.1, has declared that the revised provision shall

apply to State Government employees who retire/die in harness on or after

1st January, 2007. The said paragraph is quoted herein below:

"2.1. These orders shall apply to all State Government employees governed by the Meghalaya Civil Services (Pension) Rules, 1983 and the Meghalaya Civil Services (Commutation of Pension) Rules, 1992. Save as otherwise provided in these orders, the revised provisions as per these orders shall apply to State Government employees who retire/die in harness on or after 1st January, 2007."

[Emphasis supplied]

12. This Memorandum and the selection of the cut-off date of 1st

January, 2007, is therefore, a creature of the report of the Fourth

Meghalaya Pay Commission, which as per the affidavit of the

respondents had been minutely examined and approved by a duly

constituted Empowered Committee. The Memorandum dated

23.02.2010, therefore is a governmental policy decision, and the terms

contained therein were thereafter transposed and came into being as the

Meghalaya Civil Services (Pension) Fifth Amendment Rules, 2010. By

the said amendment rules, Rule 1(2) has also provided that the rules shall

be deemed to have come in force on the first day of January, 2007.

13. The father of the petitioner had retired on 31.08.1997, prior to the

cut-off date of 1st January, 2007, which would therefore, make the

petitioner ineligible to avail of the family pension, which has been

afforded to widowed daughters of a deceased Government employee by

the amended rules. Though arguments have been advanced by the

petitioner that, as the last beneficiary who is her mother had expired in

2016, after the passing of the rules which would make the petitioner

eligible, this position cannot be accepted. Similarly, the arguments with

regard to the NOTE appended to Rule 2 of the amended rules, is of no

relevance in the consideration of this matter, as it relates to the dates that

have to be taken into consideration for computation of revised pension

and not entitlement 'per se'.

14. What emerges, therefore, is that 01.01.2007 is the cut-off date and

the benefit of the amended rules will be available only to those

Government employees retiring after 01.01.2007. Fixation of cut-off

date, though in this case, may seem unjust as the petitioner has been

deprived of the benefit allowed by the amended rules, but the law as it

prevails, has since held it to be, not violative of Article 14 of the

Constitution. Though, in the case of D.S. Nakara & Ors. vs. Union of

India reported in (1983) 1 SCC 305, it was held that all pensioners have

equal right to receive the benefits of a liberalized pension scheme and that

the introduction of a cut-off date had denied equality, this position as

observed in the case of Government of Andhra Pradesh & Ors. vs. N.

Subbarayudu & Ors. reported in (2008) 14 SCC 702 has considerably

been watered down. Para - 5, 6 and 7 which is relevant is quoted herein

below:

"5. In a catena of decisions of this Court it has been held that the cut-off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut-off dates is within the domain of the executive authority and the court should not normally interfere with the fixation of cut-off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab v. Amar Nath Goyal).

6. No doubt in D.S. Nakara v. Union of India this Court had struck down the cut-off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara case as observed in para 29 of the decision of this Court in State of Punjab v. Amar Nath Goyal.

7. There may be various considerations in the mind of the executive authorities due to which a particular cut-off date has been fixed. These considerations can be financial, administrative or other considerations. The court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut-off date. The Government must be left with some leeway and free play at the joints in this connection."

15. The affidavit of the State respondents, has also clearly outlined the

manner in which the cut-off date was arrived at, and the process that was

undertaken by the Executive in this regard. The said decision being a

reasoned policy decision on the facts of this case, the same cannot be

said to be arbitrary or violative of Article 14 of the Constitution.

16. For the foregoing reasons, the writ petitioner is not eligible to avail

of family pension, inasmuch as, she would be governed by the original

Rule 48 of the Meghalaya Civil Services (Pension) Rules of 1983.

17. The writ petition accordingly stands dismissed.

18. No order as to costs.

Judge

Meghalaya 25.02.2022 "D. Thabah-PS"