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2016 DIGILAW 613 (GAU)

KIRENPENLA v. STATE OF NAGALAND

2016-07-12

L.S.JAMIR

body2016
ORDER : L.S. JAMIR, J. 1. The petitioners son Lt.Tiamongba Ao while serving as Constable in C Coy 4BN NAP Thizama, Kohima Nagaland was detailed for protection of Rangapahar Reserve Forest, Dimapur. On the evening of 23/2/1989, the petitioners son was run over and killed by one of the logger truck bearing registration No.NLH-1769 (Tata). After the death of the petitioners son, the petitioner applied for family pension and other service benefits. However, the same was not considered by the respondents therefore, the petitioner filed W.P.(C) No.179(K)/2008 before this Court and by judgment and order dated 12/10/2009, the same was disposed of with a direction that the petitioner shall approach the concerned authority by filing a fresh representation along with necessary documents for settlement of family pension of the deceased son. It was also directed that the respondents shall settle the family pension relating to the death of the petitioners son within a period of 6 months from the date of the receipt of the said representation to be filed by the petitioner. Accordingly, the petitioner filed a representation before the respondent Nos. 6 and 8 on 17/11/2009. The State respondents being aggrieved with the judgment dated 12/10/2009 passed in W.P.(C).No. 179(K)/200S filed a Civil Review Petition No.2(K)/2010 which was disposed of by this Court on 15/5/2012 by setting aside the direction to the respondents to settle the claim of the family pension of the petitioner as directed in the order dated 12/10/2009 passed in W.P.(C) No. 179(K)/2008. Thereafter, the petitioner also served a notice dated 18/5/2012 before the respondent No.6. As there was no compliance by the respondents to this Courts order, the petitioner had filed Contempt Petition No.28(K)/2012. During the pendency of the said contempt petition, the respondents issued a memorandum dated 15/3/2013 stating that the petitioner is not entitled to grant of Dependent Family Pension since the scheme for grant of family pension to dependent came only into effect from 1/1/1998. In that view of the matter, the contempt petition No.28(K)/2012 was closed by order dated 19/6/2013. Being aggrieved with the action of the respondents, the petitioner has filed the present writ petition with the following prayers: "In the premises, it is most respectfully prayed that your Lordships may graciously be pleased to admit this petition, call for the records, issue a Rule calling upon the respondents to show cause as to why; 1. Being aggrieved with the action of the respondents, the petitioner has filed the present writ petition with the following prayers: "In the premises, it is most respectfully prayed that your Lordships may graciously be pleased to admit this petition, call for the records, issue a Rule calling upon the respondents to show cause as to why; 1. Impugned Office Memorandum No.FTN/ESTT-11/2006, dated 22/4/2008 passed by the Principal Secretary & Finance Commissioner, to the Government of Nagaland, Finance Department, Establishment Branch, payment of family pension to wholly dependent parents was made admissible in respect of Government employees who died on or after 1/1/1998. 2. The impugned Office Memorandum No.POL/ESTT-8/18/2008 dated 15/3/2013 passed by the Home Commissioner to the Government of Nagaland, Home Department, Police Establishment Branch, disagreeing awarding of family pension to the petitioner. 3. The impugned office letter No.PHQ(B-II)HC/21/2008/1 350, dated 15/6/2013 written by the Inspector General of Police (Hq) reiterating that the respondents/department has not wilfully disobeying the order of the Hon’ble Court should not be quashed and set aside and; Direct the respondent authority to pay extraordinary family pension and ex gratia grant in respect of deceased CN.No. 43381 Tiamongba AO to the petitioners as per the Rules with interest and cost for proceedings." 2. Heard Mr. Imti Longchar, learned counsel appearing for the petitioner as well as Ms. Lucy, learned Sr, Government Advocate for the State respondents and Mr. Yangerwati, learned Standing Counsel, A.G. Nagaland/respondent No.8. 3. Mr. Imti Longchar, learned counsel for the petitioner submits that the respondents had issued an Office Memorandum dated 22/4/2008 which provides that the Government had taken a decision that with effect from 1/1/1998, the definition of family, for the purpose of grant of family pension shall also include parents who were wholly dependent on the Government servant when he/she was alive provided the deceased employee had left behind neither a widow nor a child. The Office Memorandum further provides that the order shall be applicable in respect of Government employees who died on or after 1/1/1998. It is submitted that by introducing the cut off date of 1/1/1998 the petitioner is made ineligible to receive family pension. Further, the introduction of the cut off date of 1/1/1998 amounts to class legislation of the homogeneous group of retired employees who died in harness. It is submitted that by introducing the cut off date of 1/1/1998 the petitioner is made ineligible to receive family pension. Further, the introduction of the cut off date of 1/1/1998 amounts to class legislation of the homogeneous group of retired employees who died in harness. It is submitted that the same attracts Article 14 of the Constitution which forbids class legislation but permits reasonable classification and therefore, the Office Memorandum dated 22/4/2008 requires interference. The learned counsel for the petitioner also places reliance in the case of D.S. Nakara and others v. Union of India, reported in AIR 1983 SC 130 and also in the case of Gotimayum Ongbiekashini Devi v. Commissioner/Secretary, Arts & Culture, Govt. of Manipur & Ors., reported in 2005 (2) GLT 173. He submits that the case of the petitioner is squarely covered by the aforesaid two authorities passed by the Supreme Court as well as this Court and therefore, the Office Memorandum dated 22/4/2008 is not tenable in law and therefore, the same should be set aside and quashed. 4. Ms. Lucy, learned Sr. Government Advocate appearing on behalf of the State respondents submits that the petitioners son was detailed to Dimapur to protect the Rangapahar Reserve Forest as an emergency duty. On 22/3/1989 at about 1800 hrs roll call was conducted and thereafter, the petitioners deceased son had sneaked out of the camp without obtaining permission from the competent authority when he was run over by a truck at a place about 3 Kms. away from the camp. Therefore, when the petitioners son died he was found not to be on bona fide Government duty and therefore, the prayer for grant of extraordinary pension was not granted. She further submits that on 17/10/2007, the Office of the A.G made a reference addressed to the Secretary, Personnel & Administrative Reforms with copy of the Financial Commissioner seeking clarification as to whether, parents of deceased Government servant who expired prior to 1/1/1998 will be eligible for family pension as was made effective by Government of India. The Government of Nagaland follows the pension provisions of the Central Government. Orders issued by the Central Government are not automatically applicable to State Government employees unless officially adopted by a notification. The State Government decided to implement the recommendation of the fifth Central Pay Commission w.e.f. 1/6/1998 for notional purposes, and allow actual cash benefits w.e.f. 1/4/2000. The Government of Nagaland follows the pension provisions of the Central Government. Orders issued by the Central Government are not automatically applicable to State Government employees unless officially adopted by a notification. The State Government decided to implement the recommendation of the fifth Central Pay Commission w.e.f. 1/6/1998 for notional purposes, and allow actual cash benefits w.e.f. 1/4/2000. However, the adoption of revision of pension was made w.e.f. 1/1/1998 prior to the effective date of adoption of the fifth pay commission report. She also further submits that the said cut off date on 1/1/1998 was taken as per the reference made by the Accountant General, Nagaland and no other reasons are recorded as to why this date should be adopted. She however, submits that the Office Memorandum has been issued in terms of the Central Government directives and therefore, the cut off date of 1/1/1998 has been inserted in the Office Memorandum dated 22/4/2008. In that view of the matter, she submits that no interference is required in the said Office Memorandum. 5. Mr. Yangerwati, learned Standing counsel for AG submits that the office of the AG is only a pension authorisation agency that authorizes pension as per the CCS Pension Rules in respect of those Government employees whose cases are forwarded by the concerned Department for authorisation of the same. It is also submitted that the office of AG has no authority to sanction pension and that it is the concerned Department/State Government that sanction pension. In the present case, the concerned Department has not issued any order sanctioning the pension on behalf of the petitioners deceased son and therefore, the office of the AG has nothing more to say in the matter. 6. I have considered the submissions forwarded by the learned counsel appearing for the parties. 7. Considering that the present writ petition has been filed challenging the Office Memorandum dated 22/4/2008, this Court has also requisitioned the assistance of Mr. K. Serna, learned Addl. Advocate General who has fairly submitted that there can be no class legislation as projected in the Office Memorandum dated 22/4/2008 in terms of D.S. Nakara and Ors. v. Union of India, reported in AIR 1983 SC 130 . 8. A perusal of the Office Memorandum dated 22/4/2008 being under challenge is reproduced herein below: "GOVERNMENT OF NAGALAND FINANCE DEPARTMENT ESTABLISHMENT BRANCH. NO. v. Union of India, reported in AIR 1983 SC 130 . 8. A perusal of the Office Memorandum dated 22/4/2008 being under challenge is reproduced herein below: "GOVERNMENT OF NAGALAND FINANCE DEPARTMENT ESTABLISHMENT BRANCH. NO. FIN/ESTT-11/2006 Dated Kohima the 22nd April, 2008 OFFICE MEMORANDUM SUB: Admissibility of Family Pension to Wholly Dependent Parents of The Employees Under Govt. of Nagaland. The matter of admissibility of Family Pension to wholly dependent parents of deceased Govt, employees of Nagaland State, in the light of the Govt, of India decision on the subject, has been under examination of the Govt, for some time. Now, the Governor of Nagaland, after careful consideration, is pleased to decide that w.e.f 1.1.1998 the definition of Family, for the purpose of grant of Family Pension, shall also include parents who were wholly dependent on the Govt, servant when he/she was alive, provided the deceased employee had left behind neither a widow nor a child. The admissibility of Family Pension to wholly dependent parents shall further be subject to following conditions: (i) The parents were wholly dependent on the Govt, "servant when he/she was alive. (ii) The Govt, servant has not left behind a widow/widower, eligible son or daughter or a widowed/divorced daughter. (iii) The income of parents is not more than Rs.2,550/- per month. Production of requisite certificate in this regard shall be applicable for continuation of family pension. (iv) The parents are eligible for family pension only at the ordinary rate i.e. 30% of basic pay of the deceased employee. These orders shall be applicable in respect of Govt, employees who died on or after 1.1.1998. This O.M. is issued with the concurrence of the P & AR Department as conveyed vide letter No.PAR/PEN/15/2007 dated 2.4.2008. Sd/- (TOSHIAIER) Principal Secretary & Finance Commissioner." From a reading of the Office Memorandum dated 22/4/2008. it is clear that the State respondents had introduced a cut off dated of 1/1/1998 with regard to grant of family pension in respect of parents who are wholly dependent on the Government servant when he/she was alive provided that the deceased employee had left behind neither a widow or a child. 9. The respondent No.4 has filed affidavit-in-opposition. Therein at paragraph 6, the reason for introducing the cut off date 1/1/1998 has been explained. Accordingly, paragraph 6 of the said affidavit-in-opposition is also reproduced herein below: "6. 9. The respondent No.4 has filed affidavit-in-opposition. Therein at paragraph 6, the reason for introducing the cut off date 1/1/1998 has been explained. Accordingly, paragraph 6 of the said affidavit-in-opposition is also reproduced herein below: "6. That with regard to the statements made in paragraph 3 of the comments, it may be noted that this revision (sic) provisions was made as a part of implementation of the recommendations of the Fifth Central Pay Commission. The Fifth Pay Commission was implemented w.e.f. 01.01.1996 by the Central Government. While the Government of Nagaland follows the pension provisions of the Central Government, orders issued by the Central Government are not automatically applicable to State Government employees unless officially adopted by a notification. The State Government decided to implement the recommendations of the Fifth Central Pay Commission w.e.f. 01.06.1998 for notional purposes, and allow actual cash benefits w.e.f. 01.04.2000. However, the adoption of the above mentioned revision of pension was made w.e.f. 01.01.1998, prior to the effective date of adoption of the Fifth Pay Commission Report. This date was taken as per the reference made by the Accountant General, Nagaland, and no other reasons are recorded as to why this date should be adopted. However, it is the considered view of Finance Department that the decision of adopting effective date of 01.01.1998 was made in a fair and objective manner without prejudice to any individual, and that in such policy matters, it is neither possible nor desirable for the State Government to attempt to address all individual cases. 10. In the case of D.S. Nakara ( AIR 1983 SC 130 ) (supra), the Supreme Court has held as under: "65. That is the end of the journey. 10. In the case of D.S. Nakara ( AIR 1983 SC 130 ) (supra), the Supreme Court has held as under: "65. That is the end of the journey. With the expanding horizons of the socio-economic justice, the socialist republic and welfare State which we endeavour to set up and largely influenced by the fact that the old men who retired when emoluments were comparatively low and are exposed to vagaries of continuously rising prices, the falling value of the rupee consequent upon inflationary inputs, we are satisfied that by introducing an arbitrary eligibility criteria; being in service and retiring subsequent to the specified dale for being eligible for the liberalized pension scheme and thereby dividing a homogeneous class, the classification being not based on any discernible rational principle and having being found wholly unrelated to the objects sought to be achieved by grant of liberalized pension and the eligibility criteria devised being thoroughly arbitrary, we are of the view that the eligibility for liberalized pension scheme of being in service on the specified date and retiring subsequent to that date in impugned memoranda. Exhibits P-l and P-2, violates Article 14 and is unconstitutional and is struck down. Both the memoranda shall be enforced and implemented as read down as under: In other words, in Ext. P-1, the words : "that in respect of Government servants who were in service on the 31st March, 1979 and retiring from service on or after that date" and in the Exhibit P-2, the words: "the new rates of pension are effective from 1st April, 1979 and will be applicable to all service officers who became/become non-effective on or after that date." are unconstitutional and are struck down with this specification that the date mentioned therein will be relevant as being one from which the liberalized pension scheme becomes operative to all pensioners governed by 1972 Rules irrespective of the date of retirement. Omitting the unconstitutional part it is declared that all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalized pension scheme from the specified date, irrespective of the date of retirement. Arrears of pension prior to the specified date as per fresh computation is not admissible. But in the circumstances of the case, there will be no order as co cost." 11. Arrears of pension prior to the specified date as per fresh computation is not admissible. But in the circumstances of the case, there will be no order as co cost." 11. In a catena of cases it has been held by the Apex Court as well as this Court that pension is neither a bounty nor matter of grace depending on the sweet will of the employer and it creates a vested right to the retired employee and widow and minor of the retired employee. In the case of Smt.Poonamal etc. etc. v. Union of India and Ors., reported in AIR 1985 SC 1196 it has been held that classifications amongst the retired Government employee for the payment of family pension only to the effect that widow and minor children of those Government servants who died prior to 1961 were not eligible for the benefit of liberalized scheme and other class which was left out of the liberalization scheme was those Government servants who specifically opted out of the scheme of Family Pension Scheme, 1961 and any attempt at denying the benefit of family pension under the memorandum in question to widows and dependents of the 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 persons similarly situated and hence violative of Article 14 of the Constitution of India. 12. On consideration of the entire facts and circumstances of the case as well as the Office Memorandum dated 22/4/2008, this Court is of the considered opinion that the entitlement of family pension only to Government employee who retired or died in harness on or after 1/1/1998 will amount to class legislation of the homogeneous group of retired employee who died in harness which is forbidden by Article 14 of the Constitution of India. In that view of the matter, this Court is of the considered opinion that the Office Memorandum dated 22/4/2008 issued by the Government of Nagaland, Finance Department insofar as introduction of the cut off date of 1/1/1998 is bad in law. 13. It is undisputed that the petitioners deceased son was unmarried and had left no widow nor a child. The petitioner was also wholly dependent on her deceased son. The petitioner therefore shall be entitled to family pension w.e.f. 1/1/1998. 13. It is undisputed that the petitioners deceased son was unmarried and had left no widow nor a child. The petitioner was also wholly dependent on her deceased son. The petitioner therefore shall be entitled to family pension w.e.f. 1/1/1998. The respondents are now called upon to take up the case of the petitioner for grant of family pension in terms of the judgment and order passed by this Court today. 14. Writ petition is accordingly allowed. 15. No cost.