R. C. MANKAD, J. ( 1 ) THESE petitions are filed by and on behalf of widows of retired Government servants claiming family pension under Resolution No. FPS-1077-2485-P dated 17/10/1977 of Government of Gujarat in Finance Department read with Resolution No. FPS-1071-J dated 1/01/1972 of Government of Gujarat in Finance Department. ( 2 ) SPECIAL Civil Application No. 969 of 1988 is filed by Gujarat Pensioner Samaj an Association of Gujarat State Government Pensioners and widows or spouses of retired Gujarat State Government servants who have died. This petition has been filed in representative capacity on behalf of widows or spouses and dependents of retired Gujarat State Government servants and other retired persons who are similarly situated who have died. Petitioner No. 2-Indumatibens husband retired from Government service on 4/03/1944 and expired on 1/04/1957 He was before he retired Head Accountant in Government Treasury at Kheda and after his retirement he received pension from Prantij Treasury till he died. Petitioner No. 2 was granted Rs. 8c. 00 P. M. from 1/07/1982 and this amount was increased to Rs. 375. 00 P. M. with effect from 1/10/1987 under the Scheme of Financial Relief to the widows of Government Employees/pensioners who were not covered under the Family Pension Scheme of 1972. This financial aid is received by petitioner No. 2 from Government of Gujarat. Petitioner No. 3-Mahalaxmibens husband who was working as Clerk on the establishment of District and Sessions Court at Nadiad retired from service with effect from 17/08/1970 and he received pension upto 9/05/1971 the date on which he expired. Petitioner No. 4- Shardabens husband retired as Administrative Officer of the District School Board Nadiad with effect from 15/02/1971 and he expired on 18/12/1971 Petitioner No. 5-Nirmalabens husband who was District Education Inspector retired from service with effect from 2/07/1974 and he expired on 14/07/1982 petitioner-Kamlaben of Special Civil Application No. 420 of 1988 is widow of Govindlal Harilal Sheth who retired from Government service as Clerk of the Court District Court Mehsana. Govindlal Harilal Sheth late husband of the petitioner retired from Government service on 12/09/1972 He expired on 7/09/1984 ( 3 ) UNDER the revised Pension Rules 1950 a Government servant had to complete service of not less than ten years in order to become eligible for the benefit of family pension. Govindlal Harilal Sheth late husband of the petitioner retired from Government service on 12/09/1972 He expired on 7/09/1984 ( 3 ) UNDER the revised Pension Rules 1950 a Government servant had to complete service of not less than ten years in order to become eligible for the benefit of family pension. The duration of pension under the said Rules was limited to a maximum period of ten years. The above provisions were not found to be adequate and a new Scheme of Family Pension for the State Government servants was framed by Government of Gujarat under Resolution No. FPS-1071-J dated 1/01/1972 issued by Government of Gujarat in Finance Department. This new Scheme of Family Pension came into force with effect from 1/06/1971 and was made applicable to all regular employees on pensionable establishment-temporary or permanent who were in service on 1/06/1971 or were recruited thereafter. Under paragraph 5 of the Resolution every Government servant eligible to the benefits of the above Scheme was required to surrender a portion of gratuity where admissible equal to his two months pay subject to the maximum of Rs 3600/- (revised to Rs. 5000. 00) Government of Gujarat in Finance Department by Resolution No. FPS-1077-2485-P dated 17/10/1977 decided to do away with the provision of recovery of two mouths pay from the amount of gratuity for the eligibility of the benefit of the New Family Pension Scheme 1972 Accordingly it directed that no deduction should b: made from the amount of death-cum-retirement gratuity as a contribution towards Family Pension Scheme under the New Family Pension Scheme 1972 The Resolution stated that the above order would take effect from 1/10/1977 It was made clear that the order would be applicable to those who retired on 1/10/1977 and thereafter. ( 4 ) AS pointed out above petitioner-Indumatibens husband had retired from Government service on 4/03/1944 and he died on 1/04/1957 Since he had retired from Government service prior to the revised Pension Rules of 1950 and Resolutions dated 1/01/1972 and 17/10/1977 petitioner-Indumatiben was not considered eligible for family pension. ( 4 ) AS pointed out above petitioner-Indumatibens husband had retired from Government service on 4/03/1944 and he died on 1/04/1957 Since he had retired from Government service prior to the revised Pension Rules of 1950 and Resolutions dated 1/01/1972 and 17/10/1977 petitioner-Indumatiben was not considered eligible for family pension. Husbands of petitioners-Mahalaxmiben and Shardaben had retired from Government service prior to 1/06/1971 the date on which the New Family Pension Scheme under Resolution dated 1/01/1972 was freeman Since they had already retired from service there was no question of their contributing 2 months pay as envisaged under Resolution dated 1/01/1972 Resolution dated 17/10/1977 modified the New Pension Scheme but the petitioners-Mahalaxmiben and Shardaben were found not eligible for family pension under the Government Resolutions dated 1/01/1972 and 17/10/1977. Petitioner-Nirmalabens husband and petitioner-Kamlabens husband retired from Government service after New Pension Scheme under Government Resolution dated 1/01/1972 came into force. This New Pension Scheme came into force with effect from 1/06/1971 Petitioner-Nirmalabens husband retired from Government service on 2/07/1974 while petitioner-Kamlabens husband retired from Government service on 12/09/1972 It however appears that husbands of both these petitioners opted not to contribute two months pay as provided in paragraph 5 of the Resolution dated 1/01/1972 and consequently the New Pension Scheme was not made applicable to them. Both the Government employees died after the modification of the New Pension Scheme by Resolution dated 17/10/1977 under which the Government decided to do away with the provision of recovery of two months pay from the amount of gratuity for eligibility for the benefit of the New Family Pension Scheme. However in spite of the fact that Government had decided to do away with the provision of recovery of two months pay from the amount of gratuity the New Pension Scheme was held not applicable to husbands of petitioners-Nirmalaben and Kamlaben. ( 5 ) UNDER the New Pension Scheme framed under Resolution dated 1/01/1972 read with Resolution dated 17/10/1977 Government servants who retired on or after 1/10/1977 are eligible for family pension under the said Scheme without contributing two months pay. In other words Government servants who retired from service on or after 1/10/1977 are eligible for New Family Pension Scheme although they had not contributed two months salary as required under Resolution dated 1/01/1972 Widows of such Government servants are eligible for the family pension under the said Scheme. In other words Government servants who retired from service on or after 1/10/1977 are eligible for New Family Pension Scheme although they had not contributed two months salary as required under Resolution dated 1/01/1972 Widows of such Government servants are eligible for the family pension under the said Scheme. Widows of Government servants who retired from Government service prior to 1/06/1971 and widows of Government servants who retired from Government service after 1/06/1971 but before 1/10/1977 and who had not contributed two months pay as provided in paragraph 5 of the Resolution dated 1/01/1972 are similarly situated as the widows of the Government servants who retired from Government service on or after 1/10/1977 since under the Resolution dated 17/10/1977 Government servants are not required to contribute two months pay as provided in paragraph 5 of the Resolution dated 1/01/1972 It is therefore that the above widows of Government servants who retired from Government service prior to 1/10/1977 are claiming that they being similarly situated as widows of Government servants who retired on or after 1/10/1977 are entitled to the family pension in accordance with the New Family Pension Scheme framed under Resolution dated 1/01/1972 read with Resolution dated 17/10/1977 It is submitted that the words who were in service on 1/06/1971 or are recruited thereafter in paragraph (1) and the words on or after 1/06/1971 and the words who has retired on or after 1/06/1971 and who has died or who may die on or after that date in paragraph (2) and clause (a) of paragraph 12 of the Resolution dated 1/01/1972 and the words. He will be applicable to those who have retired on 1/10/1977 and thereafter in paragraph 3 of the Resolution dated 17/10/1977 are arbitrary being violative of Art. 14 of the Constitution and they should there fore be deleted. It is submitted that the aforesaid words appearing in the Resolutions are severable from the other part of the Resolution. He will be applicable to those who have retired on 1/10/1977 and thereafter in paragraph 3 of the Resolution dated 17/10/1977 are arbitrary being violative of Art. 14 of the Constitution and they should there fore be deleted. It is submitted that the aforesaid words appearing in the Resolutions are severable from the other part of the Resolution. In support of this contention petitioners placed reliance on the decisions of the Supreme Court in D. S. Nakara v. Union of India AIR 1983 SC 130 Union of India v. Bidhubhushan Malik AIR 1984 SC 1177 N. L. Abhyankar v. Union of India AIR 1984 SC 1247 Poonamal v. Union of India and Premilabai Vishnu Dixit v. State of Maharashtra (Poonamals ease for short) AIR 1985 SC 1196 and in Smt. K. Papayama v. Union of india Writ Petition No. 4004 of 1985 decided on 28/08/1985 and the decisions of this Court in Special civil Application No. 1556 of 1983 decided on 4/09/1986 (Reported in Indumati A. Patel v. State of Gujarat 1987 (1) GLR 389 ) and in Special Civil Application No. 333 of 1988 decided on 8/03/1988 (Smt. K. M. Bijlani v. State ). ( 6 ) IT is submitted on behalf of respondent-State that under the old Pension Scheme of Government of India which was in force prior to 1/01/1964 family pension to the widows of Government servants was admissible for ten years after the death of the Government servant. such a Scheme was also in force in Gujarat. From 1/01/1964 Government of India introduced the revised Pension Scheme under which life time family pension became admissible to the widows of Government servants who contributed two months salary out of their retirement gratuity. Government servants opting out of this scheme continued to be governed by the old Pension Scheme under which family pension was admissible for ten years only after the death of the Government servant. It is submitted that Government of Gujarat did not adopt the revised Pension Scheme of the Government of India from 1/01/1964 However after considering persistent demands from Government servants Government of Gujarat also adopted contributory Family Pension Scheme from 1/06/1971 According to this Scheme Government servants who opted to contribute two months salary out of their retirement gratuity could get the benefits of life time pension for their widows. Government servants who opted out of the contributory Pension Scheme of 1971 continued to be governed by the old Pension Scheme under which pension was admissible for only ten years after the death of the Government servant. The condition of contribution of two months salary out of gratuity for the purpose of earning life time family pension was deleted by Government of India with effect from 22/09/1977 Government of Gujarat also made the revised Family Pension Scheme non-contributory with effect from 1/10/1977 It is submitted that the effect of ratio of the Supreme Courts judgment in D. S. Nakaras case is that any cut off date is relevant for the purpose of commencement of payment but it cannot be used for classifying Government servants into two separate groups of Government servants recruited prior to the cut on date and the Government servants recruited on or after the cut of date. It is however submitted that this ratio does not extend to the case of widows in the matter of family pension. Government servants who retired or died before 1/06/1971 could not obviously be brought under the contributory Family Pension Scheme of 1971 because in case of such Government servants the option of contribution of two months salary from the amount of gratuity could never be exercised. Therefore the families of Government servants who died or retired before 1/06/1971 continued to be governed by the old Pension Scheme. It is submitted that the question of any discrimination between Government servants recruited prior to 1/06/1971 and those recruited on or after 1/06/1971 does not arisen this case because the Government servants who died or retired before 1/06/1971 were no longer Government servants on 1/06/1971 It is further submitted that widows of Government servants who retired on or after 1/10/1977 became eligible for life time family pension. However Government servants who died or retired before 1/10/1977 were not existing as Government servants on 1/10/1977 and therefore the question of discrimination between Government servants recruited prior to 1/10/1977 and the Government servants recruited on or after 1/10/1977 did not arise It is submitted that the benefit of non-contributory Family Pension Scheme effective from 1/10/1977 is available to all Government servants whether recruited prior to 1/10/1977 or on or after 1/10/1977 provided the death occurred on or after 1/10/1977 It is submitted that the employer-employee relationship must end after the death of the employee. If the employer extends benefits in the form of family pension to the widow or minor children of the employee it is a welfare measure extended by the employer beyond the scope of employer-employee contract. As a welfare State the Government has been adopting such welfare measures and extending them to the employees from time to time. But extending such welfare benefits has to be within the limits of employers resources. Such welfare benefits should not be converted into the justiciable rights. It is further submitted that the Government of Gujarat as a welfare measure extended the benefit of relief to widows beyond the period of ten years in case of widows of Government servants who retired or died before 1/06/1971 and who were eligible only for ten years pension. It is further submitted that the Government of Gujarat is currently passing through a critical financial position. From April 1987 till date the Government of Gujarat had to spend about Rs. One thousand crores on drought relief measures as the State was very badly affected by successive third drought of a very severe nature. During the year 1988-89 the State Governments budget has a deficit of Rs. 343 crores. It is submitted that to pay family pension from 1/10/1977 to the families of Government servants. who died or retired before 1/10/1977 the Government will have to pay a sum of Rs. 50 crores for the period from 1/10/1977 till date. It is not possible for the Government to pay this amount. ( 7 ) IT is submitted that the State Government had filed Letters Patent Appeal against the judgment of this Court in Special Civil Application No. 1556 of 1983 (Indumati A. Patel v. The state of Gujarat) but this Appeal was dismissed on the ground that it was barred by limitation the application for condonation of delay having been rejected. The Government of Gujarat made a petition for Special Leave to Appeal No. 12943 of 1987 in the Supreme Court. There was however delay of three days in submission of this petition for Special love to Appeal. The Supreme Court condoned the delay of three days. It however dismissed the appeal holding that the High Court was right in rejecting Letters Patent Appeal on the ground of delay. The Supreme Court however did not express any opinion on the contentions raised in the petition. The Supreme Court condoned the delay of three days. It however dismissed the appeal holding that the High Court was right in rejecting Letters Patent Appeal on the ground of delay. The Supreme Court however did not express any opinion on the contentions raised in the petition. It is therefore submitted that the contentions raised before the Supreme Court were still open for adjudication by this Court. ( 8 ) IT is further submitted that as a measure of sympathetic approach to the families of Government servants who died or retired before 1/10/1977 the Government by way of settlement with the petitioners will be willing to apply non-contributory Family Pension Scheme prospectively and would also he willing to consider payment of a token amount of a modest human amount to the widows of Government servants who retired or died before 1/10/1977 instead of actual family pension from 1/10/1977 till date. It may be mentioned here that the parties to these petitions had made since to efforts to bring about a settlement but their efforts failed and no settlement was arrived at. ( 9 ) IN the historic decision of Supreme Court in D. S. Nakaras case (supra) the question which arose for consideration before the Supreme Court was whether the Government servants who retired before the specified date were eligible for the revised Pension Scheme. On 25/05/1979 Government of India Ministry of finance issued Office Memorandum No. F-19 (3)-EV-79 whereby the formula for computation of pension was liberalised but made it applicable to Government servants who were in service on 31/03/1979 and retired from service on or after that date (specified date for short ). The formula introduced a slab system for computation of pension. This liberalised pension formula was applicable to employees governed by the 1972 Rules retiring on or after the specified date. The pension for the service personnel which will include Army Navy and Air Force staff is governed by the relevant regulations. The formula introduced a slab system for computation of pension. This liberalised pension formula was applicable to employees governed by the 1972 Rules retiring on or after the specified date. The pension for the service personnel which will include Army Navy and Air Force staff is governed by the relevant regulations. By the Memorandum of the Ministry of Defence bearing No. B/40725/ag/ps-C/1816 AD (Pension)/services dated 28/09/1979 the liberalised pension formula introduced for the Government servants governed by the 1972 Rules was intended to the Armed Forces personnel subject to limitation set out in the memorandum with a condition that the New Rules of Pension would be effective from 1/04/1979 and may be applicable to all service officers who become/became non-effective on or after that date (for short specified date ). Liberalised pension formula became applicable prospectively to those who retired on or after 31/03/1979 in case of Government servants covered by 1972 Rules and in respect of defence personnel those who became/become non-effective on or after 1/04/1979 Consequently those who retired prior to the specified date were not entitled to the benefits of the liberalised pension formula. The Supreme Court held to the effect that with the expanding horizons of socio-economic justice the Socialist Republic and Welfare State which the country endeavours to set up and the fact that the old men who retired when emoluments were comparatively low are exposed to vagaries of continuously rising prices the falling value of rupee consequent upon inflationary inputs by introducing an arbitrary eligibility criteria being in service and retiring subsequent to the specified date for being eligible for the liberalised Pension Scheme and thereby dividing a homogeneous class the classification being not based on any discernible rational principle and being wholly unrelated to the objects sought to be achieved by grant of liberalised pension and the eligibility criteria devised being thoroughly arbitrary the eligibility for liberalised Pension Scheme of being in service on the specified date and retiring subsequent to that date in the memoranda violates Art. 14 and is unconstitutional and is liable to he struck down. As the arbitrary and discriminatory portion of memoranda could be easily severed the Supreme Court directed that both the memoranda shall be enforced and implemented after severence of unconstitutional part. As the arbitrary and discriminatory portion of memoranda could be easily severed the Supreme Court directed that both the memoranda shall be enforced and implemented after severence of unconstitutional part. The Supreme Court however directed that the arrears of pension prior to the specified date are not required to be paid to those who have retired before the specified date because to that extent the scheme is prospective. Accordingly the Supreme Court held that all the pensioners governed by the 1972 Rules and Army Pension Regulations would be entitled to pension under the liberalised Pension Scheme from the specified date irrespective of their date of retirement. ( 10 ) IN Union of India v. Bidhubhushan Malik (supra) the Supreme Court confirmed the decision of the Allahabad High Court which held as follows:"the High Court Judges (Conditions of Service) Act 1954 (as amended) shall be read down as under: In para 10 of the First Schedule the words and who has retired on or after the 1st day of October 1974 are unconstitutional and are struck down. Omitting the unconstitutional part it is declared that the Judges (including the Chief Justices) of the High Courts are entitled to pension as computed under the High Court Judges (Conditions of Service) Act 1954 (as amended) irrespective of the date of retirement. The date 1/10/1974 continues to be relevant as being one from which the liberalised pension became operative under the High Court Judges (Conditions of Service) (Amendment) Act 1976 irrespective of the date of retirement and hence there is no question of payment of arrears of pension for the period preceding 1/10/1974 Similar view was taken by the Supreme Court in N. L. Abhyankar v. Union of India (supra)". ( 11 ) IN Poonamal v. Union of India (supra) question similar to the one which arises for consideration in these petitions arose for consideration before the Supreme Court while dealing with group of petitions filed by widows of erstwhile Government servants who were not in receipt of family pension and also appeal against the decision of the Division Bench of the Bombay High Court which had rejected the writ petition filed by widows who were similarly situated. The Supreme Court considered the Family Pension Scheme of 1950 liberalised Pension Scheme which was introduced in 1964 and further liberalisation of the Pension Scheme of 1964 by an order dated 22/09/1977 framed by Government of India. Under the liberalised Family Pension Scheme of 1964 Government servants who contributed 2 months salary out of death-cum-retirement gratuity were eligible for liberalised Pension Scheme. However those Government servants who specifically opted out of the liberalised Scheme by not contributing 2 months salary out of death-cum-retirement gratuity were not eligible for the liberalised Pension Scheme. However by order passed on 22/09/1977 the Government of India had done away with the pre-condition of contribution of months salary out of death-cum-retirement gratuily. Accordingly since 22/09/1977 the contributory scheme ceased to exist. A very anomalous situation arose. The widows of the Government servants who had not agreed to make the contribution in accordance with the 1964 Scheme were denied the benefit of Pension Scheme and this disability continued even after the changes introduced in 1977 when the Scheme ceased to be contributory. Such widows moved the Supreme Court by way of writ petitions. Widows similarly situated had also filed Writ Petition No. 3749 of 1984 in the High Court of Bombay. The Division Bench of the High Court of Bombay rejected this petition. The widows were granted leave to appeal against the decision of the Bombay High Court and this appeal came up for hearing before the Supreme Court alongwith the writ petitions filed by the widows as aforesaid. While dealing with these petitions the Supreme Court observed that 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. It is further observed that where the Government servant rendered service to compensate which a Family Pension Scheme is devised the widow and the dependent minors would equally be entitled to family pension as a matter of right. The Supreme Court went on to observe fin fact we look upon pension not merely as 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. The Supreme Court went on to observe fin fact we look upon pension not merely as 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. Nakaras judgment. The Supreme Court further went on to observe as follows:"at the hearing of this group of matters we pointed out that since the family pension scheme has become non-contributory effective from 22/09/1977 any attempt at denying its benefit to widows and dependants of Government Servants who had not taken advantage of the 1964 liberalisation scheme by making or agreeing to make necessary contribution would be denial of equality to person similarly situated and bench violative of Art. 14. If widows and dependents of deceased Government servants since after 22/09/1977 would be entitled to benefits of family pension scheme without the obligation of making contribution those widows who were denied the benefits on the ground that the Government servants having not agreed to make the contribution could not be differently treated because that would be introducing an invidious classifications among those who would be entitled to similar treatment. The statement which is reproduced in the judgment was made on behalf of Union of India before the Supreme Court. After the statement was made some clarifications were sought from the Union of India and these clarifications were also made. The Supreme Court disposed of the writ petition in terms of the statement and the clarifications made on behalf of the Union of India. The appeal against the decision of the Division Bench of the Bombay High Court was allowed on the same terms. ( 12 ) THE aforesaid decision of the Supreme Court was followed by this Court in Special Civil Application No. 1556 of 1983 (Indumati A. Patel v. State of Gujarat) and it was declared that cut off date namely 1/06/1971 prescribed in the Government Resolution dated J 1/01/1972 referred to above is illegal and void as the same is violative of the provisions of Art. 14 of the Constitution. It was further directed that the petitioner of that Special Civil Application would be entitled to claim the benefits flowing from the Resolution as if the words who were in service on or after 1/06/1971 were never there in the Resolution. It is stated on behalf of the respondent-State that the State had preferred a Letters Patent Appeal against the said decision but as the appeal was time barred it had made an application for condonation of delay. This application for condonation of delay was rejected and the appeal was dismissed as time barred. The State filed petition for Special Leave before the Supreme Court but this petition was also time barred by 3 days. The Supreme Court condoned the delay in filing the petition but confirmed the decision of Division Bench of this Court refusing to condone the delay and entertaining Letters agent Appeal. It is stated on behalf of the respondent-State that the Supreme Court clarified that all the contentions raised on behalf of the Static Government before the Supreme Court were left open. It is therefore submitted that inspite of the said decision of this Court in Indumati A. Patels case ( 1987 (1) GLR 389 ) all the contentions raised on behalf of the State Government are still open for adjudication. ( 13 ) QUESTION similar to one which arises for consideration in these petitions had arisen for my consideration in Special Civil Application No. 333 of 1988 adverted to above. The question which arose for my consideration in that Special Civil Application was whether by reason of failure on the part of the deceased Government employee to contribute two months pay family pension could be denied to his widow who was the petitioner. It was held that this question was directly covered by the decision of the Supreme Court in Poonamal v. Union of India. Following the said decision of the Supreme Court the said Special Civil Application was allowed and the respondent-State was directed to grant family pension to the petitioner with effect from 5/05/1980 the date on which her husband who was a retired Government employee died. It is stated before me that Letters Patent Appeal preferred against the said decision was dismissed. Following the said decision of the Supreme Court the said Special Civil Application was allowed and the respondent-State was directed to grant family pension to the petitioner with effect from 5/05/1980 the date on which her husband who was a retired Government employee died. It is stated before me that Letters Patent Appeal preferred against the said decision was dismissed. 14 The controversy involved in these petitions would appear to be difficult and completely covered by the decisions of the Supreme Court in D. S. Nakaras case and Poonamals case (supra ). In D. S. Nakaras case the question which was considered by the Supreme Court was whether there was justification for dividing homogeneous class of Government servants who had retired from service for application of liberalised pension formula. the liberalised pension formula became applicable or effective from a specified dale prospectively. In other words it was made applicable to those who retired on or after the specified date. The Supreme Court held that eligibility criteria of being in service and retiring subsequent to the specified date was arbitrary dividing a homogeneous class the classification being not based on any discernible rational principle and being wholly unrelated to the objects sought to be achieved by grant of liberalised pension had offended Art. ( 14 ) OF the Constitution. The New Family Pension Scheme framed by the State Government under Resolutions dated 1/01/1972 and 17/10/1977 divides the homogeneous class of widows and dependents of retired Government servants by introducing eligibility criteria of Government servant being in service and retiring subsequent to the specified date which is equally arbitrary as the liberalised pension formula in the case of the retired Government servants which came up for consideration before the Supreme Court in D. S. Nakaras case Widows and dependents of Government servants who retired on or after 1/10/1977 are eligible to claim family pension under the New Family Pension Scheme although such Government servants whose widows and dependents they are had not made the contribution. How are these widows and dependents differently situated than the widows and dependants or Government servants who retired prior to 1/06/1971 or the widows and dependants of Government servants who retired between June J 1971 and 1/10/1977 and who had not made the contribution ? The obvious answer to this question is that they are not differently but similarly situated. How are these widows and dependents differently situated than the widows and dependants or Government servants who retired prior to 1/06/1971 or the widows and dependants of Government servants who retired between June J 1971 and 1/10/1977 and who had not made the contribution ? The obvious answer to this question is that they are not differently but similarly situated. The division of the homogeneous class of widows and dependants of the Government servants which is sought to be made by applying the above criteria results in classification which is not based on any discernible rational principle and which is wholly unrelated to the object sought to be achieved by the New Family Pension Scheme. As held in the case of D. S. Nakara it must be held here also that the eligibility criteria which is devised is thoroughly arbitrary and it violates Art. 14 of the Constitution. ( 15 ) AN identical view has been taken by the Supreme Court in Poonamals case. There the Supreme Court was dealing with a case of widows and dependants of Government servants who had retired from service before the Family Pension Scheme became non-contributory claiming benefit of the Family Pension Scheme. It appears that the State Government has followed the Central Government in framing the New Family Pension Scheme in 1971 and modifying it in 1977. The New family Pension Scheme and its modification are broadly on the same pattern as the Family Pension Scheme framed by the Central Government and the modification of it made by it. The Supreme Court held to the effect that after the Family Pension Scheme became non-contributory if the widows and dependants of the Government servants who had retired from service before the Family Pension Scheme was made non-contributory and who bad not made the contribution are denied the benefit of the family Pension Scheme would amount to denial of equality to them. It was held that such widows and dependants were similarly situated as the widows and dependants of Government servants who retired from service after Family Pension Scheme became nun-contributory. It was held that such widows and dependants were similarly situated as the widows and dependants of Government servants who retired from service after Family Pension Scheme became nun-contributory. The Supreme Court therefore held that any attempt at denying the benefit of the family Pension Scheme to the widows and dependants of Government servants who had not taken the advantage of 1964 liberalised Scheme by making or agreeing to make the necessary contribution would be denial of equality to the persons similarly situated and hence violative of Art. 14. The position of the widows and dependants of the State Government servants who retired prior to 1/06/1971 and who retired between 1/06/1971 and 1/10/1977 but who had not made the contribution is identical. Such widows and dependants cannot be treated differently from the widows sad dependants of the Government servants who retired from service on or after 1/10/1977 If such widows and dependants are denied the benefit of New Family Pension Scheme either on the ground that the Government servant had retired before the New Family Pension Scheme came into force or on the ground that the Government servant had failed to make the contribution when the Scheme was contributory would be denial of equality to the persons similarly situated and hence violative of Art. 14. In my opinion therefore the ratio of the decisions of the Supreme Court in D. S. Nakaras case and Poonamals case applies with equal force to the case of the petitioners and other similarly situated persons. For the same reasons which are recorded in the decisions of the Supreme Court it must be held that the words who were in service on 1/06/1971 or are recruited thereafter occurring in paragraph (1) the words on or after 1/06/1971 and and who has retired on or after 1/06/1971 and who has died or who may die on or after that date in paragraph (2) and clause (a) of paragraph 12 of the Resolution dated 1/01/1972 and the words i e. will be applicable to those who have retired on 1/10/1977 and thereafter in paragraph 3 of the Resolution dated 17/10/1977 introduce an arbitrary eligibility criteria for being eligible for the New Family Pension Scheme and are violative of Art. 14 of the Constitution. ( 16 ) INSPITE of the clear pronouncements of the Supreme Court a very curious stand has been taken up on behalf of the State Government. It is urged that the ratio of the decision of the Supreme Court in D. S. Nakaras case does not extend to the case of widows in the matter of family pension. It is urged that the effect of the ratio of the Supreme Courts judgment in the said case is that any cut off date is relevant for the purpose of commencement of payment but it cannot be used for classifying Government servants recruited prior to the cut off date and the Government servants recruited on or after the cut off date. It is submitted that the Government servants who retired or died before 1/06/1971 were governed by the old Pension Scheme and they could not be brought under contributory family Pension Scheme of 1971. Government servants who died or retired before 1/06/1971 were no longer Government servants on 1/06/1971 and therefor according to the State Government the question of any discrimination between Government servants recruited prior to 1/06/1971 and those recruited thereafter does not arise. Similarly Government servants who retired or died before 1/10/1977 were not existing as Government servants on 1/10/1977 and therefore the question of discrimination between Government servants recruited prior to 1/10/1977 and those recruited thereafter does not arise. It is submitted that the employer-employee relationship ends after the retirement of the employee. It is urged that if the employer extends benefit in the form of family pension to the widow or minor children of the employee it is a welfare measure extended by the employer beyond the scope of employer-employee contract. Such welfare benefits could not be extended to those who had ceased to be Government servants. In any case such welfare benefits do not confer any justiceable rights. ( 17 ) IT is difficult to comprehend as to how such a stand can be taken up by the State Government after the judgment of the Supreme Court in Poonamals case. In Poonamals case it has been clearly laid down that payment of pension does not depend upon the discretion of the Government but it is governed by the relevant Rules and anyone entitled to pension under the Rules can claim it as a matter of right. In Poonamals case it has been clearly laid down that payment of pension does not depend upon the discretion of the Government but it is governed by the relevant Rules and anyone entitled to pension under the Rules can claim it as a matter of right. Where Government servants rendered service to compensate which Family Pension Scheme is devised the widow and dependant minors would equally he entitled to family pension as a matter of right. It is therefore not open to the State Government to contend that Family Pension Scheme does not confer any right and that it is only A welfare measure conferring benefits and Dot any right. Again here there is no question of discrimination between the Government servants also were recruited or who retired or died prior to certain specified date and those who were recruited subsequent to that date. What we are considering is whether discriminatory treatment is given to the widows and dependants of the Government servants who retired or died prior to 1/06/197 1/10/1977 These widows are similarly situated as the widows of Government servants who retired on of after 1/10/1977 Government servants who retired on or after 1/10/1977 are not required to make any contribution for becoming eligible for the New Family Pension Scheme. This is the position which emerges after modification of the New Family Pension Scheme by Resolution dated 17/10/1977 Government servants who retired prior to 1/06/1971 were governed by the old Pension Scheme of 1950 and those Government servants had no occasion to opt for the New Pension Scheme by making the contribution. Government servants who retired on or after 1/06/1971 but before 1/10/1977 were eligible for the New Family Pension Scheme only if they made the contribution; and if they did not make the contribution their position was the same as of those who retired prior to 1/06/1971 However after the New Family Pension Scheme was liberalised and made non-contributory in October 1977 no Government servant was required to make contribution to become eligible for the New Family Pension Scheme. In other words on or after 1/10/1977 Government servant was eligible for New Family Pension Scheme without making the contribution and his widow would be entitled to the benefits of the family pension under the said Scheme. In other words on or after 1/10/1977 Government servant was eligible for New Family Pension Scheme without making the contribution and his widow would be entitled to the benefits of the family pension under the said Scheme. If the stand taken up by the Government were accepted as held above there would be invidious classification dividing homogeneous class of widows and dependants of Government servants. Widows and dependants of Government servants who retired or died prior to 1/06/1971 or the widows and dependants of Government servants who retired between 1/06/1971 and 1/10/1977 and who had not made the contribution are Similarly situated as the widows and dependants of Government servants who retired on or after 1/10/1977 since none of those Government servants whose widows and dependants they are had made the contribution. The position of the widows and dependants of the Government servants who retired on or after 1/10/1977 ;b in no way different from the widows and dependants of Government servants who retired or died prior to 1/06/1971 or the widows and dependants of Government servant who retired between 1/06/1971 and 1/10/1977 and who had not made the contribution. It is these widows and dependants who are not given equal treatment. There is no question of giving unequnl treatment to Government servants who had retired prior to the specified date and those who had retired thereafter. The whole approach also stand of the State Government are misconceived. ( 18 ) IT was urged on behalf of the State Government that the decision of the Supreme Court in Poonamals case was on the basis of the concession made on behalf of the Union of India and therefore this decision had no binding effect. This argument proceeds on misreading of the decision of the Supreme Court. It also overlooks the Act that the Supreme Court was not dealing merely with the case of widows of Central Government servants but it was also dealing with the case of windows of Maharashtra State Government servants. The Supreme Court has clearly held that to treat windows of Central Government servants who retired prior to 22/09/1977 differently form the windows of Central Government servants who have retired on or after that date would amount to discrimination violating Art. 14 of the Constitution. This view of the Supreme Court was not based on any concession made by the Union of India. This view of the Supreme Court was not based on any concession made by the Union of India. In any case no concession was made on behalf of the State of Maharashtra. The Supreme Court had also heard the appeal filed by the windows of Maharashtra State Government servants against the decision of the Bombay High Court rejecting their writ petition. And the Supreme Court for the reasons recorded in the judgment allowed their appeal. ( 19 ) IN the context of the stand taken up by the State Government, it is interesting to refer to the following observations made by the Supereme Court in Poonamals case (AIR 1935 SC 1196):family pension came to be conceptualized 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 window or the minor children were not only rendered orphans but faced more often destitution and starvation. Traditionally speaking the window was hardly in a position to obtain gainful employment. the suffered the most inasmuch as she was deprived of the companionship of the husband and also became economically orphaned. As measure of socioeconomic justice family pension scheme was devised to help the windows tide over the crisis and till the minor children attain majority to extend them some succour. This appeared to be the underlying motivation in devising the family pension scheme. It was liberalised from time to time. The liberalisation was however subject to the condition that the Government servant had in his lifetime agreed that he shall make a contribution of an amount equal to two months emoluments or Rs. 5000. 00 whichever is less out of the death-cum retirement gratuity. Those Government servants who did not accept this condition were denied the benefit of family pension scheme". The Union of India in its onward march for ushering in socio-economic justice in the form of social security further took a bold and imaginative step on Sept 22/09/1977 by which the pre-condition of contribution two months emolument out of death-cum-retirement gratuity was done away with. . . . . . ( 20 ) HERE what we find is the State Government has taken retrogratory and unimaginative step. The object of the Family Pension Scheme is to usher in socio-economic justice. . . . . . ( 20 ) HERE what we find is the State Government has taken retrogratory and unimaginative step. The object of the Family Pension Scheme is to usher in socio-economic justice. However the State Government by taking up the stand which it has denied socio-economic justice to the window and dependants of Government servants who retired or died prior to 1/06/1971 and the window and dependants of Government servants who had not made the contribution. It may be that as a result of liberalisation of Family Pension Scheme the benefit of which as held burden may fall upon the State Government; but the financial resources of the State Government are not so inadequate as not to bear this burden. Hundreds of crores of rupees have been expended in making payment of arrears of pay and allowances to the Government servants as a result of revision of pay-scales and allowances of Government servants with effect from 1/01/1986 and as compared to the large amount which has been expended the amount which will become payable to the petitioners and widows and dependants of retired Government servants whom they represent would be very small. In any case additional burden can hardly justify unequal or discriminatory treatment violative of Art. 14 of the Constitution to such widows and dependants. The State Government cannot take up a stand which would violate salutory constitutional provision. . ( 21 ) THE decision of the Supreme Court in Poonamals case is binding on this Court. As already pointed out above this Court following the said decision has allowed writ petitions filed by widows of retired Government servants. I am bound by these decisions also. ( 22 ) AS held by the Supreme Court the aforesaid un-constitutional and discriminatory portion in the Resolutions dated January 1 1972 and 17/10/1977 can be easily severed and both these Resolutions can be enforced and implemented after severence of the unconstitutional part. These petitions must therefore succeed. I am bound by these decisions also. ( 22 ) AS held by the Supreme Court the aforesaid un-constitutional and discriminatory portion in the Resolutions dated January 1 1972 and 17/10/1977 can be easily severed and both these Resolutions can be enforced and implemented after severence of the unconstitutional part. These petitions must therefore succeed. ( 23 ) THE learned Counsel for the petitioners stated that the petitioners were not claiming arrears of pension prior to 1/10/1977 In other words it was clarified that petitioners were not pressing their claim for arrears of pension prior to 1/10/1977 It is therefore not necessary for me to deal with the question of arrears of pension prior to 1/10/1977 Petitioners have also not pressed their claim for interest on the amount payable to them for the present. ( 24 ) IN the result these petitions are allowed. It is declared that the words who were in service on 1/06/1971 or are recruited thereafter occurring in paragraph (1) the words on or after 1/06/1971 and and who has retired on or after 1/06/1971 and who has died or who may die on or after that date in paragraph (2) and clause (a) of paragraph 12 of the Resolution dated 1/01/1975 referred to above; and the words i e. will be applicable to those who have retired on 1/10/1977 and thereafter in paragraph 3 of the Resolution dated 17/10/1977 referred to above are arbitrary and violative of Art 14 of the Constitution of India and they shall stand severed and deleted from the said two Resolutions. It is directed that the said two Resolutions shall he enforced and implemented after severence and deletion of the said unconstitutional part. It is directed that the said two Resolutions shall he enforced and implemented after severence and deletion of the said unconstitutional part. ( 25 ) IT is further declared that the petitioners and widows and dependants of the Government servants and other persons to whom the New Pension Scheme is applicable who are similarly situated moaning thereby the widows and dependants of Government servants and such other persons who retired or died prior to 1/06/1971 and the Government servants and such other persons who retired between 1/06/1971 and 1/10/1977 who had not made the contribution shall he entitled to claim benefit of New Family Pension Scheme flowing from the said two Resolutions as if the aforesaid portions or words which are held to be unconstitutional and severed and deleted were never there in the said Resolutions ( 26 ) IT is however clarified that the arrears of pension prior to 1/10/1977 are not required to be paid to the widows of the Government servants and other persons referred to above who have retired before that date because to that extent the aforesaid New Pension Scheme is prospective and the claim in respect thereof is not pressed In other words the petitioners ar widows and the dependants of the retired Government servants and other persons referred to above who are similarly situated as the petitioners shall be entitled to family pension under the New Family Pension Scheme with effect from 1/10/1977 ( 27 ) RESPONDENT-STATE Government is directed to compute the amount of pension and arrears of pension payable to the petitioners and such widows and dependants on the above basis and make payment of the arrears of pension on or before 31/05/1989 The State Government is further directed to pay to each of the petitioners and such widows and dependants of the retired Government servants and other persons referred to above who are similarly situated family pension from month to month regularly on or before 10th of every month with effect from 1/04/1989 ( 28 ) RULE made absolute in each of these petitions with costs The costs shall include the expenses which the petitioners have incurred for following the procedure laid down in Order 1 Rule 8 of the Code of Civil Procedure. Orders accordingly. .