Pawan Samyal vs State of J&K and Ors.

The petitioner's husband, after rendering 20 years of service as a Professor of chemistry in G.G.M. Science College, Jammu, died on 1791985

when he was only 45 years of age. He was survived by his wife and three minor female children. In her claim for the grant of family pension,

respondent No. 3 issued an intimation letter dated 1111985 addressed to the Treasury Officer, Addl. Treasury, Jammu, intimating her that her

family pension at the rate of Rs. 494.40 and D.A.@ 581 per month w.e. from 1891985. had been allowed with a further instruction to her to

appear before the Treasury Officer to receive the pay men r. Calculating the pension under rule 20 (bb) of the Family Pensioncumgratuity Rules,

the family pension of the petitioner is likely to be reduced w.e. from 17.9.1992 when seven year's period is to lapse. It is submitted that SRO310

of 1986 dated 8.5.1986 provided that the family pension of the dependants of the government servants who die in harness, would be equal to the

amount of last pay drawn by the deceased official for the first 7 years and thereafter the family pension was to be paid at the rate of 50% of the

pay last drawn or twice the family pension admissible as per rule 20 (ii) (aaa) of the Family Pensioncumgratuity Rules, which ever was less, for the

next 7 years or till the deceased would have attained the age of 62 years whichever was earlier and thereafter the family pension would be made

payable at the ordinary rates laid down in rule 20 (ii) (aaa) of the aforesaid rules. That has been prayed that the petitioner is entitled to the grant of

benefit of SRO310 of 1986 by quashing the words ""These rules shall be deemed to have come into effect from 1.1.1986"" incorporated in the said

SRO, It is submitted that denial to the petitioner of the grant of benefit was violative of Article 14 of the Constitution of India.

In the reply filed on behalf of the respondents it has been submitted that the petitioner is not entitled to the grant of the benefit of SRO310 and that

her petition being misconceived is liable to be dismissed. It is submitted that as no fundamental or legal right of the petitioner has been violated she

is not entitled to maintain the present petition. It is contended that as per SRO 310 of 1986, family pension at the rate of last pay drawn by the

deceased employee who dies while in service is admissible in service or upto the superannuation of the deceased employee whichever is earlier but

it is contended that the petitioner is not entitled to it. It is further submitted that the dectrine of classification was evolved to sustain a State action

designed to help segment of the society in need of succour. The cutoff date i. e. 1.1.1986 is claimed to be not arbitrary or devoid of rational

consideration. In fixing the cutoff date the authorities are stated to have not acted mala fide with a view to deprive those who retired before

1.1.1986 of the benefit it was not practical to extend the benefits to such employees as UG scheme became operative i.e. from 1.1.1896.

I have heard learned counsel for the parties and perused the record. On 11.3.1993, learned counsel for the parties agreed for disposal of the case

at the admission stage. Vide a detailed order dated 15.7. 1992 a direction was issued to respondents 1 to 3 to raise pension of the petitioner in

terms of para 2 of SRO310 of 1986 forthwith upon the petitioner's furnishing an undertaking that in case the petitioner fails in her petition, she will

reimburse the amount overdrawn by her. Learned counsel for the respondents have not seriously contested regarding the maintainability of the writ

petition. Otherwise also, it cannot be said that no fundamental or statutory right is alleged to have been violated inasmuch as the petitioner has

prefered her claim upon the alleged violation of Art.14 of the Constitution of India. The pension cannot be termed to be a mere concession and

admittedly when the petitioner has been held entitled to the grant of pension, it cannot be said that she has no right to claim enhanced pension on

the basis of SRO310 of 1986.

In State vs. Avtar Krishen Mengi and ors. (1985 JK.LR 605) a Division Bench of this court held that all the pensioners form one class and are

entitled to the benefits under the liberalised scheme. No discrimination can be made amongst the pensioners on the ground of their date of

retirement. It was held that the pensioners irrespective of their date of retirement were entitled to the benefits provided by revised pension rates.

This Court was persuaded to return the finding on the basis of the judgement of the Supreme Court in case D. S. Nakara and others v. Union of

India (AIR 1983 SC 130). The Supreme Court in Union of India v. Deokinandan Aggarwal (AIR 1992 SC 96) followed the judgement delivered

in D. S. Nakara's case (supra) and held, ""On the same reasoning and logic we have to hold that amended Act No. 38 of 1986 could not restrict

the applicability of the amended provisions to only those who have retired on or after the commencement of the amending Act. The resultant

position would be that the provision of pension in part I of first schedule as amended by Act No. 38 of 1986 could not restrict the applicability of

the amended provisions to only those who have retired on or after the commencement of the amending Act. The resultant position would be that

the provision in part 1 of first schedule as amended by Act No. 38 of 1986 would be applicable to all judges irrespective of their dates of

retirement and they would be entitled to be paid pension at the rates provided therein with effect from November 1,1986"".

Learned counsel for the respondents have referred to a judgement of the Supreme Court reported in AIR 1992 SC 767 to urge that the benefit of

SRO 3lO cannot be given to the petitioner. In that case a so the Supreme Court approved the judgement delivered in D.S. NaKara's case (supra)

and held:

Whenever any rule or regulation having statutory flavour is made by an authority which is a State within the meaning of Art. 12, the choice is of the

cutoff date which has necessarily to be introduced to effectuate such benefits is open to scrutiny by the Court and must be supported on that

touchstone of Art. 14. If the choice of the data results in classification or division of member's of a homogeneous group it would be open to the

Court to insist that it be shown that the classification is based on an intelligible differential and on rational consideration which bears a nexus to the

purpose and object thereof. The differential treatment accorded to those who retired prior to the specified date and those who retired subsequent

thereto must be justified on the touchstone of Art. 14, for otherwise it would be offensive to the philosophy of equality enshrined in the

Constitution.

It was further held that the pension was not a charity, bounty or gratuitous payment but was held to have been earned for rendering a long service.

Their Lordships observed :

The concept of pension is now well known and has been clarified by Supreme Court time and again. It is not a charity or bounty nor is it

gratuitous payment solely dependant on the whim or sweet will of the employer. It is earned for rendering long service and is often described as

deferred portion of compensation for past service. It is in fact in the nature of a social security plan to provide for the December of Life of a

superannuated employee. Such social security plans are consistent with the socio economic requirements of the Constitution when the employer is

a State within the meaning of Art. 12 of the Constitution.

Reliance of the learned counsel for the respondents therefore, is misplaced. The facts of the case reported in AIR 1990 SC 2043 relied upon by

the learned counsel are distinguishable and do not support their case. In that case also the Apex Court approved the judgement delivered in D.S.

Nakara's case (supra), but, on, fact, distinguished it while rejecting the case of the petitioners therein.

SRO310 of 1986, provide:

In Schedule XV Family PensioncumGratuity Rules, the following shall be inserted as subclause (bbb) below rule 20: (bbb) Notwithstanding

anything contained in subclause (bb) above, where as Government servant dies while in service after having rendered not less than 7 years

continuous service, the rate of family pension admissible to the beneficiary of the deceased shall be equal to the pay last drawn by the deceased

officer before his death. Pension at the enhanced rates equal of the last pay shall be payable for a period of 7 yeas from the date following the date

of death of the Government servant of or for a period up to the date on which the deceased Government servant would have attained the age of

superannuation whichever is earlier After having drawn family pension at such enhanced rates, it will be allowed at the rate equtal to 50 per cent of

pay last drawn or twice the family pension admissible as per subrule (ii) (aaa) whichever is less and the amount as admissible shall be payable for a

period of 7 years from the date the payment of enhanced pension as per preceding para ceases of till the deceased would have attained the age of

62 years whichever is earlier, Thereafter the family pension wilt be payable at the ordinary rates laid down in subrule (ii) (aaa). Pending cases, if

any, shall be decided accordingly.

Vide SRO346 of 1987 it was: provided that ""These rules shall be deemed to have come into effect from 111986,

Learned counsel for the respondents have not been in a position to show the reasonableness for making discrimination depriving the benefits of

SRO 310 to those who had been granted pension prior to 111986. As the discrimination made is not based upon any reasonable criterion, some is

required to be quashed and the petitioner held entitled to the benefits of SRO310of 1986.

Under the circumstances the petition is allowed by issuing a direction to the respondents to give the benefit of SRO310 of 1986 to the petitioner

from the date said SROcame into force. The words ""These rules shall he deemed to have come into force from 111986"" as incorporated in the

said SRO vide SRO 346 of 1987 dt. 2461587 shall be deemed to have been quahsed so for as the case of the petitioner is concerned.

Parties are left to bear their own costs.