Rajasthan High Court - Jaipur
Shashi Kant vs State Of Rajasthan And Ors. on 16 March, 1989
Equivalent citations: 1989(2)WLN429
JUDGMENT Kanta Bhatnagar, J.
1. The question raised, point agitated and the relief sought against in this writ petition is the negation of the (quality to the persons similarly situated, by fixing a specific date September 2, 1972 in the definition of the term 'deceased Government Servant' in Rule 2(e) of the Rajasthan Recruitment of Dependants of Government Servants Dying While in Service Rules, 1975(here in after to be referred as 'the Rules') through a Notification viz., Department of Personnel (A-II) Notification No. F.3(6) Karmik/Ka-II/75, dated September 29, 19,5 by which the benefit of recruitment to the members of the family of the deceased under the Rules was limited only to the members of the family of the Government servant dying on or after September 2, 1972.
2. The brief facts of the case as disclosed in the writ petition and the reply filed thereto, are that petitioner Shashikant's father Manoharlal, a constable in Police Department, posted at Pali, while going in a Jeep of the Police Department proceeding in hot pursuit of an opium smuggler, met a fatel accident on January 27, 1968 leaving behind him his widow Smt. Urmila Devi and the petitioner, a child of four and half years, and another child of three or four months old. The means of the livilihood of the family thereafter was a petty amount of Rs. 144/- p.m by way of family pension. When the petitioner attained the age of majority and passed his Higher Secondary examination, his mother made an application to the Inspector General of Police for providing a job to him on compensate grounds of the family facing great financial hardship At the direction of the higher authority the request was sympathically considered by the Superintendent of Police, Pali and the petitioner was appointed as L DC. on probation of two years vide order dated September 24, 1982 (Annexure-1) meant to be under the Rules. Vide letter dated October 20, 1982 (Annexure-II) the Deputy Inspector General of Police, Head Quarter Jaipur forwarded the applications of five persons including Smt Urmila Devi, mother of the petitioner seeking appointment under the Rules and requested for action at the higher level. The services of the petitioner were terminated vide order dated June 8, 1983 (Annexure III) on the ground that the candidates regularly selected by the Public Service Commission Rajasthan, Ajmer were available. At the representation of Smt. Urmila Devi against the termination of the services of the petitioner the Deputy Inspector General of Police Head Quarter, Jodhpur wrote a letter dated August 19, 1983 (IV) to the Deputy Inspector General of Police, Jodhpur Range, Jodhpur, mentioning that the appointment was given to Shashi Kant being the eldest son of deceased Constable Manohar Singh and that the availability of the regularly selected candidates from Rajasthan Public Service Commission will not affect the services of the petitioner and that in case the post on which Shashi Kant was appointed bad been filed up and there may not be any vacancy at Pali, he may be appointed on the vacant post of LDC in Barmer District. In reply to the aforesaid letter, the Superintendent of Police, Pali sent the letter dated July 29, 1983 (Annexure-V) to the Deputy Inspector General of Police, Head Quarter Jaipur stating that Manoharlal had expired on January 27, 1968 whereas the Rules were framed in the year 1975 and family members of only those persons dying after the issuance of the circular being entitled for appointment under the Rules, Manoharlal's son Shashi Kant was not entitled to appointment under the Rules and that there was no vacancy even of LDC. It was further stated that so far as the appointment on the post of Constable is concerned, the Board had not been constituted and when ever the Board would be constituted his case would be sympathetically considered.
3. As the Department was sympathetic towards the family of the deceased Constable Manoharlal, the Superintendent of Police, Pali :a compliance to the directions of the Special Inspector General of Police vide order dated January 17, 1984 (Annexure-VI) appointed the petitioner as LDC temporarily for a period of four months with a further direction that an regularly selected candidates from the Rajasthan Public Service Commission being available, the services of the petitioner would be terminated. Vide order dated May I5, 1985 (Annexure-VII) the services of the petitioner were terminated at the a expiry of the period of four months envisaged in the order dated January 16. 1984 (Annexure-VI). Again a sympathetic view has taken and vide order dated May 21, 1984 (Annexure VIII) the Superintendent of Police, Pali appointed the petitioner as LDC temporarily for a period of three months with a further order that in case of availability of regularly selected candidates from the Rajasthan Public Service Commission the services of the petitioner would be immediately terminated.
4. The petitioner apprehending termination of his services on August 16,1984 filed petition under Article 226 of the Constitution of India in this Court for quashing the Orders dated June 8, 1983 (Annex.-III) & 15-5-85 (Anx. VII) terminating his services for striking down the words on or after 2nd day of September, 1972 occuring in R 2(e) of the Rules as they are ultra vires of Articles 14 and 16 of the Constitution of India and prayed for directions to the respondents to give him substantive appointment from the date he was given the initial appointment.
5. In response to the show cause notice, reply was filed on behalf of the respondents and it was contended that the Rules came into force on September 29. 1975 and the case of the petitioner was not covered under the Rules because his father had died on January 27, 1968 and the services of the petitioner was terminated for that reason as evident from the letter of the Deputy Inspector General of Police dated June 4, 1983 (Annexure-R/3) by which the Superintendent of Police, Pali was directed to terminate the services of the petitioner because his appointment not being under the Rules was not being regular. That since the selected candidates from the Rajasthan Public Service Commission were available, petitioner was removed from service on August 18, 1984. It has been further stated in the reply that 1975 Rules being prospective in operation the petitioner, whose father had expired in the year 1968 was not entitled to any benefit under these Rules.
6. Mr. M. Mridul, learned Counsel for the petitioner placing reliance on the principles enunciated in various authorities, which we would presently discuss, strenuously contended that the purpose of framing of the Rules would be frustrated by mentioning a specific dated in the definition of the term "deceased Government Servant" in the Rules. According to Mr. Mridul the fixing of the date has no nexus with the object of the Rules. That, the date September 2, 1972 occurring in Rule 2(e) of the Rules is arbitrary as it devides deceased Government Servants' in two categories, one of those dying before September 2,1972 and the other of those dying on or after September 2, 1972.
7. Mr. J P. Joshi, learned Additional Advocate General controverting these contentions submitted that the Rules are prospective in operation and the Government cannot be obliged to make the Rules effective retrospetively The entertainability of the writ petition has been challenged on the ground that the case of the petitioner is not covered by the Rules as they stand and there is no infringement of any legal right of the petitioner which may a entitled him to invoke the extra-ordinary jurisdiction of this Court.
8. In order to appreciate the arguments of the learned Counsel for the parties, it would be profitable to look to the object of framing the Rules and its Scheme.
9. A circular dated September 2, 1972 regarding the relief to the Government Servant who dye in harness leaving their families in indigent circumstances, was issued It has been mentioned there in that the question of providing such a relief was under consideration of the Government for some time. Then in exercise of the powers under Article 309 of the Constitution, Rajasthan Recruitment of Dependants of Government Servants Dying While in Service Rules, 1975 were framed Sub-Rule (2) of Rule 1 of the Rules made the Rules enforceable from the date of their publication in the Rajasthan Rajpatra which date is October 2, 1975. As stated earlier, the definition of the terms "deceased Government servant' was changed by inserting the words 'on or after 2nd day of September, 1972 in Rule 2(e) of the Rules The words who dying while in service on or after the commencement of these Rules, occuring in Rule 5 of the Rules relating to the recruitment of the members of the family of the deceased, were substituted by the words 'deceased Government servant.
10. The point involved in the present writ petition is whether fixing of the specific date i.e. September 2,1972 in Rule 2(e) of the Rules is valid and whether it is nexus with the object of the framing of the Rules.
11. Evidently the fixing of the date divides the deceased Government servants in two categories and creates a distinction between the Government servants dying before September 2, 1972 and these dying on or after that date. With this definition the benefit under the Rules is made available only to the members of the family of a Government servant dying on or after this specific date.
12. The pertinent question would be whether there can be any justification in depriving the members of a Government servant dying while in service of the benefit under the Rules simply because he had died before the specific date. Despite the fact that the Rules were framed as a measure of socio economic justice to the families of the Government servant with the consideration that there may be means of livilihood for the members of the family of the Government servant who could not reap the fruits of his service or. retirement and also a consolation to the Government servant that in case any clamity falls and he quits the world leaving the family in fanancial trouble, the Government would come at the rescue of the family by providing means of livlihood by giving employment to the member of the family on the post for which he or she, as the case may be, is eligible.
13. The courts have taken a serious view of denial of equal opportunity to the persons similarly situated and this anxiety of the courts to remove discripency of treatment between the persons similarly situated has found expression in a catina of cases by this Court and the Apex Court of the country.
14. In the case of D. R. Nim v. C.S Prasad the validity of the Government of India order dated August 25, 1955 reckoning the service for promoted Indian Police Service Officers from May 19, 1951 was challenged. The period of officiating as Superintendent of Police of the petitioner in that case from June 25, 1947 to May 19, 1951 as the date for reckoning the service for promoted Indian Police Service Officers. After considering the facts and circumstances of the case and the explanation of the Government of India for fixing the date, their Lordships held that the date May 19, 1951 was invalid since it was artificial and arbitrary and the impugned order was quashed.
15. In the case of Jaila Singh and Anr. v. State of Raj and Ors. the question of validity of certain Rules promulgated under the Rajas-than Colonisation Act, 1954 drawing a distinction between the Pre-1955 and post 1955 tenant was raised. Their Lordships found no justification in drawing: such a distinction by making different type of Rules for allotment of land to two sets of tenants and struck down Condition No. 3 of the Pre-1955 Conditions and the definition of landless person as contained in Rule 2(I)(xiii) as well as Rule 3(2) of the post 1955 Rules as being void as they were discriminatory under Article 14 of the Constitution.
16. The question of the validity of the words 'since before 1st day of April, 1955' and 'since before 1st April, 1955' in Rule 7(2) and Rule 2 (xv) of the Rajasthan Colonisation (Allotment and Sale of Government Land in Rajasthan Canal Colony Area) Rules, 1975 in the definition of 'Temporarily cultivation Lease Holder' was challenged in the case of Kumari Jani Bai v. State of Rajasthan 1980 (30) ILR (Raj) 306. According to that definition a temporarily cultivation lease holder meant a person who was a resident of Rajasthan and had been a bonafide agriculturist by profession. Rule 2 (xv) defined 'resident of Rajasthan' as a person ordinarily residing in Rajasthan since before 1st day of April, 1955 and did not include a person ordinarily resident of any other State who had been coming to Rajasthan only from season to season for the purpose of cultivation of land. His Lordship found no jurisdiction for making such a distinction by the words 'since before the 1st of April, 1955 in Rule 2(xv) of those Rules and struck down those words from the definition and thus removed en artificial arbitrary classification between the temporary cultivator lease holders forming one class This view by the learned Single Judge was approved by the Division Bench in the case of Kumari Jani Bai v. The State and Ors. D.B. Civil Special Appeal No. 12/80 decided on November 21, 1988.
17. The question of the validity of classification in revised pension formula between pensioners on the basis of the date of retirement specified in Memoranda dated May 25, 1979 and September 28, 1979 of the Ministry of Defence, on the ground of arbitrariness and violation of Article 14 of the Constitution came for consideration before their Lordships of the Supreme Court in the case of D.S. Nakdra and Ors. v. Union of India .
18. The question arising before the Court in that case were as to whether the pensioners entitled to receive superannuation of retiring pension under Central Civil Services (Pension) Rules, 1972 form a class as a whole, whether the date of retirement a relevant consideration for eligibility when a revised formula for computation of pension is ushered in and made effective from a specified date and whether differential treatment to pensioners related to the date of retirement qua the revised formula for computation of pension attracted Article 14 of the Constitution and the element of discrimination liable to be declared unconstitutional as being violative of Article 14.
19. The implications of these questions were discussed from all the angles taking into consideration the expanding horizons and new norms of socio economic justice. Their Lordships did not consider the classification between people similarly situate by fixing the date which had no rationale behind it, as proper and enunciated the following principle:
Where all relevant considerations are the same, persons holding identical posts may not be treated differently in the matter of their pay merely because they belong to different departments. If that cannot be done when they are in service can that be done during their retirement. Expanding this principle, it can confidently be said that if, pensioners from a class their, computation cannot be by different formula affording unequal treatment solely on the ground that some retired earlier and some retired later.
20. In the case of Bidhubhushan Malik v. Union of India AIR 1983 All. 209 the question of classification of Judges in the High Court Judges (Conditions of Service) Act, 1954 on the basis of date of retirement for conferment of liberalised pensionary benefit came for consideration and it was held that the eligibility for liberalised pension of having retired on or after 1st October 1974 in the said Act of 1954 (as amended) being violative of Art 14 of the Constitution was unconstitutional.
21. Feeling dissatisfied by the judgment striking the words and who has retired on or after October 1, 1974 as unconstitutional, the Union of India approached the Supreme Court Their Lordships of the Supreme Court while deciding the Special Leave petition in the case of Union of India v. Bidhubhushan Malik and Ors. approved the conclusion arrived at by the learned Judges of the Allahabad High Court.
22. The principle enunciated in the aforesaid decisions was followed by this Court in the case of State of Rajasthan v. Retired Contributory Provident Fund Holders Association, Jodhpur 1987 (1) WLN 476 in which one of us (Bhatnagar, J.) was a party. The point for consideration in that case was whether classification between the Contributory Provident Fund Holders similarly situate was permissible and denial of option for pension to those retiring prior to a specified date attracted Articles 14 and 16 of the Constitution There being no basis for fixing the date and thereby making a classification between the Contributory Provident Fund Holders similarly situate, the date so fixed being held to be discriminatory and arbitrary was struck down.
23. If by fixing a date persons forming one class are given different treatment it is not permissible. This how ever does not mean that in no case a date may be fixed for giving benefit to the persons entitled for it, but the choice of date cannot be wholly divorced from the object and if there is basis for the classification by fixing the date, it being artificial and arbitrary would be liable to be set aside.
24. Mr. J.P. Joshi, learned Additional Advocate General emphatically argued that the Government cannot be forced to make the provision retrospectively effective and if the Legislature neither by the express provision nor by necessary implications makes a provision retrospective, there cannot be any illegality infixing a particular date for a particular purpose. Mr. Joshi, placed reliance on the principles enunciated in the case of State Government Pensioners' Association and Ors. v. State of Andhra Pradesh matter related to the provisions for payment of gratuity with prospective effect from a specified date of retirement The denial of the benefit of enhanced gratuity to those retiring before that date was not held to be violative of Article 14 of the Constitution of India. The revised Scheme for gratuity was made operative only prospectively mentioning the date in the Scheme i.e. April 1, 1978. Mr. Joshi submitted that their Lordships while deciding the case had referred to the case of D.S. Nakara v. Union of India (supra) where their Lordships while striking down the specified date for eligibility for liberalised pension Scheme had observed that the Scheme was prospective for the purpose of claim of arrears.
25. True it is that in the in the State Government Pensioners Association's case it was held that the arrears relating to gratuity benefit computed under Revised Pension Rules, 1980 may not be paid to the pensioners that retired prior to April 1, 1978 because at the time of retirement, they were governed by the then existing Rules and their gratuity was calculated on that basis and the same was paid. It was how ever observed that since the revised scheme was operative from April 1, 1978, the continuing: rights of the pensioners to receive pension and family pension must also be revised according to that scheme. But the same cannot be said with regard to gratuity which was accrued and drawn.
26. In that case there was no question of discrimination between the person similarly situate and as such the principle enunciated therein would not apply to the case before us where the challenge is to the classification between persons forming one class. This being the position we posed a question to the learned Additional Advocate General as to what was the basis for inserting the date September 2, 1972 in the definition of the term 'deceased Government Servant' in Rule 2(e) of the Rules. Mr. Joshi tried to meet out the query by referring to the circular No. P1 (4) Emp/72 dated the 2nd Sept, 1972 issued by the Government of Rajasthan, Labour and Employment Department and submitted that as the Government had decided on that date to give relief to the dependants of Government Servant who die in harness, that date might have been taken into consideration and while amending Rule 2(e) of the Rules, a date accordingly might have been specified. The argument has no force, because the circular was already there when the Rules were published on October 2, 1975 and the Notification was issued on September 29, 1975 by the Department of Personnal (A) Group (II) where as this date, as stated earlier, was inserted vide Notification dated March 25, 1976. It is also to be noted that the circular dated September 2, 1972 was made effective retrospectively by inserting the last line in it to the effect that the circular shall come into force with retrospective effect from 15th August, 1971 i e. the case of the dependants of Government servants who might have expired on or after 15th August, 1971 will be dealt with accordingly. This clearly indicates that 2nd September, 1972 being the date of Circular could not be the basis for specifying the date in Rule 2(e) of the Rules.
27. The object behind framing the Rules was to give relief to the family of a Government servant meeting untimely death while in service. The untimely demise of the sole earner of the bread for the family places the family in a pitiable condition without roof on the head and bread in the hand. The Scheme under the Rules was a measure to give socio economic justice to the members of the family of a person who breathes his last while in service. It also gives a relief to the Government servant that in case of any calamity falling on the family on account of his death prior to retirement, the family «ill not have to lead a life of humiliation as some member of the family eligible for some job will be employed.
28. This being the object of the Scheme, the classification between persons dying on or after September 2, 1972 and those dying prior to that date is obviously unreasonable, irrational and discriminatory. What difference would it make if a person dies prior to the specific date or on or after that. The dependants of all Government servants who die while in service from one class and if any classification amongst them is nude by fixing a specific date for which there is neither any rationale nor any basis it would attract the provisions of Article 14 of the Constitution and is liable to be struck down
29. It is important to note that striking down the portion 'on or after September 2, 1975, in definition of the 'deceased Government servant' in R.2(e) of the Rules will not in any way affect the object of Scheme. In other words the definition bereaved of these words will not make the Scheme ineffective because these words were subsequently inserted and as discussed above without any rhyme or reason.
30. Consequently, the words 'on or after September 2, 1972' in Rule 2(e) of the Rules vide Department of Personal (A Group-II). Notification No. F. 3(6) Karmic)Ka- II) 75, are struck down. The definition of the term 'deceased Government servant' would therefore be as it stood prior to this Notification. Because of this decision the amendment in Rule 5 of the Rules made on March 25, 1976 by the same Notification substituting the words 'deceased Government Servant' for the then existing clause 'Government servant who dies on or at the commencement of these Rules, would be in consonance with the principle enunciated by us and will remain as such.
31. In view of this decision, the case of the petitioner Shashi Kant falls within the ambit of R 5 of the Rules and he is entitled to the benefit under the rules and his writ petition is therefore, allowed. The Orders dated June 3, 1983 (Annexure-III) and May 15. 1984 (Annexure-VII) terminating the services of the petitioner as well as the Order dated August 18, 1984 removing him from service are quashed. The petitioner shall be reinstated forthwith in service and shall be deemed to be in continuous service since September 14, 1982 when he was given appointment for the first time, with all consequential benefits. The question regarding the payment of emoluments from August 19, 1984 to the date of his reinstatement shall how ever depend on the satisfaction of the concerned authority as to whether he was in any gainful employment during this period or not.