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2022 DIGILAW 72 (MEG)

Anindita Bhowmik v. State of Meghalaya

2022-04-04

SANJIB BANERJEE, W.DIENGDOH

body2022
JUDGMENT Sanjib Banerjee CJ. - The challenge here is to an order dated February 25, 2022 by which the appellant's writ petition has been dismissed on the ground that the appellant had no right to claim family pension. 2. The appellant's father, who was an employee under the State, retired from service on August 31, 1997 upon reaching the age of superannuation. The father continued to live till or about 2015. During the lifetime of the father, the younger brother of the appellant and the husband of the appellant expired in or about the year 2002 and, as a consequence, the appellant claimed to have become dependent on her father. Within a year of the father's death, the appellant's mother died in the year 2016. 3. As a dependent of her father at the time of her father's death, the appellant claimed to be entitled to family pension in accordance with the amended pension rules introduced in or about 2010 in the State. The writ petition was brought upon such claim being denied by the State. 4. The appellant first relies on an office memorandum of February 23, 2010 issued by the Finance (Pay Revision) Department of the State. Clause 2.1 of such memorandum has been placed for the present purpose: '2.1. These orders shall apply to all the State Government employees governed by the Meghalaya Civil Service (Pension) Rules, 1983 and the Meghalaya Civil Service (Commutation of Pension) Rules 1992. Save as otherwise provided in these orders, the revised provisions as per those orders shall apply to State Government employees who retire/die-in-harness on or after 1st January, 2007.' 5. The appellant next places the relevant provisions of the Meghalaya Civil Services (Pension) (Fifth Amendment) Rules, 2010 promulgated by a notification published on November 4, 2010. Rule 7 of such amended rules altered the definition of 'family' in the principal rules being the Meghalaya Civil Services (Pension) Rules, 1983. The appellant next places the relevant provisions of the Meghalaya Civil Services (Pension) (Fifth Amendment) Rules, 2010 promulgated by a notification published on November 4, 2010. Rule 7 of such amended rules altered the definition of 'family' in the principal rules being the Meghalaya Civil Services (Pension) Rules, 1983. In essence, the definition of family was altered to include 'son/daughter including widowed daughter up to the date of his/her marriage/remarriage or till the date he/she starts earning or till the age of twenty five years, whichever is earlier.' A second category was also included under such amended rule that provided for, inter alia, a widowed daughter, not covered by the first category, up to the date of marriage or remarriage or till the date when she starts earning or up to the date of death, whichever is earlier. 6. According to the appellant, she falls under the second category as she was a widow during the lifetime of her father, the original pensioner, and was dependent on her father. The appellant maintains that she has not remarried and that she has no earning or income of her own. 7. The said amended Pension Rules of 2010, in Rule 1(2) thereof, indicates the date on which they would come into effect. As in the notification of February 23, 2010 which preceded the making of the rules by way of the fifth amendment, the cut-off date was indicated to be January 1, 2007. In other words, the benefits under the amended Rules of 2010 would apply to such employees in State government service who retired on or subsequent to January 1, 2007. 8. The case made out by the appellant before the writ court was that the cut-off date was arbitrary and there was no basis indicated for such date being fixed and not any other. The appellant suggests that it is a random date which has been indicated as the effective date without any study or application of mind going into the same. 9. An alternative case is also made out by the appellant on the basis of Rule 5 of the principal Rules of 1983. The relevant rule, that provides for the regulation of claims to pension or family pension, in its initial clause, is the one that has been pressed into service by the appellant. Rule 5(1) of the Rules of 1983 provides as follows: '5(1). The relevant rule, that provides for the regulation of claims to pension or family pension, in its initial clause, is the one that has been pressed into service by the appellant. Rule 5(1) of the Rules of 1983 provides as follows: '5(1). Any claim to pension or family pension shall be regulated by the provisions of these rules in force at the time when a Government servant retires or is retired or is discharge or is allowed to resign from service or dies, as the case may be.' 10. The appellant asserts that since her claim to family pension, by virtue of Rule 5(1) of the principal Rules of 1983, arises, inter alia, upon the death of the concerned employee, in view of the use of the expression 'dies' together with a disjunctive 'or' in the provision, the appellant should be found to be entitled to the benefit under the amended Rules of 2010 by virtue of the principal Rules of 1983 and notwithstanding the effective date indicated in Rule 1(2) of the amended Rules of 2010. 11. As for the principal contention of the appellant, there does not appear to be any basis for complaint. The rights of a government servant, qua post-retirement benefits, are as applicable and in place at the date of such employee's severance from service, whether on account of superannuation or voluntary retirement or resignation or discharge other than on disciplinary grounds or death. The benefits that such person or his permitted heirs or relatives would be entitled to, crystalise on the basis of the rules in place as on the date of severance. No benefit which has accrued, or is due to accrue, to the concerned retired employee or to any permitted heirs or relatives of the concerned retired employee as per the rules prevalent as on the date of severance of such employee from service may be curbed or curtailed in any manner. 12. However, the corollary would not apply; in the sense that if any further benefit is conferred on the retired employees in respect of their pension or emoluments or the like, an employee who has retired prior to the amendment of the rules would not, ipso facto, be entitled thereto, unless the benefit is expressly extended to the case of such employee. In other words, the State has the absolute discretion to confer the additional pensionary benefits to retired employees or to the permitted heirs or relatives of the retired employees with reference to a specified date of retirement. The State has the complete freedom to make the operation of such amended rules conferring the additional benefits prospective or retrospective. It is a matter of policy and, ordinarily, may not be justiciable. 13. In this case, retrospective effect has been given to the Fifth Amendment Rules by which additional pensionary benefits were conferred on the retired employees or their permitted heirs or relatives. However, the State extended the benefits retrospectively by making it applicable with effect from January 1, 2007. That would imply that all the State government employees who retired on or after January 1, 2007, including their permitted heirs or relatives, would be entitled to the additional benefits conferred by the Fifth Amendment Rules, notwithstanding such benefit not being available at the time of severance from service of the concerned employee. 14. Ordinarily, the discretion of the State in such regard cannot be called into question in judicial review unless a case of egregious unreasonableness in the classification is made out or the cut-off date is shown to be arbitrary or designed to benefit a class of persons or to prejudice some other class. Indeed, the principle in such a case is that it is the State's prerogative to extend the benefits retrospectively or prospectively. If the benefits are extended retrospectively and the cut-off date is fixed, say, three to five years prior to the date on which the amended rules are notified, there can be no manner of grievance. 15. To repeat, all employees who retired prior to the pension rules being amended would otherwise not be entitled to the benefits conferred by the amendment. If, however, the State in its discretion confers the benefits on employees or their families in cases where they had retired some two to five years before the date of the notification, the benevolence of the State in such regard cannot be questioned without specific grounds of irrationality or unreasonableness being demonstrated. The appellant's case is unfortunate and the Court may sympathise with the appellant; but the appellant did not carry a justiciable cause for any right to be enforced in the extraordinary jurisdiction under Article 226 of the Constitution. 16. The appellant's case is unfortunate and the Court may sympathise with the appellant; but the appellant did not carry a justiciable cause for any right to be enforced in the extraordinary jurisdiction under Article 226 of the Constitution. 16. As to the alternative ground which has been urged, pertaining to Rule 5(1) of the principal Rules of 1983, it must be said that there is no merit therein. The word 'dies' must be read ejusdem generis with the other similar situations of severance from service that are referred to in the preceding words in the same sentence. In other words, the word 'dies' must be read as 'dies in harness' which would be comparable to the similar instances of severance from service indicated by the previous words in the sentence as 'retired', 'discharged' and 'resign from service'. 17. Thus, the post-retirement death of an erstwhile employee will be of no relevance in this case as the death that is referred to in Rule 5(1) only covers the death in harness and the resultant severance from service. 18. By the judgment and order impugned, the writ court found that no case of unreasonable classification had been made out. The writ court also referred to several judgments that were cited to arrive at an appropriate conclusion that the choice of the cut-off date was not violative of Article 14 of the Constitution. 19. Article 14 of the Constitution, in its essence, prohibits dissimilar treatment of similarly placed persons. However, when dissimilar treatment is extended to a group of persons who have been reasonably classified as a homogenous group deserving such treatment, that would not fall foul of the high ideals of Article 14 of the Constitution. In the present case, the State has gone back a few years to include the retirees from January 1, 2007 and their permitted heirs and relatives to be entitled to the benefits conferred by an amendment of the year 2010. The State was not obliged to extend the benefits to the past retirees, but upon the State so doing, there does not appear to be any arbitrariness on its part. At any rate, no arbitrariness in such regard has been demonstrated by the appellant. 20. Accordingly, the judgment and order impugned dated February 25, 2022 do not call for any interference. 21. WA No.8 of 2022 is dismissed. 22. At any rate, no arbitrariness in such regard has been demonstrated by the appellant. 20. Accordingly, the judgment and order impugned dated February 25, 2022 do not call for any interference. 21. WA No.8 of 2022 is dismissed. 22. There will, however, be no order as to costs.