Sarswati Devi vs State of J&K & Ors.

The petitioner through this writ petition under Article 226 of the Constitution of India read with section 103 of the Constitution of Jammu &

Kashmir, is seeking a direction to the respondents to sanction family pension and also allow oilier allied benefits in her favour on account of death

of her husband, who had died in harness on 7th of December, 1958 leaving behind the petitioner without any source of income to sustain herself.

The case of the petitioner is that the State Government has framed Jammu & Kashmir Family PensioncumGratuity Rules, 1964, (hereinafter called

the Rules). The further case of the petitioner is that at the time of coming into force of these rules, the case of the petitioner for grant of pension was

already pending with the respondents but no action has been taken on the application of the petitioner. The petitioner moved another application in

the shape of Form B, which was sent to the Deputy Commissioner, Jammu, who in turn forwarded the same to Tehsildar, Akhnoor, vide dispatch

No. ADMN/922 dated 31.12.1991 but no action has been taken on the said application also.

On notice, the respondents filed objections/counter in which it was pleaded that Jammu & Kashmir Family Pension & Gratuity Rules, 1964,

apply to all such claims arising on or after that date and to the claims which were pending with the General Department on 01.08.1904. It was

further pleaded that the petitioner has made a vague statement regarding the pendency of the case for grant of pension. There was no such case

pending in the office of respondent No.3. It was also denied that respondent No.3 has recommended the case for grant of pension to the

petitioner, as such, no pensionary benefit can be granted to the petitioner.

I have heard the learned counsel for the parties and perused the record. The Jammu & Kashmir Family PensioncumGratuity Rules have come

into force on 01.08.1964 and these Rules apply to all such claims arising on or after that date and to the claims which were pending with the

General Department. After coming into force of these Rules the State Government has issued SRO 761 of 1986, whereby, these Rules were

recasted. The relevant portion of the said SRO is reads as under:

Clause V of Section 1 I (b).

Family Pension in case of widows of government servants who have died in harness before 1.4.1965 shall continue to be processed/decided by

the administrative Department concerned in order to establish their entitlement and rightful claim and to enable/he Accountant General to authorize

family pension in their favour under these Rules. Application for grant of family pension in such cases shall be made in Form 'B' annexed hereto.

Perusal of the above said Rules shows that the Family Pension cases of widows of Government servants, who had died in harness before

1.4.1965 shall continue to be processed/decided by the Administrative Department concerned in order to establish their entitlement and rightful

claim. The cut of date as fixed under the Rules is not to be taken into consideration as per SRO. The SRO further makes it clear that Family

Pension case of widows of government servants who have died before 1.4.1965 are also to be processed and decided even though they have

applied at any time. In this case, the husband of the petitioner had served for 10 years before his death in the year 1958. So under the Rules, she is

entitled to Family pension and Gratuity.

In D.S. Nakara and others v. Union of India, (1983) I Supreme Court Cases 305, the Apex Court has held as under:

Viewed in the light of the present day notions pension is a term applied to periodic money 'payments in a person who retires at a certain age

considered age of disability: payments usually continue for the rest of the natural life of the recipient. The reasons underlying the grant of pension

vary from country to country and from scheme to scheme. But broadly stated they are (i) as compensation to former members of the Armed forces

or their dependents for old age, disability, or death (usually from service causes), (ii) as old age retirement or disability benefits for civilian

employees, and (Hi) as social security payments for the aged disabled, or deceased citizens made in accordance with the rules governing social

service programmes 0f the country. Pensions under the first head are of great antiquity Under the second head they have been in force in one form

or another in some countries for over a century hut those coming under the thin head are relatively of recent origin, though they are of the greates,

magnitude. There are other views about pensions such as charity paternalism, deferred pay rewards for service rendered or as a mean of

promoting general welfare (see Encyclopedia Britannica, Vol. 17 p. 575). But these Views have become otiose.

From the discussion three things emerge: (i) that pension L neither a bounty nor a matter of grace depending upon the sweet will of the

employer and that it creates a vested right subject, to 1972 Rule, which are statutory in character because they are enacted in exercise of powers

conferred by the proviso to Article 309 and clause (5) o Article 148 of the Constitution: (ii) that the pension is not an exgratia payment but it is a

payment for the past service rendered; and (Hi) i is a social welfare measure rendering socioeconomic justice to those who in the heyday of their

life ceaselessly toiled for the employer o, an assurance that in their old age they would not be left in lurch, j must also be noticed that the quantum

of pension is a certain percent age correlated to the average emoluments drawn during last there years of service reduced to 10 months under

liberalized, pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement, that is,

since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.

The rightful claim of pension even though there is a delay in filing the writ petition, cannot be declined on the ground of delay, as it is a recurring

cause. A Division Bench of this Court in, the case of Union of India v. Rattan Lal, 1999(2) SCT39, considered the question of delay in detail and

held that delay in approaching the court is irrelevant.

In Loka Ram v. Plaryana State Electricity Board arid another 1995(5) SLR 566, the Punjab and Haryana High Court, while considering the

question of delay and laches in the matter of pension, held as under:

Firstly, the plea of delay may be considered. Admittedly, the petitioner had retired from service in the year 1983 and had made a claim for

pension. It was rejected vide letter dated May 19, 1988 on the ground that the total service rendered by him was 9 years, 3 months and 22 days,

and that the benefit of the service rendered in work charge capacity was not admissible. He represented again. Having failed to get a. reply the

petitioner approached this Court through the present writ petition. In this situation, it cannot be said that the petitioner has become disentitled to the

grant of pension. This is especially so in view of the fact that it is a continuing cause of action and even if the claim is inn made immediately or within

a reasonable, rime, it cannot be defeated by the mere lapse of time. No thirdparty's rights have come into existence. Delay does not prejudice the

interest of the. employer. If at all, it has kept THE money, which was required to be paid to the employee. The mere fact, that I lie poor employee

has not claimed she money for a long time, docs not mean that his right has since been extinguished. Consequently, the plea of delay cannot be

accepted.

A Division Bench of Delhi High Court in the case of Bachan Kour v. Union of India (W.P. 621/89), decided on 13th April 1985 has taken a

view that the writ petition claiming pension, if the claim is otherwise just and legal may be entertained and allowed limiting the same to a period of

three years before the date of filing of the petition.

Therefore, in view of the settled proposition of law, this petition cannot be rejected merely on the ground that it is highly belated. The claim for

grant of pension is thus to be entertained and adjudicated upon on merit and if the claim is found to be just and legal, then the same has to be

restricted to 36 months from the date of filing of petition.

For the reasons discussed above, this petition is allowed. The petitioner is held entitled to family pension but the claim of the petitioner is

restricted to a period of 36 months prior to the date of filing of writ petition. The respondents are, accordingly, directed to release family pension in

favour of the petitioner after calculating the same within a period of two months from the date a copy of this order is made available to them by the

petitioner or by her counsel. In case, the family pension is not released within the stipulated period then the petitioner shall be entitled to interest @

6% per annum and the interest would be payable by the person on whose account, the delay occurs. Disposed of, accordingly.