Uttarakhand High Court
Smt Manju Devi vs State Of Uttarakhand And Others on 23 February, 2018
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No.294 of 2015
Manju Devi
....... Petitioner
Versus
State & others ... Respondents
Mr. Sushil Vashisth, Advocate, for the petitioner.
Mr. B.S. Parihar, S.C., for the State.
Date of Judgment: 23rd February, 2018
Hon'ble Rajiv Sharma , J.
Petitioner's husband namely Sri Pramod Prasad was a rifleman serving in Garhwal Rifles. He was posted in the disturbed area of Jammu and Kashmir. The Army has launched 'Operation Parakram'. Petitioner lost her husband in 'Operation Parakram'. The State of Uttarakhand granted ex gratia relief of Rs.5,000/- to the petitioner purportedly on the basis of the G.O. dated 22.10.1990 issued by the State of U.P. Thereafter, the State of Uttarakhand, in recognition of the services rendered by the army personnel, issued the Government Order dated 5.3.2014 whereby the ex gratia amount has now been enhanced to Rs.6.00 lakh for the wife and Rs.4.00 lakh for the parents.
2. The paramount consideration for issuing the G.O. dated 5.3.2014 is to pay homage to the army personnel who have laid down their lives while defending the nation, may be due to outside aggression or internal 2 disturbance. The underlying principle is also to mitigate the hardship faced by the spouse or the family members of the army personnel who have died on duty. This is a laudable object. The Court places on record its appreciation to the State of Uttarakhand for coming out with such a beneficial government order granting ex gratia payment to the family members of the martyrs.
3. Learned Counsel appearing for the petitioner submits that the cut-off date 5.3.2014 has no nexus with the object, sought to be achieved. He further submits that the homogenous class of martyrs has been discriminated against, though similarly situate. In other words, his submission is that the applicability of G.O. dated 5.3.2014 creates invidious discrimination and is also violative of Article 14 of the Constitution of India.
4. Petitioner, in fact, has asked for ex gratia grant on the basis of communication dated 5.3.2014 but it was denied to her. Petitioner has been issued the certificate by the Director, Sainik Kalyan and Punarvas, certifying that the petitioner, who is the widow of army personnel, was granted a sum of Rs.5.000/- on 22.3.2004.
5. The Court is of the prima facie view that the cut-off date 5.3.2014 has no reasonable nexus with the object sought to be achieved. The object sought to be achieved by issuing the G.O. dated 5.3.2014 is to mitigate the hardships faced by the family members of the army personnel, who have laid down their lives while defending the nation.
36. Petitioner has lost her husband at a very young age in the year 2003. All the martyrs, who have laid down their lives while defending the nation, constitute one homogenous class. The homogenous class cannot be permitted to be divided without any discernible criteria/rational. The State Government should have applied the G.O. dated 5.3.2014 retrospectively. It was expected from the State, being a welfare State, to consider the case of the petitioner also under the G.O. dated 5.3.2014.
7. In AIR 1967 S.C. 1301 in the matter of 'D.R. Nim v. Union of India', their Lordships of Hon. Apex Court have held that the date cannot be picked up from a hat. There should be rationale in picking up the date, more particularly, while dealing with the cases of army people. Their Lordships have held as under: -
3. Sub-rule (1) clearly makes Rule 3 the Controlling Rule for the purposes of assignment of the year of allotment. The Rule then divides officers into two categories: (1) an officer in the Indian Police Service at the commencement of the Rules, and (2) an officer appointed to the Indian Police Service after the commencement of the Rules. We are concerned with the second category as the appellant was appointed to the Indian Police Service in 1955. The second category is again divided into two sub-categories: (a) officer appointed to the service as a result of a competitive examination, and (b) officer appointed to the service by promotion in accordance with Rule 9 of the Recruitment Rules. As the appellant was appointed to the Service by promotion, we are concerned with the second sub-category. The formula adopted works out as follows: first find out the year of allotment of the junior-most among the officers recruited to the service by competition, who officiated continuously in a senior post from a date earlier than the date of commencement of officiation of the appellant. We may again mention that the appellant started officiating as Superintendent of Police on June 25, 1947. But, according to the first proviso, if the appellant started officiating continuously in a senior post from a date earlier than the date of any officer recruited by competition his allotment had to be determined ad hoc by the Central Government. According to the facts of this case, the first proviso applies and not the test provided in Rule 3(3)(b) of the Seniority Rules. The second proviso limits the operation of the first proviso by dividing the officiating period into two classes: first, a period before the date of inclusion of an officer in the Select List and, secondly, the period after that date. The first period can only be counted if such period is approved by the Central Government in consultation 4 with the Commission. The appellant's name was included in the Select List of 1956. Therefore, in the case of the appellant, the period prior to 1956 had to be approved by the Central Government in consultation with the Commission.
4. We may here notice Explanation 1 to Rule 3, because the Government of India also say that the appellant officiated continuously as a temporary or local arrangement. We will deal with this aspect later, but for the time being we assume that there is no force in the Government of India's contention and the Explanation does not apply to the facts of the present case. Therefore, according to the Rule the Central Government had to determine ad hoc the year of allotment after approving or not approving the period of officiation of the appellant before 1956. The Government of India say that they determined this by issuing the impugned order, the relevant part of which reads as follows:
"The Government of India have now decided with the concurrence of the Commission that the State Civil Service Officers who were officiating prior to 19th May, 1951, but have been appointed to the Indian Administrative Service after that date should for purposes of fixation of seniority, be allowed the benefit of their continuous officiation in senior posts with effect from the 19th May, 1951. The same decision will also apply in the case of State Police Officers promoted to the Indian Police Service after 19th May, 1951."
6. It would be noticed that the date, May 19, 1951, to begin with, had nothing to do with the finalisation of the Gradation List of the Indian Police Service because it was a date which had reference to the finalisation of the Gradation List for the IAS. Further this date does not seem to have much relevance to the question of avoiding the anomalous position mentioned in para 9 of the affidavit, reproduced above. This date was apparently chosen for the IAS because on this date the Gradation List for all the earlier persons recruited to the Service had been finalised and issued in a somewhat stable stage. But why should this date be applied to the Indian Police Service has not been adequately explained. Mr B.R.L. Iyengar, the learned counsel for the appellant, strongly urges that selection of May 19, 1951, as a crucial date for classifying people is arbitrary and irrational. We agree with him in this respect. It further appears from the affidavit of Mr D.K. Guha, Deputy Secretary to the Government of India, Ministry of Home Affairs, dated December 9, 1966, that "the Government of India have recently decided in consultation with the Ministry of Law that the Ministry of Home Affairs Letter No. 2/32/51-AIS, dated 25th August, 1955, will not be applicable to those SCS/ SPS officers, who were appointed to IAS/IPS prior to the promulgation of IAS/IPS (Regulation of Seniority) Rules, 1954, and the date of the issue of the above letter if their earlier continuous officiation was approved by the Ministry of Home Affairs and Union Public Service Commission". It further appears that "in the case of Shri C.S. Prasad also, an IPS officer of Bihar, a decision has been taken to give the benefit of full continuous officiation in senior posts and to revise his year of allotment accordingly". But, it is stated that "as Shri Nim was appointed to IPS on the 22nd October, 1955 i.e. after the promulgation of IPS (Regulation of Seniority) Rules, 1954, and after the issue of letter dated 25th August 1955, his case does not fall even under this category". The above statement of the case of the Government further shows that the date, May 19, 1951, was an artificial and arbitrary date having nothing to do with the application of the first and the second proviso to Rule 3(3). It appears to us that under the second proviso to Rule 3(3) the period of officiation of a particular officer has to be considered and approved or disapproved by the Central Government in consultation with the Commission considering all the relevant facts. The Central Government cannot pick out a date from a hat -- and that is 5 what it seems to have done in this case -- and say that a period prior to that date would not be deemed to be approved by the Central Government within the second proviso."
8. Their Lordships in AIR 1983 S.C. 130 in the matter of 'D.S. Nakara and others v. Union of India and others' have struck down the cut-off date dividing the homogenous class. Their Lordships have held as under:-
"15. Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question.
16. As a corollary to this well established proposition, the next question is, on whom the burden lies to affirmatively establish the rational principle on which the classification is founded correlated to the object sought to be achieved? The thrust of Article 14 is that the citizen is entitled to equality before law and equal protection of laws. In the very nature of things the society being composed of unequals a welfare State will have to strive by both executive and legislative action to help the less fortunate in the society to ameliorate their condition so that the social and economic inequality in the society may be bridged. This would necessitate a legislation applicable to a group of citizens otherwise unequal and amelioration of whose lot is the object of State affirmative action. In the absence of doctrine of classification such legislation is likely to flounder on the bed rock of equality enshrined in Article 14. The Court realistically appraising the social stratification and economic inequality and keeping in view the guidelines on which the State action must move as constitutionally laid down in Part IV of the Constitution, evolved the doctrine of classification. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succour. Legislative and executive action may accordingly be sustained if it satisfies the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlate it to the objects sought to be achieved. This approach is noticed in Ramana Dayaram Shetty v. International Airport Authority of India7 when at SCR p. 1034 (SCC p. 506), the Court observed that a discriminatory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.
32. Having succinctly focussed our attention on the conspectus of elements and incidents of pension the main question may now be tackled. But, the approach of court while considering such measure is of paramount importance. Since the advent of the Constitution, the State 6 action must be directed towards attaining the goals set out in Part IV of the Constitution which, when achieved, would permit us to claim that we have set up a welfare State. Article 38(1) enjoins the State to strive to promote welfare of the people by securing and protecting as effective as it may a social order in which justice -- social, economic and political -- shall inform all institutions of the national life. In particular the State shall strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities. Article 39(d) enjoins a duty to see that there is equal pay for equal work for both men and women and this directive should be understood and interpreted in the light of the judgment of this Court in Randhir Singh v. Union of India12. Revealing the scope and content of this facet of equality, Chinnappa Reddy, J. speaking for the Court observed as under: (SCC p. 619, para 1) "Now, thanks to the rising social and political consciousness and the expectations aroused as a consequence, and the forward-looking posture of this Court, the underprivileged also are clamouring for their rights and are seeking the intervention of the court with touching faith and confidence in the court. The Judges of the court have a duty to redeem their constitutional oath and do justice no less to the pavement-dweller than to the guest of the five-star hotel."
Proceeding further, this Court observed that 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 can't be done when they are in service, can that be done during their retirement? Expanding this principle, one can confidently say that if pensioners form a class, their computation cannot be by different formula affording unequal treatment solely on the ground that some retired earlier and some retired later. Article 39(e) requires the State to secure that the health and strength of workers, men and women, and children of tender age are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Article 41 obligates the State within the limits of its economic capacity and development, to make effective provision for securing the right to work, to education and to provide assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Article 43(3) requires the State to endeavour to secure amongst other things full enjoyment of leisure and social and cultural opportunities.
33. Recall at this stage the Preamble, the flood light illuminating the path to be pursued by the State to set up a Sovereign Socialist Secular Democratic Republic. Expression "socialist" was intentionally introduced in the Preamble by the Constitution (Forty-second amendment) Act, 1976. In the objects and reasons for amendment amongst other things, ushering in of socio-economic revolution was promised. The clarion call may be extracted:
"The question of amending the Constitution for removing the difficulties which have arisen in achieving the objective of socio-economic revolution, which would end poverty and ignorance and disease and inequality of opportunity, has been engaging the active attention of Government and the public for some time....
It is, therefore, proposed to amend the Constitution to spell out expressly the high ideals of socialism ... to make the directive principles more comprehensive...."
What does a Socialist Republic imply? Socialism is a much misunderstood word. Values determine contemporary socialism pure and simple. But it is not necessary at this stage to go into all its 7 ramifications. The principal aim of a socialist State is to eliminate inequality in income and status and standards of life. The basic framework of socialism is to provide a decent standard of life to the working people and especially provide security from cradle to grave. This amongst others on economic side envisaged economic equality and equitable distribution of income. This is a blend of Marxism and Gandhism leaning heavily towards Gandhian socialism. During the formative years, socialism aims at providing all opportunities for pursuing the educational activity. For want of wherewithal or financial equipment the opportunity to be fully educated shall not be denied. Ordinarily, therefore, a socialist State provides for free education from primary to PhD but the pursuit must be by those who have the necessary intelligence quotient and not as in our society where a brainy young man coming from a poor family will not be able to prosecute the education for want of wherewithal while the ill equipped son or daughter of a well-to-do father will enter the portals of higher education and contribute to national wastage. After the education is completed, socialism aims at equality in pursuit of excellence in the chosen avocation without let or hindrance of caste, colour, sex or religion and with full opportunity to reach the top not thwarted by any considerations of status, social or otherwise. But even here the less equipped person shall be assured a decent minimum standard of life and exploitation in any form shall be eschewed. There will be equitable distribution of national cake and the worst off shall be treated in such a manner as to push them up the ladder. Then comes the old age in the life of everyone, be he a monarch or a mahatma, a worker or a pariah. The old age overtakes each one, death being the fulfilment of life providing freedom from bondage. But here socialism aims at providing an economic security to those who have rendered unto society what they were capable of doing when they were fully equipped with their mental and physical prowess. In the fall of life the State shall ensure to the citizens a reasonably decent standard of life, medical aid, freedom from want, freedom from fear and the enjoyable leisure, relieving the boredom and the humility of dependence in old age. This is what Article 41 aims when it enjoins the State to secure public assistance in old age, sickness and disablement. It was such a socialist State which the Preamble directs the centres of power -- Legislative, Executive and Judiciary -- to strive to set up. From a wholly feudal exploited slave society to a vibrant, throbbing socialist welfare society is a long march but during this journey to the fulfilment of goal every State action whenever taken must be directed, and must be so interpreted, as to take the society one step towards the goal.
49. But we make it abundantly clear that arrears are not required to be made because to that extent the scheme is prospective. All pensioners whenever they retired would be covered by the liberalised pension scheme, because the scheme is a scheme for payment of pension to a pensioner governed by 1972 Rules. The date of retirement is irrelevant. But the revised scheme would be operative from the date mentioned in the scheme and would bring under its umbrella all existing pensioners and those who retired subsequent to that date. In case of pensioners who retired prior to the specified date, their pension would be computed afresh and would be payable in future commencing from the specified date. No arrears would be payable. And that would take care of the grievance of retrospectivily. In our opinion, it would make a marginal difference in the case of past pensioners because the emoluments are not revised. The last revision of emoluments was as per the recommendation of the Third Pay Commission (Raghubar Dayal Commission). If the emoluments remain the same, the computation of 8 average emoluments under amended Rule 34 may raise the average emoluments, the period for averaging being reduced from last 36 months to last 10 months. The slab will provide slightly higher pension and if someone reaches the maximum the old lower ceiling will not deny him what is otherwise justly due on computation. The words "who were in service on March 31, 1979 and retiring from service on or after that date" excluding the date for commencement of revision are words of limitation introducing the mischief and are vulnerable as denying equality and introducing an arbitrary fortuitous circumstance can be severed without impairing the formula. Therefore, there is absolutely no difficulty in removing the arbitrary and discriminatory portion of the scheme and it can be easily severed.
64. Locus standi of 3rd petitioner was questioned. Petitioner 3 is a Society registered under the Societies Registration Act of 1860. It is a non-political non-profit and voluntary organisation. Its members consist of public-spirited citizens who have taken up the cause of ventilating legitimate public problems. This Society received a large number of representations from old pensioners, individually unable to undertake the journey through labyrinths of legal judicial process, costly and protracted, and, therefore, approached Petitioner 3 which espoused their cause. Objects for which the 3rd petitioner Society was formed were not questioned. The majority decision of this Court in S.P. Gupta v. Union of India19 rules that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. Third petitioner seeks to enforce rights that may be available to a large number of old infirm retirees. Therefore, its locus standi is unquestionable. But it is a point of academic importance because locus standi of Petitioners 1 and 2 was never questioned."
9. In the present case, the date is artificial and arbitrary and against the spirit of helping the martyrs' families. The State of Uttarakhand contributes maximum number of Army, Air Force and NAVY personnel.
10. Accordingly, the writ petition is allowed.
Impugned order dated 21.5.2014 (Annexure No.6) is quashed and set aside.
11. Though, there is no specific challenge to the cut-off date, but since the Court is dealing with the case of a war widow and to do the complete justice, the Court reads down the G.O. dated 5.3.2014 and declares that the same shall apply retrospectively covering the cases of all the army widows/parents for ex gratia payment to 9 mitigate the hardships faced by them. The case of petitioner be considered within six weeks from today.
12. Pending application, if any, also stands disposed of.
(Rajiv Sharma, J.) Rdang