Gurdial Singh vs State of Haryana and Others

V.K. Bali, J.—Challenge herein is to note 2 to rule 6.27 sub-rule (3) of the Punjab Family Pension Rules of Punjab Civil Services Rules Vol. II which in turn does not recognise marriage after retirement.

Brief facts of the case that constrained petitioner Gurdial Singh to challenge note 2 to rule 6.27 sub-rule(3) need a brief mention. Petitioner joined as a constable in Punjab Police in 1948. He was married with one Satyawati and out of this wedlock two sons and one daughter were born who are presently married and settled. The wife of the petitioner, however, died on 21.1.1980 and on 1.3.1986 the petitioner superannuated from the post of Head Constable that he was holding in the Haryana Police. Before his superannuation, he rendered 38 years of service. In January, 1994, the petitioner married one Chhinder Kaur, stated to be a widow as her first husband died. In the same very year the petitioner informed his employer for changing the name for the purpose of family pension and thus, incorporating the name of his wife Chhinder Kaur. The Superintendent of Police recommended the change of name for the purpose of family pension to Accountant General, Haryana. However, the request of the petitioner was turned down by Accountant General on the basis of note 2 rule 6.27 sub-rule (3).

Rule 6.17 dealing with the family pension defines family in sub-rule (3) as follows:-

(3). "Family" for purposes of this Scheme will include the following relatives of Government employees;

(a) wife in the case of a male Government employees and husband in the case of a female Government employee;

(b) a judicially separated wife or husband, such separate not being granted on the ground of adultery, provided the marriage took place before the retirement of the Government employee and the person surviving was not held guilty of committing adultery; and

(c) minor sons; and

(d) unmarried daughters below the age of 21 years.

Note 1: (c) and (d) will include children adopted legally before retirement.

Marriage after retirement will not be recognised for purposes of this Scheme."

The learned counsel representing the petitioner vehemently contends that note 2 of rule 6.17 sub-rule (3) is arbitrary and as such ultra vires Article 14 of the Constitution of India. For the aforesaid contention the learned counsel relies upon two judgments of the Apex Court in Laxmi Kunwar (Smt.) v. State of Rajasthan 1993(8) S.L.R. 427 and Kanta Devi Vs. Union of India (UOI) and Others, . The facts culminating into order passed by the Supreme Court in Laxmi Kunwar''s case (supra) would reveal that Tej Dan late husband of the petitioner was working as Patwari in the service of the State of Rajasthan and he retired from service on June 30, 1980. After his retirement only he married the petitioner Laxmi Kunwar and shortly thereafter he died. The Rajasthan Government denied family pension to the petitioner on the ground that Tej Dan married her after retirement and under the rule she was not entitled to pension. The petition under Article 32 of the Constitution of India came to be filed in the Supreme Court challenging the vires of the relevant rules. Rule 268-D dealing with the family pension rule that came to be discussed in Laxmi Kunwar''s case (supra) reads thus:-

"(1) "Family" for the purposes of this chapter, will include the following relations of the officer:-

(a) wife, in the case of a male officer,

(b) husband, in the case of a female officer,

(c) minor sons; and

(d) unmarried minor daughters.

Note

(1) (c) and (d) will include children adopted legally before retirement.

(2) Marriage after retirement will not be recognised for the purpose of this rule."

Placing reliance upon earlier judgment in Smt. Bhagwanti Vs. Union of India (UOI), , the Supreme Court held that note 2 to rule 268D reproduced above was arbitrary and as such ultra vires Article 14 of the Constitution of India. A comparison of note 2 of rule 268-D and note 2 of rule 6.17 sub-rule 3 would demonstrate that the same are absolutely identical. That being so, the question posed in the present petition is not res interga but, in fact, stands clinched in favour of the petitioner by the judgment of Apex Court in Laxmi Kunwar''s case (supra). Nothing at all could be urged on behalf of the respondents that may detract from the contentions raised by the learned counsel on the vires of note 2 to 6.17 sub-rule (3) is struck down being ultra vires Article 14 of the Constitution of India. Consequently, a direction is issued to the respondents to forthwith nominate Chhinder Kaur as nominee of the petitioner in the relevant pension papers. 6. The writ petition is accordingly allowed. However, the parties are left to bear their own costs.