Kharak Singh Kang and Another vs State of Punjab and Another

M.R. Agnihotri, J.—In this petition filed under Articles 226 and 227 of the Constitution, petitioners Kharak Singh Kang and his wife Smt Devinder Kaur have approached this Court for the issuance of a writ of mandamus directing the State of Punjab to grant to them family pension being parents of late Daljit Singh, formerly Senior Clerk in the office of the Inspector General of Police, Punjab, who died on 5th November, 1985, while in service. Both the petitioners are about 70 years of age and were solely dependants upon their son Daljit Singh as both of them were unemployed and not earning anything.

Daljit Singh joined service as Clerk in 1973 and after putting in about 12 years'' service died in 1985. At the time of his death, Daljit Singh was still unmarried. After the death of Daljit Singh, the petitioners applied for the grant of family pension as under the Mew Pension Rules, 1951, the petitioners being parents of their unmarried deaceased son were entitled to the same. Under these rules, the definition of "Family" included "father and mother" if they were dependant upon the deceased for support. However, after waking for a considerably long period, when pension was not released to the petitioners, the present with petition was riled.

In reply to the writ petition, written statement has been filed in which it has been pleaded that the Family Pension Scheme provided under the New Pension Rules, 1951, was not applicable to the case of the petitioners because the deceased had joined service on 21st June, 1973, that is, after the enforcement of another Family Pension Scheme, of 1964 and under the latter Pension Scheme the parents (father and mother) of the deceased did not fall under the definition of "Family" for the grant of family pension in the case of death of their son.

Having heard the learned counsellor the parties. I find that the stand of the respondents is hyper-technical and the case of the petitioners deserves to be examined from a different angle. Undoubtedly, when the New Pension Rules came into force in 1951, parents of unmarried government servant were included in the definition of "Family" for the purpose of grant of Family Pension. Apart from this, similar provisions were also made in the Punjab Civil Service Rules, Volume II, for including parents, that is, father and mother, who were dependent on the deceased for support, in the definition of Family Pension, while considering the question of grant of such like pension in various other contingencies like Gratuity, Wound and Injury Pension, Pensions to Dependents of Private Individuals, etc. The relevant provisions are reproduced from the Punjab Civil Services Rules, Volume II (Rules relating to Pensions and Provident Funds) First Edition, 1953 :-

"8. 14-A Civil Government servant in receipt of pay of less than Rs. 200 a month, who may be serving in a civil capacity with a military force, may be granted by the competent authority a wound or injury pension or gratuity, and the family of such a Government servant, if he is killed on such service or dies of an illness or injury due to such service, may be granted a family pension, as given below :-

(ii) Family Pension (For the purpose of awarding a family pension under this rule of the term ''family'' includes only wife, legitimate child, father and mother, dependent upon the deceased for support.)

(b) Conditions of grant

The pension is allotted for the support of the family-

(i) to the eldest surving son;

(ii) failing a son, to the eldest widow;

(iii) failing both sons and widows, to the eldest surviving unmarried daughter;

(iv) these failing, to the father;

(v) failing (i) to (iv), to the mother.

In awarding a family person under this rule, a competent authority may at its discretion make such modification in the node of allotment or conditions of tenure set forth in clauses 1 to 8 as it may consider desirable with a view to adapting these to the legal or customary conditions applicable in the case of the family'' to be benefited, or to providing against the improper application of the pension or its premature cessation. It may also award the pension to a dependent who does not strictly fall with the definition of ''family''.

8.35(1) A family pension wilt take effect from the day following the death of the Government servant or from such other date as the competent authority may decide.

(2) A family pension will ordinarily be tenable-

(i) in the case of widow or mother until death or remarriage whichever occurs earlier;

(ii) in the case of a minor son, or minor brother, until he attains the age of 18;

(iii) in the case of an unmarried daughter or minor sister, until marriage or until she attains the age of 21, whichever occurs earlier;

(iv) in the case of a father, for life ;

x x x x x x 8 38 The following conditions shall regulate the grant of pensions to the dependents of private individuals who are killed while assisting State authorities in their task of maintaining law and order :-

x x x x x x 5 (1) If the deceased has left neither a widow nor a child, an award may be made to his father and his mother, individually or jointly, and in the absence of the father and mother, to the minor brothers and sisters individually or collectively, if they were largely dependent on the deceased for support and are in pecuniary need :

x x x x x x 6. (1) A family pension will take effect from the date following the death of the person concerned or from such date as the Finance Department may decide.

(2) A family pension will ordinarily be tenable-

(i) in the case of a widow or mother, until death or remarriage whichever occurs earlier;

(ii) in the case of a minor son or minor brother, until he attains the age of 18;

(iii) in the case of an unmarried daughter or minor sister, until marriage or until she attains the age of 21, whichever occurs earlier;

(iv) in the case of a father, for life.

In 1964, another Family Pension Scheme was introduced, obviously by replacing the earlier Family Pension Scheme of 1951. Necessary modifications were made in the Punjab Civil Services Rules, Volume II, some of which are reproduced hereunder from its Third Edition of the Punjab Government publication:-

"6.16 B (1) For the purpose of this rule :-

(a) "family" shall include the following relatives of the Government employee :-

(i) wife or wives including judicially separated wife or wives, in the case of male Government employee;

(ii) husband including judicially separated husband in the case of female Government employee;

(iiii)sons; | (including step children and (iv) unmarried and widowed | adopted children), daughters (v) brothers below the age of 18 years and unmarried and widowed sisters, including step brothers and sisters;

(vi) father; | including adopted parents in case indivi- |duals whose personal law permits (vii) mother, | adoption. (viii) married daughter and;

(ix) children of a predeceased son;

(b) ''persons'' for the purpose of this rule shall include any company or association or body of individuals, whether incorporated or not.

x x x x x x

FAMILY PENSION SCHEME

6.17 The provision of this rule shall apply:

x x x x x x (3) ''Family'' for purposes of this Scheme will include the following-relations of the Government employee :-

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

(b) a judicially separated wife or husband, such separation not being granted on the ground of adultery, provided the marriage took place before the retirement of the Government employee and the person surving 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.

Note 1.-Marriage after retirement will not be recognised for purposes of this Scheme.

x x x x x x CHAPTER VIII-Wound and other Extraordinary Pensions:

8.34 (I) If the deceased Government employee has left neither a widow nor a child, an award may be made to his father and his mother individually or jointly and in the absence of the father and the mother'', to minor brothers and sisters, individually or collectively if they were largely dependent on the Government employee for support and are in pecuniary need;

8.35 (1) A family pension will take effect from the day following the death of the Government employee or from such other date as the competent authority may decide;

(2) A family pension will ordinarily be tenable -

(a) (i) in the case of widow or mother until death or re- marriage whichever occurs earlier ;

(ii) in the case of a minor son, or minor brother, until he attains the age of 18;

(iii) in the case of an unmarried daughter or minor sister, until marriage or until she attains the age of 21, whichever occurs earlier;

(iv) in the case of a father, for life.

x x x x x x Grant of Pension to Dependents of Private Individuals :

8.38 The following conditions shall regulate the grant of pensions to the dependents of private individuals who are killed . while assisting State authorities in their task of maintaining law and order:-

x x x x x x (5)(1) If the deceased has left neither a widow nor a child, an award may be made to his father and his mother, individually or jointly, and in the absence of the father and the mother, to the minor brothers and sisters individually or collectively, if they were largely dependent on the deceased for support and in pecuniary need; X X X

(6) (2) A family pension will ordinarily be tenable-

(i) in the case of a widow or mother until death or remarriage whichever occurs earlier;

(ii) in the case of a minor or minor brother, until he attains the age of 18;

(iii) in the case of an unmarried daughter or minor sister, until marriage or until she attains the age of 21 whichever occurs earlier;

(iv) in the case of a father, for life."

From a bare look at the aforesaid statutory provisions under the old as well a new Rules, it would be evident that all through the intention of the State has been to look after and provide for the livelihood of the parents of the deceased Government servant, if such Government servant was not married and the parents had been depending for support and were in need of pecuniary help. This was precisely the object behind the grant of Family Pension. AS has been noticed by their Lordships of the Supreme Court in Poonamal and Others Vs. Union of India and Others, , "Family Pension came to be conceptualised in the year 1950. When a Government servant dies in harness or soon after retirement, in the traditional Indian Family on the death of the only earning member, the widow or minor children were not only rendered orphans but faced more often destitution and starvation". It was further noticed- ,

"It is not necessary to examine the concept of pension. As already held by this Court in numerous judgments that pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the Government but is governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right. Deokinandan Prasad Vs. The State of Bihar and Others, , State of Punjab and Another Vs. Iqbal Singh, ) and D.S. Nakara and Others Vs. Union of India (UOI), ). Where the Governmet servant rendered service, to compensate which a family pension scheme it devised, the widow and the dependent minors would equally be entitled to family pension as a matter of right. In fact we look upon pension not merely as a statutory right but as the fulfilment of a constitutional promise inasmuch as it partakes the character of public assistance in cases of unemployment, old-age, disablement or similar other cases of undeserved want. Relevant rules merely make effective the constitutional mandate. That is how pension has been looked upon in D. S. Nakara''s judgment."

That being the nature and object of the Family Pension, for promoting and furthering the cause, their Lordships of the Supreme court in a recent case reported as Smt. Bhagwanti Vs. Union of India (UOI), examined the legality and propriety of the definition of ''family'' in Rule '' 54 (14)(b) of the Central Civil Services (Pension) Rules. 1972 The question before the Supreme Court was as to whether the children born after retirement and the spouse of the retired Government servant who married after his retirement, could be legally excluded from the list of relatives or dependents enumerated in the definition of "family". While striking down the aforesaid exclusions, the Supreme Court held as under:-

"9. Pension is payable, as pointed out in several judgments of this Court, on the consideration of past service rendered by the government servant. Payability of the family pension is basically on the selfsame consideration. Since pension is linked with past service and the avowed purpose of the Pension Rules is to provide sustenance in old age, distinction between marriage during service and marriage after retirement appears to be indeed arbitrary.

x x x x x x The considerations upon which pension proper is admissible or the benefit of the family pension has been extended do not justify the distinction envisaged in the definition of ''family'' by keeping the post-retiral spouse out of it.

x x x x x x 12. In clause (ii) of the definition son or daughter born after retirement even out of wedlock (sic entered) prior to retirement have been excluded from the definition. No plausible explanation has been placed for our consideration for this exclusion. The purpose for which family pension is provided, as indicated in Poonamal and Others Vs. Union of India and Others, , is frustrated if children born after retirement are excluded from the benefit of the family pension. Prospect of children being born at such advanced age (keeping the age of normal superannuation in view) is minimal but for the few that may be born after the retirement, family pension would be most necessary as in the absence thereof in the event of death of the government servant such minor children would go without support. x x x

Considered from any angle, we are of the view that the two limitations incorporated in the definition of ''family'' suffer from the vice of arbitrariness and discrimination and cannot be supported by nexus or reasonable classification, The words provided the marriage took place before retirement of the government servant in clause (i) and ''but shall not include son or daughter born after retirement'' in clause (ii) are thus ultra vires Article 14 of the Constitution and cannot be sustained "

Taking light from the law laid down by their Lordships of the Supreme Court and on the parity of reasoning, there is no justification for excluding "father" and "mother" of an unmarried deceased Government servant from the definition of "family" for the purposes of grant of Family Pension while introducing the Family Pension Scheme of 1964, especially when both ''father" and "mother''" stood included in the definition of "family" under the Family Pension Scheme of 1951.

Consequently, the writ petition is allowed and by issuing a writ of mandamus, the respondents are directed to grant to the petitioners Family Pension at the rates admissible under the Family Pension Scheme, 1964, from the date of death of Daljit Singh son of the petitioners, as if "father and mother" stood included in the definition of "family" under the Family Pension Scheme of 1964. Since the petitioners are already about 70 years of age and their son Daljit Singh died five years back, the respondents are directed to calculate the amount admissible to the petitioners and release the same to them forthwith. There shall be no order as to costs.