Eleamma Mathew vs State of Kerala

L. Manoharan, J.—Common questions arise for adjudication in these Original Petitions. For convenience, Exhibits in O.P. No. 5294 of 1988 will be referred to unless otherwise stated. In O.P. No. 5294 of 1988 and O.P. No. 1827 of 1991 the main challenge is against Clause 34 of Ext. P-5 Government order. In O.P. No. 6316 of 1988 the main challenge is against Ext. P-4 in the said case. Ext. P-4 is a communication by which the request in Ext. P-2 in that original petition was declined. The main prayer is to quash Ext. P-4 and also to strike down Clause 15 of Ext. P-5 (Ext. P-3 in the said O.P.).

Ext. P-5 Government order consolidates the conditions and procedure for applying for employment assistance under the Dying-in-harness Scheme. Clause 34 reads:

Employment assistance under the scheme will be given only on fulfilment of the general conditions mentioned above. Appointment shall be given to one eligible dependent of the deceased Government servant. If on examination one applicant (dependent) is found ineligible for employment assistance and on rejection of his application the applications submitted by other eligible dependents shall be considered. This concession shall be made operative with respect of cases of deaths occurred on or after 1st July 1983.

Petitioners in O.P. 5294 of 1988 and O.P. 1827 of 1991 challenge the restriction as to the operation of the said clause because of the condition therein to the effect that the said concession will be operative only with respect to cases of death occurred on or after 1st July 1983. According to the said Petitioners the classification of dependents with reference to the date of death of Government servants is arbitrary, unjust and inequitable, and hence is violative of Article 14 of the Constitution. As has noted, in O.P. 6316 of 1988 the maim challenge is against Ext. P-4 and the Petitioner also challenges Clause 15 of Ext. P-5 G.O. as opposed to Article 14 of the Constitution. According to the Petitioner the classification of the dependents of Government, employees who died on or before 1st July 1983 enjoining that the former should satisfy the condition as to the income limit of the family of the deceased Government servant whereas the latter need not, is not a reasonable classification and hence the said clause is invalid.

In O.P. 5294 of 1988 the Petitioner''s father died in harness on 16th November 1977. He left behind his widow, a son and four daughters. The son applied on 21st January 1978 for the benefit under the Scheme as a dependant of the deceased Government servant. The application was rejected; according to the Petitioner the rejection of the application was on the ground that the income of the family of the deceased government servant exceeded the limit fixed by the Government. At the time of the death of the father the Petitioner was a minor. She became major on 25th April 1984. Within three years of attaining majority she submitted Ext. P-4 application on 23rd February 1987 for employment under the Dying-in-Harness Scheme. That application was also rejected by Ext. P-6. Though Ext. P-6 did not give any specific reason for rejection of her application, reason is stated in Ext. P-7. Ext. P-7 states that, as per the existing rules the request from Anr. candidate can be entertained only in respect of cases of death which occurred on or after 1st July 1983 and since the death of the Petitioner''s father occurred prior to 1st July 1983, she is not entitled to the benefit. According to the Petitioner, she is entitled to apply again as per clauses 34 of Ext. P-5 and the restriction in the said clause that the said concession will be operative only with respect to dependants of Government servants who died on or after 1st July 1983 is discriminatory and unjust. Therefore the said part of Clause 34 being violative of Article 14 of the Constitution is liable to be struck down.

In O.P. 1827 of 1991 the Petitioner''s father who was a Teacher in a Government school died in harness on 26th December 1963. The Petitioner''s elder brother applied for employment assistance under the Dying in Harness Scheme on 13th June 1983. That application was rejected by Ext. P-2, dated 26th April 1984. The Petitioner was a minor at the time of the death of the father. He attained majority on 25th May 1979. He submitted an application on 30th May 1988. Since the said application was out of time, he filed an application for condoning delay before the Chief Minister and obtained Ext. P-5 communication wherein it was stated that the delay in submitting the application for employment assistance has been condoned by the Chief Minister. But it proceeded to state that the employment assistance would be considered only if the Petitioner is found to be otherwise eligible. According to him even though his earlier application was rejected by Ext. P-4 since the same was rejected not at the Government level but by the Director of Public Instruction, his application, dated 30th May 1988 has to be entertained as per Clause 34 of the G.O., dated 17th December 1987. He also challenged the validity of the restriction to the effect that the concession would be operative only if the death of the Government servant occurred on or after 1st July 1983 as discriminatory and illegal.

In O.P. 6316 of 1988 the Petitioner''s father who was a Physical Education Lecturer in the Maharaja''s College, Ernakulam died in harness on 7th July 1970. The Petitioner''s date of birth is 28th May 1961. On attaining majority he applied for employment assistance on 31st July 1979. At that time his mother was a P.D. teacher and the annual family income was Rs. 6,560. The claim of the Petitioner was rejected by Ext. P-1 by the Director of Collegiate Education on the ground that the income of the family exceeded Rs. 6,000. In view of Ext. P-1, he submitted Ext. P-2 application to the Chief Minister to relax the said condition. But Ext. P-2 was rejected by Ext. P-4 order. The Petitioner challenges Ext. P-4 on the ground that the same did not give reasons and that the said rejection is without considering the relevant factors; the said order is arbitrary and therefore the same is liable to be quashed. He also has challenged Clause 15 of Ext. P-5 (Ext. P-3 in this O.P.).

It is convenient to deal with O.P. 5294 of 1988 and O.P. 1827 of 1991. The challenge by the Petitioners in O.P. 5294 of 1988 and O.P. 1827 of 1991 is against Clause 34. The applications of the Petitioners were rejected on account of fact that Anr. dependent had applied for the employment assistance before those Petitioners applied for the same and the request of the said dependant was declined. The brother of the Petitioner in O.P. 5294 of 1988 had applied for employment assistance and the same was rejected as per Ext. P-1 order; and in the case of the Petitioner in O.P. 1827 of 1991 his elder brother applied for employment assistance and that was declined on 26th April 1984. Clause 34 of Ext. P-5 G.O. enables to entertain the application by Anr. eligible dependent even if the application by Anr. dependent was rejected on an earlier occasion provided the death of the Government servant was on or after 1st July 1983. As noted since the father of the Petitioners in both the said O.Ps. died before the said date in terms of Clause 34 as it stands they are not entitled to apply. Therefore they challenge the classification of dependents in Clause 34 into two classes as dependents of employees who died after 1st July 1983 and those dependents of employees who died before 1st July 1983 and admit the former to the preferential treatment as arbitrary and unjust. Though an earlier application by the Petitioner in O.P. 1827 of 1991 was rejected, the Petitioner maintains, since the same was not rejected at Government level, he is entitled to apply again but for the said restriction in Clause 34 as to its operation. Thus it become necessary to examine the said challenge against Clause 34.

According to these Petitioners the classification in Clause 34 since is not based on an intelligent differentia which would distinguish dependants of Government servants who died prior to 1st July 1983 and who died on or after 1st July 1983, is not a reasonable classification and hence is violative of Article 14 of the Constitution. It is also their case that the non-eligibility of the benefit to the dependents of those Government servants who died prior to 1st July 1983 has no rational relationship to the object to be achieved by the said Government order. On the other hand, the Respondents have sought to support the said Clause 34 contending that it is open to the Government to choose a date from which a Government Order is to take effect. The said date is not arbitrarily fixed, it was from that date the recommendation of the 4th Kerala State Pay Commission took effect. According to the Respondent the said clause as it stands is consistent with the object of the Government Order to give assistance to dependents during the period immediately after the death of the Government servant. It was also contended by the Respondents that the said date was fixed as per the decision of the council of Ministers, and that re-opening of such cases would create administrative problems.

Any statutory rule, regulation or notification or bye-law being a law within the meaning of Article 13(3)(a) will be invalid if it contravenes fundamental rights under Articles 14, statutory rules or administrative orders even though may not fall within the definition of law under Article 13(3) will be invalid if they contravene any of the fundamental rights because executive action by the Government comes under the definition of ''State.'' under Article 12 which is bound by fundamental right. Therefore if it is shown that Clause 34 of Ext. P-5 or any part thereof is violative of Article 14 of the Constitution as is contended by the Petitioners, then the same will be void. Article 14 prohibits class legislation; but that does not mean that reasonable Classification is not possible. Article 14 enjoins equal protection which implies equality of treatment in equal circumstances. In the decision in D.S. Nakara and Others Vs. Union of India (UOI), as regards the test to be satisfied in such circumstance it is stated in paragraph 16:

Legislative and executive action may accordingly be sustained if it satisfies the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved.

Therefore if only the offending portion in Clause 34 satisfies the said two tests can it have validity.

In this context it may be necessary to understand Ext. P-5. Ext. P-5 Government Order consolidates the previous four Government Orders and lays down the procedure and conditions to-be satisfied by the dependent of Government servants who died in harness for the benefit of employment under the dying in harness scheme. The said G.O. enumerates as to who are the dependents, the conditions as regards eligibility, income limit, the minimum service of the Government servant, qualification, time limit for preferring the application, category of appointment etc., and also enumerates the general condition to be satisfied. Clause 36, throws much light on the object of the scheme; it states the intention is to help the bereaved family of the Government servants. The first G.O. conferring the benefit to the dependents of Government servants who died in harness was on 21st January 1970. Thereafter the successive Government orders were issued. The history of the scheme shows a preference to the lessfortunate to the fortunate; a preferential treatment to those whose bread winner died. The dependents lose not only the income, but they lose the privilege of affection and sense of security by the death of the Government servant. A grateful State, true to its high traditions and values considered that it is duty bound to help the family of the Government servant who served it; and in its wisdon decreed the best way to discharge that duty is to offer a job to one of the dependents so that at least to some extent the measure could restore the means of livelihood and the honour of participation in the administration. Clause 34, cannot be read in isolation, the same has to be read and understood against the backdrop of the history and aim of the said G.O. Having understood the object as above, now the question for consideration is, whether the classification made in the said Clause 34 between the dependents of the Government servants who died on or after 1st July 1983 and those who died before the said date is a reasonable classification based on any rational principle and whether the same has nexus with the object to be achieved. The Petitioner''s counsel streneously contended that, the classification neither is based on any rational principle nor has it any nexus with the object to be achieved. In D.S. Nakara and Others Vs. Union of India (UOI), referred to early, on May 25th, 1979 the Government of India, Ministry of Finance issued Office Memorandum No. F-19 (3)-EV-79 whereby the formula for computation of pension was liberalised but made it applicable to Government servants who were in service on March 31, 1979 and retired from service on or after that date. By the Memorandum of the Ministry of Defence, dated 28th September 1979 the liberalised pension formula introduced for Government servants governed by 1972 rules was extended to the Armed Forces personnel subject to limitations stated in the memorandum with a condition that the new Rules of Pension would be effective from 1st April 1979 and would be applicable to all service officers who became non-effective on or after that date. In short the liberalised pension formula ''was made applicable prospectively to those who retired on or after 31st March 1979 in the case of Government servants covered by 1972 rules and in respect of defence personnel those who became non-effective on or after 1st April 1979. Consequently those who retired prior to the specified date would not be entitled to the benefits of the liberalised pension formula. This was challenged.

Examining the said question, in paragraph 42 it is stated:

If it appears to be undisputable, as it does to us that the pensioners for the purpose of the pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such classification be founded on some rational principle? The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved.

...The equal treatment guaranteed in Article 14 is wholly violated inasmuch as the pension rules being statutory in character, since the specified date, the rules accord differential and discriminatory treatment to equals in the matter of commutation of pension. A 48 hours'' difference in matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore, the classification does not stand the test of Article 13.

Ultimately the court found the offending part is violative since the classification of a homogeneous class is not based on discernable rational principle and held that such portion is violative of Article 14 of the Constitution and is liable to be struck down. In the decision in Smt. J.S. Rukmani and Others Vs. Government of Tamil Nadu and Others, the question that arose for consideration was the validity of limitation imposed by the Government Order of the State of Tamil Nadu confining the benefit of family pension to the members of the family of only those Government servants who last served at a place falling within the ''territories'' of the successor State of Tamil Nadu. It was held that the said restriction is violative of Article 14 of the Constitution It is observed in paragraph 9:

The object of the Notification dated 26th May 1979 does not warrant any such distinction to be made between the widows of one class of Government servants and the widows of Anr. class merely on the basis of the place where the Government servant last served at the time of superannuation although in both cases the Government servant served the same State, namely the former State of Madras and superannuated before the reorganisation of the States. We are therefore of the view that the restrictive limitation imposed by the Government order dated 18th March 1982 confining the benefit of family pension to the members of the family of only those Government servants who last served at a place falling within the territories of the successor State of Tamil Nadu must be held to be violative of Article 14 of the Constitution and hence unconstitutional and void.

In the decision in State of Rajasthan Vs. Gurcharan Singh Grewal and others, the benefit of option in the matter of compensatory allowance given to employees who joined Beas Project before 14th September 1972; but was denied to the employees who joined the project after the said date. It was held that the denial of the compensatory allowance was arbitrary and that they were discriminated against persons who were similarly placed.

The dependents of Government servants who die in harness forms a homogeneous class does not admit of any doubt. The question for consideration is, whether the classification of that homogeneous class into two class of dependents of Government servants who died on or after 1st July 1983 and those dependents of Government servants who died before the said date, is a reasonable classification and whether the same has got nexus with the object sought to be achieved by the Government order in question. As has noted the very history and the scheme of the Government order itself would show that the object is nothing but to extent the help to the family of the deceased Government servant. As noted it is not a monetary benefit that is extended but is the benefit of employment to a dependant. That brings along with it not only monetary benefit but also status and security. This is demonstrably clear from a reading of Clause 36 of the G.O. Clause 34 states that the rejection of an application of a dependent cannot be a bar for the application of Anr. eligible dependent. It is then followed by the condition that the said benefit would be available only in respect of cases of death occurred on or after 1st July 1983. The purpose of the said clause is the anxiety to extend the benefit to the family. The rejection of the application of one of the dependants of the deceased Government servants on the ground that he is not eligible cannot be a bar for an application by Anr. eligible dependant, it is impossible to understand rationale behind the classification that such benefit could be available only if the Government servant died on or after 1st July 1983. If, as has noted, since the dependents of government servants who died in harness forms a homogeneous class, the benefit extended to such dependents cannot normally be taken away on the basis of a classification which in no way can advance the object behind the said scheme. The pay revision cannot have any bearing in relation to the offending portion in Clause 34.

Equal protection under Article 14 implies equality of treatment in equal circumstance. So one has to be satisfied that there was equality of treatment of persons who are similarly situated. In the decision in The State of Gujarat and Another Vs. Shri Ambica Mills Ltd., Ahmedabad and Another, it is stated in paragraph 53:

A reasonable classification is one which includes all who are similarly situated and none who are not. The question then is: what does the phrase ''similarly situated'' mean? The answer to the question is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law.

Thus applying the test with due regard to the purpose of the Government Order, the dependants of the Government servants who died in harness are persons similarly situated. As has already noted the said classification has no co-relation to the object sought to be achieved.

But the learned Additional Advocate General contended that the said date is not arbitrarily fixed, the Respondents are free to fix a date from which a particular Government order is to take effect and that the burden is on the Petitioner to show that the classification is arbitrary. Reliance was placed by the learned Additional Advocate General on the decision in D.G. Gose and Co. (Agents) Pvt. Ltd. Vs. State of Kerala and Another, . In that it is held:

The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is'' shown to be a capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless we can say that it is very wide of the reasonable mark.

Learned Additional Advocate General also relied on the decision in The Anant Mills Co. Ltd. Vs. State of Gujarat and Others, and contended that all that Article 14 forbids is class legislation but not classification; reasonable classification is possible and that the onus is on the party who challenges the validity of the provision to make the necessary averments and place the necessary material to establish the discriminatory character of the provision. In Clause 34 of Ext. P-5 the fixing of date is with reference to the date of death of a Government servant and it does not as such concern the commencement of the said G.O. from the particular date. What the offending portion in Clause 34 does is to limit the benefit therein with reference to the date of death of the deceased Government servant. Thus the date of death of a Government servant on that particular date or after becomes the basis of fixing the date of the operation of the said clause consequently the question would be whether such classification has got co-relation to the object to be achieved. Therefore, the question for consideration in such circumstance is not as to the commencement of the Act; but as to whether the classification sought to be made between the dependents of the Government servant is a reasonable classification. As regards the contention by the learned Additional Advocate General on the basis of the decision in The Anant Mills Co. Ltd. Vs. State of Gujarat and Others, it has to be noted that, in these two original petitions there are specific averments as to why the offending portion in Clause 34 is arbitrary. They have also placed materials by producing the concerned Government Order to show that such classification is arbitrary and as to this aspect in paragraph 16 of D.S. Nakara and Others Vs. Union of India (UOI), it is stated:

Legislative and executive action may accordingly be sustained if it satisfies the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlates it to the objects sought to be achieved.

Thus the necessary averments having been made by the Petitioners and having produced relevant Government orders, the State has to affirmatively show that such classification satisfies the said two tests so that the same can be held to be valid. With due regard to the facts and circumstances adverted to early, it is not possible to accept the argument of the learned Additional Advocate General on the basis of the decision in D.G. Gose and Co. (Agents) Pvt. Ltd. Vs. State of Kerala and Another, and The Anant Mills Co. Ltd. Vs. State of Gujarat and Others, .

Then the learned Additional Advocate General contended that, the Scheme essentially being one for giving employment on compassionate ground it is not open to the Petitioner to question the scheme just like any other executive or legislative action. In the decision in Kasturi Lal Lakshmi Reddy, Represented by its Partner Shri Kasturi Lal, Jammu and Others Vs. State of Jammu and Kashmir and Another, , it is observed:

Where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual deal with any person it pleases, but its action must be in conformity with some standard or norm which is not arbitrary, irrational or irrelevant. The governmental action must not be arbitrary or capricious, but must be based on some principle which meets the test of reason and relevance.

Therefore, unless it is shown that the classification is based on intelligent differentia and the same has got nexus with the object to be achieved, the same would be invalid.

As has noted the offending portion in Cause 34 of Ext. P-5 "This concession shall be made operative with respect of cases of deaths occurred on or after 1st July 1983.", since is discriminatory the same is void and as such is liable to be struck down. When a classification is held to be not permissible and the offending words of limitation is struck down the resulting effect would be to enlarge the class which is entitled to the benefit. Thus that particular portion in Clause 34 has to be read down. One of the questions that would arise in such situation is, whether the said offending portion is severable. If only the offending portion is severable can the same be struck down. With due regard to the principles laid down in D.S. Nakara and Others Vs. Union of India (UOI), , it is clear that, the particular portion alone can be held to be invalid retaining the rest of the clause. Thus Clause 34 of Ext. P-5 must be read omitting the last sentence in the said clause. As a consequence of the said conclusion, it is necessary to quash Ext. P-4 in O.P. 5294 of 1988 and direct the Respondents therein to consider the application of the Petitioner, dated 23rd February 1987 for employment assistance afresh in accordance with law. So far as O.P. 1827 of 1991 as a result of quashing of the said offending portion in Clause 34 of Ext. P-5, and also in view of Ext. P-5 order (in the said O.P.) the Respondents therein are to be directed to consider Ext. P-6 application therein submitted by the Petitioner afresh in accordance with law.

In O.P. 6316 of 1988, according to the Petitioner his application for employment assistance, dated 31st July 1979 since was rejected by the Director of Collegiate Education by Ext. P-1 order, he made Ext. P-2 application for relaxation of the income limit as his application was rejected on the ground that the income limit of the family of the deceased Government servant exceeded Rs. 6,000. Ext. P-4 is the order therein. As has already rioted, according to the Petitioner'' Ext. P-4 is arbitrary, unjust and therefore is liable to be quashed; and alternatively he maintained that Clause 15 of Ext. P-5 in the O.P. is to be struck down as violative of Article 14 of the Constitution. If it is found that Ext. P-4 order suffers from the infirmities and consequently the same is liable to be quashed, the Respondents are to be directed to consider afresh Ext. P-2 application and pass appropriate orders; in that event it may not be necessary to go into the validity of Clause 15 of Ext. P-5. Therefore, the first question to be considered is whether the attack against Ext. P-4 is sustainable. The learned Counsel for the Petitioner in O.P. 6316/1988 pointed out that, though his mother was also employed, she retired on 31st March 1984 bringing down the income of the family. He also maintained that, in a similar case pursuant to Ext. P-5 judgment of this Court Ext. P-6 order in the said O.P. was passed assigning a liberal interpretation to the relevant clause and that since the Petitioner also is placed in the same position, it is necessary that the same consideration is extended to him also. Inasmuch as Ext. P-4 does not show that the relevant factors have been taken into consideration or that the same consideration that was shown to the applicant in Ext. P-6 was extended to the Petitioner, Ext. P-4 is unjust and consequently the same cannot be supported. The argument of the learned Additional Advocate General is that exercise of the power of relaxation as per Clause 29 of G.O. (P) 64/86/GAD, dated 28th February 1986 and Clause 35 of Ext. P-5 G.O. cannot be questioned as arbitrary. As already noted, in the decision in Kasturi Lal Lakshmi Reddy, Represented by its Partner Shri Kasturi Lal, Jammu and Others Vs. State of Jammu and Kashmir and Another, the Supreme Court has (sic) stated where the Government deals with public, whether by way of giving jobs or entering into contracts or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and like a private individual. In the decision in M.A. Rasheed and Others Vs. The State of Kerala, , it is held in paragraph 9:

Administrative decisions in exercise of powers even if conferred in subjective terms are to be made in good faith on relevant consideration.

Even if it is compassion, the exercise of the power cannot be arbitrary. In the decision in Smt. Kamala Gaind v. State of Punjab and Ors. 1990 (Supp.) S.C.C. 800, it is stated, "Even if it is compassion unless there be some basis there is no justification for discriminatingly extending the treatment". Ext. P-4 does not show that relevant facts were taken into consideration in arriving at a decision. In such situation Ext. P-4 is vitiated and consequently the same is liable to be quashed. In that view, it is not necessary to go into the validity of Clause 15 of Ext. P-5.

In view of the above discussion the last sentence in Clause 34 "This concession shall be made operative with respect of cases of deaths occurred on or after 1st July 1983" is declared invalid and is struck down. Clause 34 in Ext. P-5 shall be read excluding the said last sentence.

O.P. No. 5294 of 1988.--Ext. P-6 in O.P. 5294 of 1988 is quashed. Respondent therein are directed to restore the application, dated 23rd February 1987 filed by the Petitioner therein for employment assistance and consider and dispose of the same afresh in accordance with law.

O.P. No. 1827 of 1991.--In view of the striking down of the offending portion in Clause 34 of Ext. P-5, the first Respondent is directed to consider and dispose of Ext. P-6 therein afresh in accordance with law.

O.P. No. 6316 of 1988.--Ext. P-4 is quashed. The Respondents therein are directed to consider Ext. P-2 application filed by the Petitioner therein afresh and dispose of the same in accordance with law. The applications mentioned above shall be disposed of as expeditiously as possible at any rate within three months from the date of receipt of the copy of this judgment.

The original petitions are disposed of as indicated above.