Ghulam Qadir & Ors vs State & Ors on 1 October, 2019

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Jammu & Kashmir High Court

Ghulam Qadir & Ors vs State & Ors on 1 October, 2019

01. Petitioner Nos. 1 and 2 are parents of Late Mohammad Iqbal, who was Constable No. 1186/R in Jammu and Kashmir Police, whereas petitioner Nos. 3 to 6 are his sisters. Constable Mohammad Iqbal was killed allegedly by the militants while in action. The case of the petitioners is that they were wholly dependent upon the income of the deceased and therefore, are entitled to the pension, gratuity and other retiral benefits including Provident Fund, as petitioner Nos. 1 & 2 are old aged parents and petitioner Nos. 3 to 6 are school going sisters of the deceased, thus, dependent upon him. Petitioners claimed that they have applied for grant of ex-gratia amount of Rs. 6.00 Lakhs pension, gratuity and leave encashment but they have been denied the same by the respondents.

2 OWP No. 802/2003

02. The main grounds of challenge are:-

a) That Regulation 240-E of the Jammu and Kashmir Civil Services Regulations is liable to be quashed being ultra vires of the Constitution as it treats equals as un-equals and is, thus, discriminatory for the purpose of payment of gratuity and other retiral benefits.

b) That the term „family‟ for the purpose of Article 240-B as defined in the Regulation 240-C(ii) and the procedure for disbursement is prescribed in Regulation 240-E.

c) That it regulates section 240-A of the Jammu and Kashmir Civil Services Regulations Act which provides for distribution of ex-gratia grant to the beneficiaries and annexure-C issued by the Director General of Police dated 18-12-2001. The respondents have processed the case of the petitioner for pension, gratuity and ex-gratia only in favor of respondent No. 5 i.e widow of the diseased excluding the petitioners.

03. Thus the main relief claimed in this petition is:-

I. That Article 240-E of the Jammu and Kashmir Civil Services Regulations be quashed in so far as it discriminates between the family members from the widow of the diseased by issue of a writ of certiorari.

II. That Circular No. AIG(W-EGR/107/2001-57104-205 dated 18-12- 2001 issued by the respondent No. 3 be quashed as it deprives the petitioner from claiming ex-gratia relief in on account of death of their son.

III. Mandamus commanding the respondents to pay to the petitioners the ex-gratia relief, pension and other monetary benefits. 3 OWP No. 802/2003

04. In the counter filed by the official respondents, it is stated that ex-gratia relief was paid to the widow of the deceased as per the Government Order No. 723- GR(GAD) of 1990 dated 10.09.1986 and circular dated 18.12.2001. After this, she submitted an affidavit that she would stay with the family of the deceased and would not re-marry.

05. The respondents have objected to the challenge to the pension rules mainly on the ground that these are broadly patterned on the Central Government Rules and not constitutionally valid. The main question for consideration is whether parents are to be treated equally with the widow of the deceased.

06. Petitioner Nos. 1 & 2 are parents while petitioner Nos. 3 to 6 are sisters of the Constable Mohd. Iqbal in J&K Police who was killed allegedly by militants while in action on 30.09.2001. The case of the petitioner is that all of them were dependent on the income of the deceased and are, therefore, entitled to pension, gratuity and other retiral benefits including Provident Fund. As petitioner Nos. 1 and 2 are old aged parents of the deceased and petitioner Nos. 3 to 6 are school going sisters and were also dependent upon him and accordingly had applied for payment of their service pension, gratuity and ex- gratia relief to all the respondents. Therefore, in terms of Rule 240-E, all of them are members of family for the purposes of Rule 240-B, as per the definition of family members given in Rule 240-C(ii) of the Civil Services Regulation.

07. The procedure for disbursement of death-cum-retirement gratuity is provided in Rule 240-E of Jammu and Kashmir Civil Services Regulation but the respondents have denied the amount to the petitioners in violation of the rule even though the petitioners have furnished dependency certificate issued by 4 OWP No. 802/2003 Tehsildar Bhalesa (Gandoh). The petitioners challenge Rule 240-E of Civil Services Regulation as violative of Article 14 as it treats equals as un-equals for grant of pensionary and retiral benefits because family for the purpose of Rule 240-B is defined in Rule 240-C sub-rule (a) to (d) and it clubs wife and sons, un-married daughters as one unit and parents of the deceased and their children in different units, though all have been defined as family members for the purpose of Rule 240-B of Jammu and Kashmir Civil Services Regulation.

08. The ex-gratia relief to have been paid to the dependent of the deceased in terms of Rule 249-M(A) as amended vide SRO 570 dated 10.09.1986 but even this was ignored in view of Circular No. AIG(W-EGR/107/2001-57104-205 dated 18-12-2001 issued by the respondent No. 3. It provided that ex-gratia relief to the family of the deceased police person will be paid in accordance with Rule 240-E which is arbitrary and archaic law.

09. That both Rule 240-E and Circular dated 18.12.2001 infringe upon the right to life of the petitioners guaranteed under Article 21 of the Constitution are liable to be quashed. Finally the prayer by the petitioners is to quash Rule 240-E of Civil Services Regulation being unfair, unjust, arbitrary and un-constitutional and to quash the circular dated 18.12.2001 issued by respondent No. 3 being arbitrary and offending Article 14 of the Constitution of India and to such other reliefs as the parties may be found entitled.

10. Respondent No. 5 is the widow of the deceased, who has filed objections to the petition denying the right to any of them of retiral benefits, or ex-gratia relief. The official respondents have also filed objections through the Additional Advocate General pleaded inter alia that ex-gratia relief of Rs. 6.00 lakhs have already been paid to the widow of the deceased, as such, this 5 OWP No. 802/2003 petition is not maintainable.

11. In the counter filed by the State, it is denied that there is any illegality in the vires of the rule or circular issued by respondent No. 3. Learned counsel for the petitioners has relied upon Section 21 of the Hindu Adoption and Maintenance Act to support the plea that the parents and their children are the dependents. However, this act applies only to Hindu and, therefore, no reliance can be placed upon Section 21 of the Act as Muslim Law and inheritance is different from the Hindu Law.

12. Mr. Bhat, learned counsel for the petitioners, has placed reliance on the following judgments in support of his submissions:-

I. Mahalakshmi Tikoo v/s State Bank of India and others‟ AIR 2009(3) SLJ 377 II. Kartiyani v/s State of Rajasthan 1998(4) SCT 534. III. Lichhami Devi v/s State of Haryana 2001(4) SCT 642.

IV. Ameena v/s State of Kerala 2001 STC 535

13. The judgment of this Court in Mahalakshmi Tikoo v/s State Bank of India and others' AIR 2009(3) SLJ 377 rendered by the Single Bench is not relevant as it relates to Rule 23(5) of the SBI Employees Pension Fund Rules which provides for eligibility of the spouse of the employee or other but does not include dependent i.e father or mother. However, the judgment held that even Section 50(2)(O) talks of framing regulation for payment of pension provided or other funds for the benefit of the employees of the State Bank or their other dependents. Once the act itself provides for framing of regulation to provide for pension to the dependents then it is not possible to read Rule 23(5) without including in the list of eligible persons, the mother or father, who 6 OWP No. 802/2003 might be dependents on their son, therefore, Rule 23(5) provided for eligibility to earn pension must be read down to mean that it includes other dependents apart from the spouse, son or daughter. The aforesaid construction is imperative in order to save the rule from coming in conflict with the provisions of section 50(2)(O). The Court further held in para 10 as under:-

"Even under Section 488 of the Criminal Procedure Code, Svt 1989, the parents are entitled to maintenance from their children in case they are unable to maintain themselves."

14. It is well settled law that principles of reading provisions as a tool of interpretation of statue may be adopted in case of social legislation and to save the statue from being declared invalid in that regard. Reliance may be placed on the judgment of the Apex Court rendered in the case of Government of Andhra Pradesh and others v/s P. Laxmi Devi (2008) 4 SCC 720.

15. Their lordships while reading down the provisions of State Bank of India has held in para 12 that:-

"If the aforesaid principles are applied to the phase of the present case then for the purpose of interpretation the provisions made in the rule have to be read for the benefit of the dependents which would also mean mother, therefore, we are of the view that the conclusion reached by the learned Single Judge is correct on facts and law. However, the Bench in para 13 observed that we are in agreement with Mr. Bashir learned counsel for the appellant-party that the provisions of J&K Hindu Succession Act, 1955 could not be relevant for the purpose of determining the issue of dependency. Therefore, for the reading adopted by the learned Court to the extent would not be accepted and therefore, the same is set aside."

So the appeal was dismissed but the order granting the benefit was upheld by reading down the provisions as noted above.

7 OWP No. 802/2003

16. The next judgment is of Rajasthan High court in case titled Kartiyani v/s State of Rajasthan 1998(4)SCT 534 in which learned Single Judge in para 11 has held as under:-

" 11. From the above discussion, the petitioner because of the reason that the deceased officer Miss Vasanthi, who was unmarried and had left no heir except the old widowed mother (petitioner) of 68 years, shall be entitled to family pension to be calculated under the rules. A direction is, therefore, issued to the respondents to determine the dependent‟s pension admissible to the petitioner. The payment shall be made with effect from the date of death of Miss Vasanthi. The petitioner shall be entitled to interest @ 12% per annum and necessary payment will be made within a period of three months from the date of receipt of a certified copy of this order. The petitioner shall also be entitled to costs" of Rs. 1000/-".

17. It was thus a case of old widow mother whose unmarried daughter died in harness. She had no heir so the direction was issued to the respondent to determine her pension as dependent and grant the same to her because rule excludes the mother but as per the definition of family in Rule 240-C of Jammu and Kashmir Civil Services Regulation takes care of the parents of the deceased in the absence of his family members i.e widow and children.

18. This is provided in Rule 240-E which inter alia provides that if the government servant die without making any nomenclature conferring on one or more of his relatives named in Article 240, the right to receive the amount of death-cum- retirement gratuity shall be paid in equal shares to the surviving members of the government servant as declared in sub-clause (a) of Article 240-C except widow daughter where there are no surviving members but there is widow daughter (S) and one or more members of the family of the government servant who belong to category (e) and (i) of Article 240-C(ii), the gratuity may be paid to all such persons in equal shares. So parents, brothers below age of 18 and un-married sisters are all included in term „family‟ but they get share in the 8 OWP No. 802/2003 gratuity only if the deceased has made no nomenclature and were unmarried so the judgment helps the case of the petitioners. In case titled Lichhami Devi v/s State of Haryana decided on 16.07.2001 parents were claiming pension as they were dependent on their son Joginder Singh who died in harness but they were not entitled to pension under the Pension Rule. Relying on the earlier judgment, Punjab and Haryana High Court in State of Punjab v/s Kharak Singh Kang 1998(1) SCT 556 has held that the rules of exclusion of parents of the deceased government employees from the concept of family has no rationale and could not be denied family pension. The High Court directed the parents be given family pension but it was also a case where the employee was un-married.

19. In Ameena v/s State of Kerala 2001(1) SCT 535 the Kerala High Court while directing the government to pay family pension to the mother of deceased under rules held in para-5:-

"5. Rule (6A) starts with the non obstante clause. The Petitioner is the mother of the deceased Government employee. She was solely dependent of the deceased for maintenance. She has no other source of income or support for maintenance. The entitlement of receiving family pension is also subject to three other conditions mentioned in Sub-rule (6A). The employee must be unmarried at the time of the death or if married, he had no spouse or minor children at the time of death. The Petitioner's son was not survived by his widow. He had no minor children also at the time of his death. Second condition is that the parents of the deceased employee have no other living children who are well-placed. The Petitioner has no other son or daughter who is well-placed. The last condition is that only one family pension will be payable to a person under this rule. Thus, this is a case where the Petitioner satisfies the requirements of Sub-rule (6A) of Rule 90 of Part III K.S.R."

Both mother as well as un-married daughter having no source of maintenance were held eligible for pension, so it is a case of interpretation of 9 OWP No. 802/2003 the rule. But in Jammu and Kashmir Civil Services Regulation, parents are included in family though they are entitled only to gratuity in case their son died un-married and had not nominated nominee as required under law.

20. This is a case where deceased was married having no child but his wife who got all the benefits and left his aged parents high and dry as she was very young and must have re-married by now. It is said that parents have not even given any share in the ex-gratia relief of Rs. 6.00 lakhs as the entire amount was paid to the widow of the deceased. She filed an affidavit that she would not re-marry and also would undertook to live with her in-laws but the official should have been concerned enough to take care of the parents of the deceased as also the widow. So far as the payment of relief is concerned, it creates an artificial difference between the family of the deceased and his parents. The family of the deceased for the purpose of family pension is only his wife and his children but for the purpose of death-cum-gratuity, parents, his minor brothers, un-married and widow sisters are also included in the family but only in case the deceased does not nominate any person to receive death-cum- retirement gratuity, this is provided in Rule 240-E which provides for nomenclature. Its relevant portion is extracted below:-

"240-E. When the gratuity is payable to the nominee or a family member of the Government servant who dies while in service. If the Government servant has executed a nomination in the prescribed (Forms A and B of Schedule XV) and the nomination subsists, the Head. of the Office/Department should, on receipt of the death report of the Government servant draw up a statement of his services on the 2nd page of the pension application form. If the Government servant dies without making a nomination conferring on one or more of the relatives named in Art. 240-C (ii) the right to receive the amount of death-cum-retirement gratuity, it shall be paid in equal shares to those surviving members of Government servant‟s family as detailed in sub-clauses (a) to (d) of Art. 10 OWP No. 802/2003 240-C (ii) except widowed daughters. Where there are no such surviving members, but there is/are surviving widowed daughter(s) and/or one or more members of the family of the Government servant who belong to category (e) to (i) of Art. 240-C (ii) the gratuity may be paid to all such persons in equal shares".

21. So it is only in the absence of nomination that amount of gratuity is payable to the members of his family and only when he has family, the family members defined in sub-clause (a) to (d) of Article-240-C will get payment according to their share. However, according to Mr. Bhat, this rule is arbitrary as it treats equals as un-equals. In support of this, he has relied upon a judgment in State of Punjab v/s Kharak Singh 1998(1)SCT 556 and states that this offends the constitution. But it was a case in which deceased died un-married and the rule excludes mother being the heir to claim family pension as she was held dependent upon him. The direction was to grant her family pension. This decision was followed by the Single Judge of the same Court in case Lichhami Devi's case (supra) where again the deceased employee was unmarried having his aged mother as dependent so neither the judgment supports the case of the petitioners as the deceased employee in this case was married and under rule the widow alone is entitled to pension and gratuity. Regarding the ex-gratia grant, the stand of the respondents is that it has been paid to respondent No. 5 in terms of Government Order No. 723-GR-GAD of 1990 dated 17.07.1990. It is also admitted that amount has been enhanced from Rs. 1.25 lakhs to Rs. 6.00 lakhs and the same has been paid to her. The objections were filed by the Additional Advocate General on 17.12.2003 and has been signed by Senior Superintendent of Police. The respondents have also filed the counter denying that no provision of the Jammu and Kashmir Civil Services Regulation offends 11 OWP No. 802/2003 the Constitution.

22. Moreover, the deceased being married having a separate family and his father had a separate family then and distinction has been well explained in Article 240-E and is not arbitrary as the family members detailed in sub-clauses (a) to

(d) are not equal to the family members categorized in sub-clauses (e) to (i) of Rule 240-C of the Jammu and Kashmir Civil Services Regulation, 1956.

23. In view of the above discussion this petition is not maintainable and the same is dismissed, accordingly, alongwith connected IAs.

(Sindhu Sharma) Judge JAMMU 01.10.2019 SUNIL-II Whether the order is speaking? Yes/No Whether the order is reportable? Yes SUNIL KUMAR 2019.10.03 15:36 I attest to the accuracy and integrity of this document

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