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1988 DIGILAW 472 (ALL)

Chandra Kala Agarwala v. Union of India

1988-04-27

ANSHUMAN SINGH, B.N.SAPRU

body1988
JUDGMENT Anshuman Singh, J. - By means of this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for issuance of a writ of mandamus to the respondent to pay the petitioner family pension that she is entitled to from the date of death of her husband i.e. on June 13 1973 and continued to pay the same to the petitioner during her life time every month. 2. The facts giving rise to the instant writ petition under Article 226 of Constitution briefly stated lies in narrow compass. 3. The petitioners' husband late Mr. Justice C.B. Agarwala was appointed as a Judge of the Allahabad High Court on May 14, 1948. After serving as a Judge for about 9 years be retired on March 18, 1957 and he died on June 13 1973. The petitioner is the widow of the deceased late Mr. Justice C.B. Agarwala. The petitioner was never paid family pension by the respondent which was payable, according to her, after the death of her husband. Since the respondents were not paying family pension, she approached to this court by way of filing the present writ petition in which a prayer was made that the respondent may be directed to pay the petitioner's family pension from June 14, 1973 i.e. the next date succeeding to the death of her husband and should further be directed to pay the same during her life time every month. This petition was presented on April 25, 1985. On the said date learned Senior Standing Counsel, Government of India was granted a months time for filing a counter affidavit and the petitioner was required to file rejoinder affidavit within a period of one month thereafter. It was also agreed by the counsel for the parties that after the affidavits were exchanged, the writ petition should be finally disposed of at the stage of admission itself. The case was listed before a Division Bench of this court on August, 14 1985. Since, no counter affidavit was filed on behalf of the respondent, the Bench who was seized of the matter was pleased to issue an interim mandamus to the respondents to pay family pension to the petitioner within one month or to show cause and the petition was ordered to be listed for orders after one month. A statement has been made before us by Mr. A statement has been made before us by Mr. B. Dayal, learned counsel for the petitioner that after issuance of the interim mandamus the respondent started paying family pension to the petitioner. Subsequently, it appears that a letter dated January 31, 1986 and February 4, 1986 was sent to the petitioner by Mr. M. Chatterjee, Senior Deputy Accountant General, II (Account) U.P. Allahabad informing her that the family pension was admissible to her w.e.f. September 1977. In the same letter, it was also mentioned that in case any family pension for the period October 21, 1972 was drawn by the petitioner, the same may be refunded. It has been stated before us that since the pension which was paid to the petitioner in pursuance of the interim mandamus issued by this court was not refunded by her the respondent would stop further payment to her. Thereupon, the petitioner filed a supplementary affidavit annexing therein the letter dated January 31, 1946 and February 4, 1986 (annexure S.A. 1) and prayed for quashing of the said letter. 4. Mr. D.P. Singh, learned Additional Standing Counsel for the Union of India has prayed that he should be granted further time to file a counter affidavit to the main writ petition as well as the supplementary affidavit. In view of the fact that the Senior standing counsel was granted time on April 25, 1982 more than three years have elapsed and the respondent has not taken care to file the counter affidavit till to day, we, therefore, are not inclined to accede to the request made on behalf of the Union of India for grant of further time and we proposed to dispose of the writ petition in the absence of the counter affidavit filed on behalf of the respondent. 5. We have heard Sri B. Dayal, learned counsel appearing for the petitioner and Sri D.P. Singh, learned Additional Standing counsel appearing for the Union of India. 6. The pivotal question to be determined in the instant petition is whether the petitioner being widow of a High Court Judge who died on June, 13, 1973 was entitled to any family pension or not. 7. Learned counsel for the petitioner has invited our attention to rule 2 of the High Court Judges Rules 1956 which reads as under: "Rule 2. 7. Learned counsel for the petitioner has invited our attention to rule 2 of the High Court Judges Rules 1956 which reads as under: "Rule 2. The conditions of service of a Judge of a High Court for which no express provision has been made in the High Court Judges (Conditions of Service) Act, 1954, shall be, and shall from the commencement of the Constitution be deemed to have been determined-by the rules for the time being applicable to a Member of the Indian Administrative service holding the rank of secretary to the Government of the State in which the principal seat of the High Court is situated." 8. On the strength of the said Rule, he contended that since no specific provision has been made in the High Court Judges (Conditions of Service) Act, 1954 the petitioner was entitled to family pension which was being paid to the widows of the members of the Indian Administrative Service holding the rank of Secretary to the Government of the State. A careful perusal of the said rule also provides that the said rule shall be deemed to have been applicable from the commencement of the Constitution of India i.e. 1951 At this stage we would like to mention that Liberalised Pension Rules 1953 were framed and thereafter the Central Government enacted a new scheme of family pension to the Central Government Employees known as "Family Pension Scheme of the Central Government Employees, 1964". We have perused the rules of 1950 as well as the liberalised rides and there is no manner of doubt that the widows of officers belonging to the Indian Administrative Service holding to the rank of Secretary of the Government of the State were entitled to the family pension. 9. On the contrary Mr. D.P. Singh, Additional Standing Counsel for the Union of India has contended that the petitioner is not entitled to family Pension in view of newly inserted Section 17A(1)(2) by the High Court Judges (Conditions of Service) Amendment Act, 1976 which has been made effective from October 1, 1974. 9. On the contrary Mr. D.P. Singh, Additional Standing Counsel for the Union of India has contended that the petitioner is not entitled to family Pension in view of newly inserted Section 17A(1)(2) by the High Court Judges (Conditions of Service) Amendment Act, 1976 which has been made effective from October 1, 1974. The newly added Section 17-A(1)(2) reads as under: "17-A(1)(2) - The rules, Notifications and orders for the time being in force with respect to the grant of family pension in relation to an officer of the Central Civil Service Class I, shall apply to the grant of family pension in relation to a Judge who being in service on or after first day of October, 1974, dies whether before or after retirement, in circumstances to which Section 17 does not apply." 10. We have given our thoughtful considerations to the rival contentions raised by the counsel for the parties and we are of the opinion that the widows of the Judges who died even prior to October, 1 1974 were entitled to receive family pension under rule 2 of the High Court Judges Rules, 1956 because the language used in Rule 2 is from the commencement of Constitution i.e. 1951. It appears that the Legislature while enacting the Amendment Act, 1976 felt that since there has been no specific provision for the payment of family pension to the widows of the High Court Judges, who were elevated from the Bar as Mr. Justice C.B. Agarwala, was specific section was inserted in the High Court Judges (Conditions of Service) Amendment Act, 1976 i.e. Section 17-A(1)(2). 11. Mr. D.P. Singh further contends that since the Amending Act by which Section 17-A(1)(2) was inserted in the High Court Judges (Conditions of Service) Act 1954 since out off date has been mentioned 1st day of October, 1974, the petitioner is not entitled to receive pension as Mr. Justice C.B. Agarwala died on June, 13, 1973. 12. 11. Mr. D.P. Singh further contends that since the Amending Act by which Section 17-A(1)(2) was inserted in the High Court Judges (Conditions of Service) Act 1954 since out off date has been mentioned 1st day of October, 1974, the petitioner is not entitled to receive pension as Mr. Justice C.B. Agarwala died on June, 13, 1973. 12. We have given our thorough consideration to the consideration raised on either side and after a careful perusal of the language of rule 2 of the High Court Judges Rules, 1956 and we are of the definite view that the family pension was admissible to widows of the High Court Judges who died even prior to October 1, 1974, and in the instant case, in our opinion, the petitioner is entitled to receive the family pension since June 14, 1973, the next succeeding date of the death of her husband late Mr. Justice C.B. Agarwala. 13. The other controversy involved in the present case is regarding the validity of the letter dated January 31, 1986 and February, 4 1986 (Annexure SA 1). 14. Mr. B. Dayal, counsel for the petitioner urged that the letter dated January 31, 1986 and February, 4 1986 (issued by the senior Deputy Accountant General) is arbitrary and is liable to be quashed. 15. We have carefully perused the impugned letter and we find that the letter does not contain any reason for the stand taken by the respondent that the family pension is admissible to the petitioner w.e.f. September 22, 1977. There appears to be no nexus whatsoever in mentioning an Imaginary date in the letter from which the petitioner is entitled to receive pension. The learned Additional standing counsel has not been able to place any material, Act, Rule, notification or the decision taken by the Central Government in this behalf and we find that there is much substance in the arguments of the counsel for the petitioner that the impugned letter is cryptic, non speaking and arbitrary. In view of the said fact we are of the opinion that the letter is a cryptic and wholly arbitrary and deserves to be quashed. 16. In the result, the petition succeeds and is allowed with costs. Let a mandamus be issued directing the respondent to pay the petitioner family pension as admissible to her being the widow of late Mr. 16. In the result, the petition succeeds and is allowed with costs. Let a mandamus be issued directing the respondent to pay the petitioner family pension as admissible to her being the widow of late Mr. Justice C.B. Agarwala, according to Rules applicable on the date of his death and as amended from time to time within a period of four months from to day. We also issue a writ of certiorari quashing the letter dated January, 31 1986 and February 4, 1986 (Annexure SA 1 to the supplementary affidavit). The petitioner shall also be entitled to the interest at the rate of 12% per annum from June 14, 1973 till payment is made. The payment made by the respondent in pursuance of the interim mandamus issued by this court dated April 25, 1985 shall be adjusted in the total amount to be paid to the petitioner. We further direct the respondent to pay family pension as admissible under the rules to the petitioner, every month during her life time.