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2011 DIGILAW 538 (GAU)

R. Lalkhum v. State of Manipur

2011-06-21

T.NANDAKUMAR SINGH

body2011
JUDGMENT T. Nandakumar Singh, J. 1. The petitioner, being aggrieved by the arbitrary actions of the respondents for denying pension to the petitioner's husband, late R. Rothanga, who was serving as Chief Executive Officer of the Churachandpur Autonomous District Council and retired from service w.e.f. 31.12.1997, filed the present writ petition for allowing her to enjoy pension and other pensionary benefits and family pension for the service rendered by her husband, late R. Rothanga. Heard Mr. Kh. Tarunkumar Singh, learned counsel appearing for the petitioner, Mr. L. Shyamkishore, learned senior Advocate assisted by Mr. L. Anand, learned counsel appearing for the respondents No. 1 and 2, Mr. H. Samarjit, learned Govt. Advocate appearing for the respondents No. 3, 4 and 5 and Mr. C. Kamal, learned CGSC appearing for the respondent No. 6. 2. Factual Backgrounds The petitioner is a member of the Scheduled Tribe (for short S.T.) community of the State of Manipur and legally married wife of late R. Rothanga. Petitioner's husband was initially appointed as Lower Division Clerk in the erstwhile Territorial Council of Manipur vide order dated 22.12.1959 issued by the Chief Executive Officer, Manipur Territorial Council; later on, promoted to the post of Upper Division Clerk in the office of Deputy Inspector of Schools (NCC) vide order of the Chief Executive Officer, Manipur Territorial Council dated 22.8.1962. The service of the petitioner's husband as UDC in the Directorate of Education, Government of Manipur, was confirmed w.e.f. 01.03.1963 vide order of the Director of Education, Government of Manipur, dated 25th April, 1966 in which the name of the petitioner's husband appeared at S1. No. 15. The petitioner's husband was appointed by promotion to the post of Accountant of the Directorate of Education, Manipur, in the scale of Rs. 335-575/- p.m. with usual allowances as admissible under rules on ad-hoc basis for a period of six months with immediate effect till the post was filled up on regular service against the vacancy caused due to the promotion of Shri Ch. Norendra Singh. Later on, on the recommendation of the duly constituted DPC, the petitioner's husband was appointed to the post of Head Clerk against the existing vacancy of one Head Clerk in District Council Office, Manipur South Autonomous District, Churachandpur vide order of the Chairman, District Council, dated 22.5.1979. Norendra Singh. Later on, on the recommendation of the duly constituted DPC, the petitioner's husband was appointed to the post of Head Clerk against the existing vacancy of one Head Clerk in District Council Office, Manipur South Autonomous District, Churachandpur vide order of the Chairman, District Council, dated 22.5.1979. On his appointment as Head Clerk, the Deputy Director of Education (S), Government of Manipur, issued order being No. 2/25/67-ED(II), Imphal, the 30th May, 1979, for releasing the petitioner's husband w.e.f. 31.5.1979 to enable him to join in the office of the Chairman, Manipur South Autonomous District Council, Churachandpur, as Head Clerk. Vide order of the Chief Executive Officer, District Council, Manipur South Autonomous District Council, dated, 15th July, 1980, the petitioner's husband was promoted to the post of Accounts Officer, District Council (South), Churachandpur in the scale of pay of Rs. 500-35-745-EB-40-1065-EB-45-1245/- with usual allowances as admissible under the rules with effect from the date he took over the charge of Accounts Officer. Subsequently, the service of the petitioner's husband was absorbed in the Autonomous District Council, Churachandpur with condition that his services in his parent department will be counted for pension, etc. vide order of the Chairman of the District Council, Churachandpur, being No. 1/4/DAC-8/80(Pt), Churachandpur on 20th December, 1984, which reads as follows:- "OFFICE OF THE AUTONOMOUS DISTRICT COUNCIL: CHURACHANDPUR ORDERS BY THE CHAIRMAN: DISTRICT COUNCIL Churachandpur, the 20th December, 1984. No. 1/4/DAC-S/80(Pt.): In the interest of the Council, Shri R. Rothanga, Accounts Officer on deputation from the Education Department, Manipur is hereby absorbed in this Council with immediate effect. On his absorption in the Council, his services in the Education Department will be counted for pension etc. Sd/- (L.M. Haokip) Chief Executive Officer Autonomous District Council: Churachandpur." 3. The Governor of Manipur, in exercise of the powers conferred under Rule 45 of the Manipur (Hill Areas) District Council Rules, 1972 read with clause (3) of Section 32 of Manipur (Hill Areas) District Council Act, 1971 and on the recommendation of the DPC held on 27th August, 1991, was pleased to regularize the service of the petitioner's husband as Accounts Officer from the date he was absorbed in the services of the District Council, Churachandpur, vide order No. CHGA/81/90(Pt) dated 2nd September, 1991. By an order of the Government of Manipur dated 2nd November, 1996, the petitioner's husband was allowed to hold the charge of the Chief Executive Officer of the Churachandpur Autonomous District Council. While functioning as Chief Executive Officer, Autonomous District Council, Churachandpur, the petitioner's husband, on attaining the age of superannuation, retired from service w.e.f. 31.12.1997 (AN). 4. To provide for the establishment of District Councils in the Hill Areas to the Union Territory of Manipur, the Parliament in the Twenty-second Year of the Republic of India enacted an Act called "The Manipur (Hill Areas) District Council Act, 1971" (for short District Council Act, 1971). Rule making powers of the Government are mentioned in Section 51 of the District Council Act, 1971 for the subjects mentioned therein. The Governor of Manipur under clause (vi) of sub-section (2) of Section 51 of the District Council Act, 1971 has to make rules for regulating employment, payment, suspension and removal of officers and staff of the District Council. For easy reference, Section 51 of the District Council Act, 1971 is quoted hereunder:- "51.(1) Without prejudice to the power to make rules under any other provision of this Act, the Administrator may, after previous publication, make, by notification in the Official Gazette, rules for the purpose of carrying out the provisions of this Act. For easy reference, Section 51 of the District Council Act, 1971 is quoted hereunder:- "51.(1) Without prejudice to the power to make rules under any other provision of this Act, the Administrator may, after previous publication, make, by notification in the Official Gazette, rules for the purpose of carrying out the provisions of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may- (i) regulate the conduct of business of a District Council, (ii) prescribe the forms in which the budget estimate is to be prepared and the dates for the various stages of its completion; (iii) determine the language in which the business of a District Council will be transacted; (iv) regulate the powers of a District Council to transfer property; (v) regulate the powers of a District Council to contract arid do other things necessary for the purposes of its constitution and the mode of executing contracts, (vi) regulate the employment, payment, suspension and removal of officers and staff of a District Council; (vii) protect the terms and conditions of service of Government servants transferred to a District-Council; (viii) prescribe the forms for statements, registers, estimates and accounts of a District Council and regulate the keeping, checking and publication of such accounts; (ix) prescribe the authority by whom and the manner in which the accounts of a District Council shall be audited; and (x) provide for any other matter for which rules have to be made under this Act." 5. In exercise of Section 51 and Section 53 of the District Council Act, 1971, the Governor of Manipur, while in making rules and bye-laws, the District Council, may direct that the breach of the same shall be punishable with fine which may extend to one hundred rupees and in the case of a continuing breach with a further fine which may extend to ten rupees of every day during which the breach is continued after the offender has been convicted of such breach. In default of payment of any fine, the defaulter may be punishable with imprisonment for a term which may extend to fifteen days. The Governor of Manipur, in exercise of the powers conferred by Section 51 read with Section 53 of the District Council Act, 1971, makes rules called "The Manipur (Hill Areas) District Council Rules, 1972" (for short "District Council Rules, 1972"). The Governor of Manipur, in exercise of the powers conferred by Section 51 read with Section 53 of the District Council Act, 1971, makes rules called "The Manipur (Hill Areas) District Council Rules, 1972" (for short "District Council Rules, 1972"). Rule 53 of the District Council Rules, 1972 clearly provides that the fundamental Rules, the Supplementary Rules and other rules prevailing under the Manipur Government governing the conditions of service for Government servants shall apply to all officers and other employees of the Council in respect of air matters or any of them relating to their leave, pay leave allowance, subsistence grant and similar other matters, except where these Rules provide otherwise. 6. The Governor of Manipur was pleased to make a rule called "Manipur (Hill Areas) District Council (Amendment) Rules, 1991 to amend the Manipur (Hill Areas) District Council Rules, 1972 vide Notification No. CHA/70/83-Pt.I, the Imphal 9th July, 1991, which reads as follows:- "MANIPUR GAZETTE EXTRAORDINARY PUBLISHED BY AUTHORITY No. 262 Imphal, Thursday, July, 18, 1991 (Asadha 27, 1913) GOVERNMENT OF MANIPUR SECRETARIAT: HILL COMMISSIONER'S DEPARTMENT NOTIFICATION Imphal, the 9th July, 1991 No. CHA/79/83-Pt-I: In exercise of the powers conferred by Section 51(2)(vi) of the Manipur (Hill Areas) District Council Act, 1971 the Governor of Manipur is hereby makes the following rule to amend the Manipur (Hill Areas) District Councils Rules, 1972. 1. Short title and commencement :- (a) This rule may be called the Manipur (Hill Areas) District Councils (Amendments) Rules, 1991. (b) This rule shall be deemed to have come into force on the first day of July, 1991. 2. The word "pension" shall be inserted after the words ' subsistence grant' mentioned in Rule 53 of the Manipur (Hill Areas) District councils Rules, 1972. 3. Application of the Rules under rule 53 (Conditions of service of officers and other employees)- (i) Save as otherwise provided by or under this rule, this rule shall apply to all persons appointed to services or posts in connection with the affairs of the Manipur (Hill Areas) District Councils and which are under the rule-making control of the Governor of Manipur. (ii) These rules shall not apply to:- (a) persons not in whole in time employment; (b) persons paid otherwise then on a monthly basis including those paid at piece rate basis; (c) persons employed on contract except when the contract provides otherwise; (d) persons paid from contingencies; (e) persons re-employed after retirement; and (f) persons specially excluded wholly or in part by the Governor from the operation of these rules. N. LUIKHAM Commissioner (Hills), Government of Manipur." 7. By the said Amendment Rules, 1991, the word "pension" was inserted after the words "subsistence grant" mentioned in Rule 53 of the Manipur (Hill Areas) District Council Rules, 1972. As the said Amendment Rules, 1991 was come into force on 01.7.1991, the officers of the District Council are entitled to pension with effect from 01.7.1991. By another notification being No. CHA/79/83(Ptr), Imphal the 24th October, 1991, the Governor of Manipur was pleased to order adoption of the Manipur Civil Service (Pension) Rules, 1977 and its amendment from time to time (including the decision-taken by the Government of Manipur) was also the operation of the said rules within the District Councils of Manipur and that notification dated 24th October, 1991 shall make effective from 01.7.1991. The said Notification dated 24th October, 1991, reads as follows:- "(EMBLEM) EXTRAORDINARY PUBLISHED BY AUTHORITY No. 534 Imphal, Tuesday, October 29, 1991 (Kartika 7, 1913) GOVERNMENT OF MANIPUR SECRETARIAT: HILL COMMISSIONER'S DEPARTMENT NOTIFICATION Imphal, the 24th October, 1991 No. CHA/79/83(Pt- I) - The Governor of Manipur is pleased to order the adoption of the Manipur Civil Service (Pension) Rules, 1977 and its amendments from time to time (including the decision taken by the Government of Manipur) is the operation of the said rules within the District Councils of Manipur. This order takes effect from 1st July, 1991. By order etc., N. LUIKHAM Commissioner (Hills), Government of Manipur" 8. The Governor of Manipur, again, was pleased to order vide notification dated 19th August, 2006, that the said notification dated 24th October, 1991 for adoption of the CCS (Pension) Rules/Manipur Civil Service (Pension) Rules, 1977 for the district councils employees and the said notification dated 9.7.1991 (quoted above) in respect of Manipur (Hill Areas) District Council (Amendment) Rules, 1991 will cease to be operative with effect from 28.02.2006. Again, the Governor of Manipur was pleased to make a rule called the "Manipur (Hill Areas) District Council (Amendment) Rules, 2006, which was operative from 28th February, 2006 vide Notification No. CHA/79/83-Pt. I, Imphal, the 22nd August, 2006. Under the said Amendment Rules, 2006, the word "Pension" was inserted after the words "subsistence grant" mentioned in Rule 53 of the Rules, 1972. From a conjoint reading of the said notifications dated 19th August, 2006 and 22nd August, 2006, it is clear that on the very day i.e. 28.02.2006, the Government of Manipur withdraw the benefit of pension under the rules from the officers of the District Councils, the Government again by the said notification dated 22nd August, 2006 allowed the officers of the District Councils to enjoy pension. For easy reference, the said notification dated 19.8.2006 (Annexure-A/17 to the writ petition) and also the notification dated 22.8.2006 (Annexure-A/18 to the writ petition) are quoted hereunder:- "Annexure-A/17 MANIPUR GAZETTE EXTRAORDINARY PUBLISHED BY AUTHORITY No. 190 Imphal, Wednesday, August 30, 2006 (Bhadra 8, 1928) GOVERNMENT OF MANIPUR SECRETARIAT: HILL COMMISSIONER'S DEPARTMENT NOTIFICATION Imphal, the 19th August, 2006 No. CHA/79/83 Pt. I - Whereas the Cabinet has decided on 28.02.2006 that the employees of the District Councils Manipur shall be provided pensionary benefits with prospective effect. And, whereas the Cabinet in a further meeting on 17.08.2006 has decided to supersede /abrogate. (i) The notification dated 24.10.91 in respect of the adoption of CSS(Pension) Rules for District Council employees and (ii) The notification dated 09.07.91 in respect of Manipur (Hill Areas) District Council (Amendment) Rules, 1991 providing for pensionary benefits to District Council employees w.e.f. 01.07.91. Now, the Governor of Manipur is pleased to order that the Cabinet's decision taken on 26.06.91 and the notification thereunder issued as above will cease to be operative with effect from 28.02.2006. By order & in the name of the Governor, P.C. LAWMKIUNGA Principal Secretary (Hills), Government of Manipur" "Annexure-A/18 MANIPUR GAZETTE PUBLISHED BY AUTHORITY No. 189 Imphal, Tuesday, August 29, 2006 (Bhadra 7, 1928) GOVERNMENT OF MANIPUR SECRETARIAT: HILL COMMISSIONER'S DEPARTMENT NOTIFICATION Imphal, the 22nd August, 2006 No. CHA/79/83-Pt-I In exercise of the powers conferred by Section 51(2)(IV) of the Manipur (Hill Areas) District Council Act, 1971 the Governor of Manipur is pleased to make hereby the following rules to amend the Manipur (Hill Areas) District Councils Rules, 1972. 1. 1. Short title and commencement:- (a) This rule may be called the Manipur (Hill Areas) District Council (Amendment) Rules, 2006. (b) This rule shall be deemed to have come into force on the 28th February, 2006. 2. The word "pension" shall be inserted after the words 'subsistence grant' mentioned in Rule 53 of the Rules, 1972. 3. Application of the Rules under rule 53 (Conditions of service of officers and other employees)- (i) Save as otherwise provided by or under this rule, this rule shall apply to all persons appointed to services or posts in connection with the affairs of the Manipur (Hill Areas) District Councils and which are under the rulemaking control of the Governor of Manipur. (ii) These rules shall not apply to:- (g) persons not in whole in time employment; (h) persons paid otherwise then on a monthly basis including those paid at piece rate basis; (i) persons employed on contract except when the contract provides otherwise; (j) persons paid from contingencies; (k) persons re-employed after retirement; and (l) persons specially excluded wholly or in part by the Governor from the operation of these rules. P.C. LAWMKIUNGA Principal Secretary to the Government of Manipur" 9. Even though the petitioner's husband is entitled to pension and family pension to the petitioner's husband under the said Rules, neither the petitioner's husband enjoyed the pension nor the petitioner is allowed to enjoy the family pension. Therefore, the petitioner issued the legal notice dated 2nd January, 2007 demanding pension and family pension to the State of Manipur through the Chief Secretary, Government of Manipur and the Commissioner (Hills)/Principal Secretary (Hills), Government of Manipur. In reply to the said legal notice, the Under Secretary (Hills), Government of Manipur, wrote a letter being No. 1/33/2006-HQ/CHA dated Imphal, the 2nd February, 2007 to the petitioner's advocate that the Government of Manipur had agreed to extend the pensionary benefits to the employees of the Autonomous District Councils w.e.f. 28.02.2006. However, the question of coverage of those who retired before 28.02.2006 is still under consideration of the Government and as such, there is no question of non-payment of pension and other benefits to the deceased District Council employee i.e. late R. Rothanga (late husband of the petitioner). Hence, the present writ petition. 10. However, the question of coverage of those who retired before 28.02.2006 is still under consideration of the Government and as such, there is no question of non-payment of pension and other benefits to the deceased District Council employee i.e. late R. Rothanga (late husband of the petitioner). Hence, the present writ petition. 10. The main contesting respondents i.e. No. 1 and 2 filed affidavit-in-opposition wherein the respondents did not deny that the employees of the District Councils were entitled to pensionary benefits under the said notifications dated 09.7.1991 and 2410.1994 but the case of the respondent in their affidavit-in-opposition was that even though the administrative department has already agreed to extend the pensionary benefits to the employees of the Autonomous District Councils, pensionary benefits could not yet be implemented as the extension of pensionary benefits has a great financial involvement. 11. It is also stated in the affidavit-in-opposition that the said notification dated 18.8.2006 under which the pensionary benefits had been granted to the employees of the District Councils had been withdrawn w.e.f. 28.02.2006 and from the very day of withdrawal of the pensionary benefits i.e. on 28.02.2006, by a notification dated 22. 8.2006 again extended pensionary benefits to the employees of the District Councils which is still valid and as such, there is nothing wrong in informing the petitioner's advocate vide said letter dated 02.02.2007 that the question of coverage of those employees of the District Council, who retired and died before 28.02.2006 is still under consideration of the Government and as such, there is no question of non-payment of pension and other benefits to the District Council employee i.e. late R. Rothanga. 12. From the affidavit-in-opposition filed by the respondents No. 1 and 2, it is clear that it is the case of the respondents No. 1 and 2 that there is no question of non-payment of pension and other benefits to the deceased District Council employee, i.e. late R. Rothanga (husband of the writ petitioner) and that as there is great financial involvement in the extension of pensionary benefits to the employees of the District Councils, it requires a long procedure with the Finance Department, Government of Manipur and the Accountant General Office, Manipur. 13. A Constitution bench of the Hon'ble Apex Court in Deokinandan Prasad Vs. State of Bihar & Ors. 13. A Constitution bench of the Hon'ble Apex Court in Deokinandan Prasad Vs. State of Bihar & Ors. ( AIR 1971 SC 1409 ) held that pension is not a bounty payable on the sweet-will and pleasure of the Government; and on the other hand, the right to pension is a valuable right vesting in a Government servant and right to receive pension is a property under Article 31(1) and by a mere executive order, the State has no power to withhold the same. The relevant portion of the Para. Nos. 32, 33 and 34 of the AIR in Deokinandan Prasad (supra) read as follows:- "32.............................................................................But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet-will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a Government servant. 33. This Court in State of Madhya Pradesh v. Ranojirao Shinde, 1968-3 SCR 489, ( AIR 1968 SC 1053 ) had to consider the question whether a "cash grant" is "property" within the meaning of that expression in Articles 10(1)(f) and 31 (1) of the Constitution. This Court held that it was property observing "it is obvious that a right to sum of money is property." 34. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property raider Article19(1)(f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f), 31(1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pensions Act (Act 23 of 1871) there is a bar against a civil Court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law." 14. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law." 14. The ratio laid down in Deokinandan Prasad (supra) is also followed by a Constitution Bench of the Hon'ble Apex Court in D.S. Nakara & Ors; Vs. Union of India, (1983) 1 SCC 305 . Para Nos. 19, 20 and 22 of the SCC in D.S. Nakara (supra) read as follows:- "19. What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition. 20. The antiquated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar (1971 Supp. SCR 634 (1971) 2 SCC 330 : AIR 1971 SC 1409 (1971) 1 LLJ 557 ) wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh (1976) 3 SCR 360 : (1976)2 SCC 1 : 1976 SCC (L&S) 172 : AIR 1976 SC 667 . 22. This view was reaffirmed in State of Punjab v. Iqbal Singh (1976) 3 SCR 360 : (1976)2 SCC 1 : 1976 SCC (L&S) 172 : AIR 1976 SC 667 . 22. In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability, State obligation to provide security in old age, an escape from undeserved want was recognized and as a first step pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The quid pro quo was that when the employee was physically and mentally alert, he rendered unto master the best expecting him to look after him in the fall of life. A retirement system therefore exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, everyone who qualifies for normal retirement receives the same amount (see Retirement Systems for Public Employees by Bleankney, p.33)." 15. The Hon'ble Apex Court, by following the ratio laid down in D.S. Nakara (supra) in the matter of family pension in Smt. Poonamai etc. etc. Vs. Union of India & Ors. ( AIR 1985 SC 1196 ) held (para No. 7 of AIR) that:- "7.............................................. .............................................. 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. In fact we look upon pension not merely as statutory right but as the fulfillment 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 underserved want. Relevant rules merely make effective the constitutional mandate. That is how pension has been looked upon in D.S. Nakara's judgment. At the hearing of this group of matters we pointed out that since the family pension scheme has become non-contributory effective from Sept. 22, 1977 any attempt at denying its benefits to widows and dependents of Government servants who had not taken advantage of the 1964 liberalization scheme by making or agreeing to make necessary contribution would be denial of equality to person similarly situated and hence violative of Art.14. If widows and dependents of deceased Government servants since after Sept. 22, 1977 any attempt at denying its benefits to widows and dependents of Government servants who had not taken advantage of the 1964 liberalization scheme by making or agreeing to make necessary contribution would be denial of equality to person similarly situated and hence violative of Art.14. If widows and dependents of deceased Government servants since after Sept. 22, 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. When this glaring dissimilar treatment emerged in the course of hearing in the Court, Mr. B. Dutta learned counsel appearing for the Union of India requested for a short adjournment to take further instructions." 16. The ratio laid down in the celebrated case i.e. Nakara (supra) is again followed in the State of W.B. Vs. Haresh C. Banerjee & Ors. (2006) 7 SCC 651 and held (para Nos. 4, 5, 6 of the SCC) that:- "4. Pension is not a bounty payable on the sweet will and the pleasure of the Government and to receive pension is a valuable right of a government servant is a well-settled legal proposition. The question in the present case, however, is not about the deprivation of the said right by the Government by an executive order but is about the constitutional validity of Rule 10(1) providing for withholding of pension or part thereof in certain cases. 5. Articles 19(1)(f) and 31(1) have been re-pealed by the Constitution (Forty-fourth Amendment) Act, 1978 w.e.f. 20.06.1979. The right to property is no longer a fundamental right. It is now a constitutional right, as provided in Article 300-A of the Constitution. Right to receive pension was a fundamental right at the time of framing of the Rules in 1971. The question is whether a rule framed under proviso to Article 309 of the Constitution providing for withholding of the pension would ipso facto be ultra vires, being violative of Article 19(1)(f) as it stood in 1971 when the Rules were framed. 6. The question is whether a rule framed under proviso to Article 309 of the Constitution providing for withholding of the pension would ipso facto be ultra vires, being violative of Article 19(1)(f) as it stood in 1971 when the Rules were framed. 6. The High Court has, in the impugned judgment, made reference to a decision of this Court in Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330 ) for coming to the conclusion that the rule in question is ultra vires. In the said case, this Court held that the right to receive pension was wrongly withheld by an executive order. The judgment in Deokinandan Prasad case (1971) 2 SCC 330 ) in fact lends support to the vires of the rule since it was held in that case that an employee can be deprived of the pension by an authority of law. That authority, in the present case, is contained in the Rules [Rule 10(1)], that were framed providing for withholding of the pension." 17. While construing the said notification dated 19.8.2006 (quoted above) and the notification dated 22.8.2006 (quoted above), it is to be remembered that right accrued cannot be taken away by retrospective amendment and also that rule which seeks to reverse from an anterior date, the benefit which has been granted or availed e.g. promotion or pay scale can be assailed as being violative of Article 14 and 16 of the Constitution of India. The Hon'ble Apex Court in Chairman, Railway Board & Ors. Vs. C.R. Rangadhamaih & Ors. (1997) 6 SCC 623 held that reduction of running allowance from 75% to 45% and to 55% in the pension with retrospective effect is violative of Articles 14 and 16of the Constitution of India and also that merely because the employees (respondents) were not paid their pension on the basis of the earlier notification would not mean that pension payable to them are not required to be computed in accordance with the earlier rules. 18. 18. In the present case in hand, merely because, the petitioner's husband (late R. Rothanga) and petitioner did not enjoy pensionary benefits under the said earlier notification dated 24.10.1991 and 9.7.1991, they cannot be denied to enjoy pension because of the subsequent notification dated 19.8.2006, which is made operative with effect from 28.02.2006 and from this date again, vide notification dated 28.02.2006, the petitioner and petitioner's husband are again entitled to pensionary benefits. Para Nos. 20, 24, 25, 29, 30 in Chairman, Railway Board (supra) read as follows:- "20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively. 24. In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior dated and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution, We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon, B.S. Yadav and Raman Lal Keshav Lal Soni. 25. In these cases we are concerned with the pension payable to the employee after their retirement. The respondents were no longer in service on the date of issuance of the impugned notifications. The amendments in the rules are not restricted in their application in futuro. 25. In these cases we are concerned with the pension payable to the employee after their retirement. The respondents were no longer in service on the date of issuance of the impugned notifications. The amendments in the rules are not restricted in their application in futuro. The amendments apply to employees who had already retired and were no longer were no longer in service on the date the impugned notifications were issued. 29. Rule 2301 of the Indian Railway Establishment Code incorporates this principle. It lays down: "A pensionable railway servant's claim to pension is regulated by the rules in force at the time when he resigns or is discharged from the service of Government." 30. The respondents in these cases are employees who had retired after 1.1.1973 and before 5.12.1988. As per Rule 2301 of the Indian Railway Establishment Code they are entitled to have their pension computed in accordance with Rule 2544 as it stood at the time of their retirement. At that time the said rule prescribed that running allowance limited to a maximum of 75% of the other emoluments should be taken into account for the purpose of calculation of average emoluments for computation of pension and other retiral benefits. The said right of the respondent-employees to have their pension computed on the basis of their average emoluments being thus calculated is being taken away by the amendments introduced in Rule 2544 by the impugned notifications dated 5.12.1988 inasmuch as the maximum limit has been reduced from 75% to 45% for the period from 1.1.1973 to 31.3.1979 and to 55% from 1.4.1979 onwards. As a result the amount of pension payable to the respondents in accordance with the rules which were in force at the time of their retirement has been reduced." 19. Mr. L. Shyamkishore, learned senior counsel appearing for the respondents No. 1 and 2 at the last made a faint attempt that in case the present writ petition is allowed by allowing the writ petitioner to enjoy family pension, a floodgate will be opened and all the employees of the District Councils, who are entitled to pensionary benefits under the said notifications will claim for the same reliefs. It is fairly well settled that only because floodgates of cases will be opened, by itself cannot be a ground to close the doors of the Court of justice. It is fairly well settled that only because floodgates of cases will be opened, by itself cannot be a ground to close the doors of the Court of justice. The doors of the Court must be kept open. (Guruvayoor Devaswom Managing Committee & Anr. Vs. C.K. Rajan & Ors. (2003) 7 SCC 564) 20. The Hon'ble Apex Court in Guruvayoor Devaswom Managing Committee & Anr. Vs. C.K. Rajan & Ors. (2003) 7 SCC 564 held (para No. 69 of the SCC) that it is trite that only because floodgates of cases will be opened, by itself may not be (sic a) ground to close the doors of Courts of justice. The doors of the Courts must be kept open but the Court cannot shut its eyes to the ground realities while entertaining a public interest litigation. 21. The Hon'ble Apex Court reiterated the same view in Coal India Ltd. & Ors. Vs. Saroj Kumar Mishra (2007) 9 SCC 625 . The ratio laid down in Coal India Ltd. (supra) is also followed in N. Kannadasan Vs. Ajoy Khose & Ors. 2009 (5) Supreme 4 wherein Hon'ble Apex Court held (para Nos. 137, 138, 139 of the Supreme) that:- "137. Mr. Venugopal would submit that such an interpretation would open a floodgate. We do not think so. We even wish no occasion like the present one arises in future before the Superior Courts for their consideration. 138. Even otherwise, the floodgate argument does not appeal to us. 139. In Coal India Ltd. & Others Vs. Saroj Kumar Mishra, [ (2007) 9 SCC 625 ], this Court held: "19. The floodgate argument also does not appeal to us. The same appears to be an argument of desperation. Only because there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. This Court is bound to determine the respective rights of the parties. [Zee Telefilms Ltd. v. Union of India and Guruvayoor Devawom Managing Committee v. C.K. Rajan]." 22. Keeping in view of the ratio laid down by the Hon'ble Apex Court in the cases discussed above, this Court is of the considered view that allowing the relief in the present writ petition will open a floodgate of cases, the submission of Mr. L. Shyamkishore, learned Sr. Advocate, has no legs to stand and accordingly, not accepted. Keeping in view of the ratio laid down by the Hon'ble Apex Court in the cases discussed above, this Court is of the considered view that allowing the relief in the present writ petition will open a floodgate of cases, the submission of Mr. L. Shyamkishore, learned Sr. Advocate, has no legs to stand and accordingly, not accepted. For the foregoing discussions, this Court is of the firm view that the petitioner's husband (late R. Rothanga) shall be entitled to enjoy pension from 31.12.1997 (date of retirement on superannuation) till he died on 24.10.2004 and thereafter, the petitioner (wife of late R. Rothanga) shall be entitled to enjoy family pension and ordered accordingly. In other works, respondents are directed to release arrear pension and family pension respectively and shall continue to pay family pension to the petitioner and the whole exercise for releasing arrear pensionary benefits and current pension (family pension) to the petitioner should be completed within a period of four months from the date of receipt of a certified copy of this order.