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Smt. Amina vs State Of Raj. And 4 Ors. on 30/1/1995
JUDGMENT
Arun Madan, J.
1. This is a writ petition filed under Article 226 of the Constitution of India in the matter of violation of Arts. 14,16 and 21 of the Constitution of India and in the matter of payment of family pension to the petitioner, a widow of a Late retired class IV employee, resident of Tehsil Jetaran, District Pali, Rajasthan, who has been subjected to most hostile treatment and denial of family pension opted by her on the death of her husband w.e.f. September, 1961.
2. This case has a chequered histry if a poor helpless widow who has not been shown any mercy by the instrumentality of the State Government (Pension Department) which has deprived her of the sanctioned family pension for the past about 30 years, in gross violation of right to life and liberty guaranteed- under Article 21 of the Constitution of India which includes the right to livelihood which cannot be deprived by instrumentality of the State as has happened in this case.
3. The facts giving rise to the filing of this writ petition briefly stated are that Late Husband of the petitioner was a class IV employee as Camel Sawar in the office of respondent No. F, the Tehsildar, Jetaran District Pali who retired from service on 2.9.1958 and died on 18.9.1961 and was paid pension by his department till 18.9.1961, the date on which he expired.
4. Subsequent to the death of her husband, the petitioner being the widow applied for family pension which upon verification of the necessary documents as asked for by the Accountant General, Rajasthan vide his order No. 4790 of dated 29.9.1964, the petitioner was sanctioned family pension w.e.f. 19.9.1961. This family pension was sanctioned vide order Annexure 1 dated 28th October, 1964 and the family pension was payable at then prevailing rate of Rs. 13.20 per month only w.e.f. 19.9.61 to 11.9.1963 or till death or re-marriage whichever was earlier. Alongwith the said amount of pension T.I. at the rate of Rs. 8.00 per month was also sanctioned to be paid to the petitioner. The operative part of the aforesaid order reads as under:
The pension is debitable to Rajasthan Government under major head
65. Pension & other retirement benefits-Family Pension - Other Pension. Photo of Smt. Amina is sent herewith and the specimen signature and right hand thumb & finger impression may be obtained locally.
Inspite of the fact that the payment of the family pension had been sanctioned to the petitioner long back, she was never paid any such amount of pension causing her great pain, hardship and agony. Thereafter she made repeated representations to the concerned authorities followed by her personal visits with desperate requests to the respondents for making the payment of family pension as admissible to her but her efforts felt to the deaf ears of the respondents and as a result of which she was made to lead life of misery and starvation in gross negation of human rights. It is infaet a miracle that she has survived to see the light of the day inspite of de-humanising behaviour of the respondents. It has been contended in the writ petition that the petitioner being an illiterate lady could not keep up-to-date record of the representations made by her to the authorities from time to time and her last such representation was made by her on 14.10.1988 which has been filed alongwith this writ petition as Annexure 2.
5. It has been further contended in the writ petition that due to her persistent efforts, the petitioner was ultimately issued pension payment order (for short 'PPO') on 27.10.1989 and curiously enough this PPO states that the petitioner would be entitled to receive family pension w.e.f. 1.4.1988 on wards. No mention whatsoever has been made in the said order (Annexure 3) dated 27.10.89 with regard to the earlier period for payment of family pension w.e.f. 19.9.1961 to 11.9.1968 which is specifically mentioned in the Accountant General's letter, dated 26.10.64 (Annexure 1) and the said period has altogether been ignored by the respondents. Aggrieved from the above the petitioner made series of representations to various concerned authorities including the respondents and the Accountant General, Rajasthan, Jaipur. It has been further contended in the writ petition that thereupon the Accountant General sent a communication to the Director, Pension Department (respondent No. 2) vide his letter, dated 28.11.88 (Annexure 4) drawing his attention towards the earlier sanction for payment of family pension and temporary increase, according to the petitioner, and directed the Director, Pension Department to expeditiously deal with the matter of the petitioner concerning payment of family pension.
6. Notwithstanding the above, the respondents did not bother to pay any heed to the grievances of the petitioner which were highlighted by the Accountant General himself and ultimately the petitioner was left with no other remedy except to send a notice demand for justice through her counsel which she did on 12.4.1990 (Annexure 5) copy of which is enclosed with the writ petition as Annexure 5. In the said Notice a request was made to the respondents to make payment of family pension to the petitioner w.e.f. 19.9.1961 to 31.8.1988 as it was admissible to her with subsequent revision in family pension including entire amount of arrears and also interest @ 18% per annum within a period of two months. Inspite of the above, all persistent efforts made by the petitioner proved abortive.
7. It has been further contended in the writ petition that in response to the aforesaid notice sent through her counsel, the Treasury Officer, Pali vide his letter, dated 18.4.1990 intimated the petitioner's counsel that PPO for payment of family pension has since been issued to the petitioner vide order, date 27.10.1989. With regard to payment of family pension and temporary increase from 19.9.1961 on wards is concerned, it was stated that only the Director, Pension Department Rajasthan, Jaipur is competent to decide this issue. It was further stated that the Treasury Officer, Pali was responsible for making payment only as. per the sanction authorisation issued by the competent authority. Copy of the said letter, dated 18.4.1990 is Annexure 6 to this writ petition.
8. It is in these circumstances that the petitioner being deprived of her legitimate and legal rights of getting famify pension and other monthly dues as admissible to her under the law subsequent to the date of death of her husband for her subsistence, was compelled to move this court by way of the present writ petition to avail the remedy in accordance with law.
9. In reply to the show cause notice sent by this court, the respondents have filed reply wherein preliminary objection was raised regarding maintainability of this writ petition. Besides, on merits the respondents have contended in the reply that vide Annexure 1 family pension was sanctioned to the petitioner for a period from 19.9.61 to 11.9.1968. It has been further contended by the respondents that a sum of Rs. 510.15 on account of family pension was paid to the petitioner for the aforesaid period on 15.1.1965 in partial acknowledgement of their liability vide Annexure Rule 1 to the reply.
10. In para 5 of reply the respondents have contented that vide order, dated 18.7.1988 New Family Pension Rules, 1964 have been extended to the widows of Government employees who retired or died before 1.8.1964 w.e.f. 1.4.1988. The respondents have further contended that the petitioner is not entitled to payment of any pension for the period 12.9.63 to 31.3.1988 as per rules.
11. Learned Counsel for the petitioner has strongly contended that the case of the petitioner for entitlement of family pension is fully covered by the Rajasthan Civil Services (Commutation of Pension) Rules, 1981 as amended. It has been further contended by the learned Counsel for the petitioner that document Annexure 1 clearly establishes the factum of acknowledgment of the liability of the respondents for payment of famify pension to the petitioner, since the Accountant General Rajasthan, Jaipur had directed the Treasury Officer, Pali to grant family pension to the petitioner from 19.9.1961 to 11.9.1963 which was payable till death or re-marriage whichever being earlier. With regard to Annexure 3 dated 27.10.89 which is PPO prepared by the pension department sanctioning payment of family pension to the petitioner w.e.f. 1.4.1988 on wards, it has been contended that it is contrary to the Accountant General's letter, dated 23.10.1984 wherein there is no direction to the Treasury Officer to pay pension to the petitioner w.e.f. 1.4.1988 onwards in as much as it is clearly mentioned there in that the family pension may be arranged to be paid to the widow of the deceased w.e.f. 19.9.1961 to 11.9.1963 or till death or re-marriage whichever is earlier. Hence it was pointed out by the learned Counsel for the petitioner that the Pension Department of the State Government did not examine the Accountant General's letter in its true persepective, since there was no bar in the said earlier order to pay family pension to the petitioner w.e.f. earlier dates as referred to therein. It was therefore, contended by the learned Counsel for the petitioner that the petitioner was legitimately and lawfully entitled to be paid family pension for the intervening period w.e.f. 1.9.1963 to 31.3.1988 and there being no dispute with regard to the payment of family pension after March, 1988.
12. The above contentions made by the learned Counsel for the petitioner have been controverted by Shri O.P. Sharma, learned Counsel for the respondents on the ground that the case of the petitioner is covered by Rule 268A Chapter XXIII-A of the Rules which provides that all Government servants on pensionable establishment, whether temporary or permanent, who are in service on the 1st day of March, 1964 or who enter service on or after that date shall be covered by this Chapter but shall not apply to persons who retired before 1st March, 1964. Hence the petitioner is not entitled to payment of family pension for the intervening period from 1.9.1963 to 31.3.1988 not withstanding the petitioner having received family pension for the earlier period from 1961 to 1963.
13. I have heard learned Counsel for the parties and also examined the relevant documents on the record and have also perused the Family Pension Rules, as referred to above.
14. Rule 261 of the Rules which deals with conditions for the grant of family pension provides that a family pension, not exceeding the amount specified in Rules 262 may be granted to the family of an officer who dies, whether while still in service or after retirement after completion of not less than 20 years qualifying service, or a period of ten years. It will be relevant to mention the decision taken by the State Government vide F.D. Memo No. F.l (48) FD/(ER)/64, dated 1.4.1965 whereby the State Government of Rajasthan while considering the question of liberalising the existing provisions in regard to family pension drawn by widows/minor children of the employees under the Family Pension Rules contained in Chapter XXIII of the Service Rules as referred to above, took a decision that in respect of widows actually in receipt of family pension on 23.2.1964 under the aforesaid Rules the period of eligibility of such family pension should be extended up to: (i) the death or remarriage whichever is earlier in the case of widows; (ii) the benefit will also be extended to wives of the Government servants who retired before 1.3.1964 and on whose death subsequent to this date the widows became entitled to family pension under the aforesaid rules.
14A. It is thus clear from the above that since the petitioner was_ already drawing family pension as on 28.2.1964 under the aforesaid rules, her husband having retired from service on 12.9.1958 and having died on 13.9.1961, the family pension was duly sanctioned to her by the Accountant General's office at Jaipur vide Annexure 1, dated 28.10.1984. This fact is further fortified from the Accountant General's order, dated 28.11.1988 (Annexure 4). It Is surprising to note that notwithstanding serveral representations made thereafter by the petitioner for payment of family pension for the outstanding period together with the outstanding arrears of family pension, the petitioner has been denied the same by the authorities concerned. None of the representation of the petitioner was replied till she moved the court by way of present writ petition.
15. It is pertinent to mention that from March, 1988 onwards the petitioner has been receiveing family pension @ Rs. 300/- per month at the revised rates as per rules but the dispute pertains only for the period from 11.9.63 to 31.3.1988, as referred to above. It will be pertinent to refer to the Judgment of the Apex Court In the matter of Smt. Poonornol etc. v. Union of India etc. 1985(2) SLR 537 (SC) (paras 8 & 9) wherein a statement was made by the counsel for Union of India to the effect "Government have examined the matter. As family pension scheme was made non-contributory from 22.9.1977. Government would agree to extend the benefit of Family Pension Scheme, 1964 to all living widows. Payment to such widows may be made from 22.9.77 of the date of the death of the pensioner whichever is later till the date of the death of the widow. The benefits will also be available in cases where the death of the petitioner occus hereafter in this case it was clarified by the Apex Court on an application moved by the Common Cause Society that the Government had already agreed to grant of arrears of family pension w.e.f. 22.9.1977. Hence the case of the petitioner in the present writ petition is fully covered by the aforesaid Judgment of the Apex Court. Following the above Judgment of the Apex Court, Punjab and Haryana High Court in the matter of Smt. Inder Kaur v. Union of India & Others 1991(4) SLR 109, allowed the writ petition with a direction to the respondents to pay requisite amount of pension w.e.f. 22.9.77 alongwith interest @12% per annum.
16. In the matter of Vidya Wati v. State of Haryana & Others 1988 (3) SLR 243 Punjab and Haryana High Court while dealing with an identical case where the husband of the petitioner had retired on 4.10.1962 and subsequently died on 24.4.1967 and the payment of pension, gratuity was not settled during his life time, the wife on petition to the High Court for payment of the outstanding arrears of family pension and gratuity etc. Due to her Late husband, the High Court directed the State Government to determine the rate of pension/gratuity due to the petitioner's Late husband during his life time and family pension payable to the wife with interest @ 12% per annum on the amount due from the date of entitlement till payment. It was observed by the High Court that it was most unfortunate that the pension case was delayed for such a long time even when the person had died. Consequently the petition was allowed with costs.
17. In Black's Law Dictionary, Fifth Edition page 1021 'Pension' is defined as 'retirement benefit paid regularly (normally, monthly), with the amount of such based generally on length of employment and amount of wages or salary of pensioner. Deferred compensation for services rendered'.
18. In Words and Phrases, Permanent Edition 31A Pass to Peoples, 'pension' is defined as under:
A pension is a bounty for past services rendered to the public. It is mainly designed to assist the pensioner is providing for his daily wants.
A pension in its true sense is a prospective award or deferred compensation for service not fully recompensed when rendered.
A pension, as provided for by a contract of employment, is compensation for services rendered, the payment of which is deferred until after completion of rendition of services to induce long-continued and faithful service.
Pension is stated allowance granted by government to individual or his representative for valuable service or for loss sustained in public service.
19. In the matter of D.S. Nokora & Others v. Union of India reported in 1983(47) FLR 42 the Constitution Bench of the Apex Court while dealing with liberalised pension scheme to those who retired on or after 31.3.1979 while denied to those retiring earlier than the said date, held:
(i) Pension is 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 rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex-gratis payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. This division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory. Further the classification is wholly arbitrary because we do not find a single acceptable or persuasive reason for this division. This arbitrary action violated the guarantee of Article 14.
20. After hearing learned Counsel for the parties and examining their rival claims and contentions and on perusal of the relevant documents as well as the legal propositions laid down by the Apex Court as well as various other High Courts as referred to above, I am of the considered opinion that the petitioner is entitled to succeed.
21. The writ petition is consequently allowed with cost which 1 quantify at Rs. 2500/-. The respondents are directed to pay to the petitioner the family pension for the period 11.9.63 to 31.3.1988 with interest @ 12% per annum till realisation of due amount. The respondents are further directed to make payment of all consequential arrears alongwith interest @ 12% per annum within a period of three months from today. It is further directed that the total amount found due to the petitioner with interest shall be paid by Bank Draft at the residential address of the petitioner as indicated in the writ petition.
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