Punjab-Haryana High Court
Iswanti Wife Of Late Sh. Balbir Singh And ... vs Haryana Urban Development Authority ... on 15 March, 2010
Author: K. Kannan
Bench: K. Kannan
C.W.P. No.11854 of 2007 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA
AT CHANDIGARH
C.W.P. No.11854 of 2007
Date of Decision. 15.03.2010
Iswanti wife of Late Sh. Balbir Singh and others ........Petitioners
Versus
Haryana Urban Development Authority through its Chief
Administrator, Sector-6, Panchkula and others ....Respondents
Present: Mr. Naveen Gupta, Advocate for the petitioner.
Mr. Ajay Nara, Advocate for the respondents.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
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K. KANNAN J.
1. The writ petition challenges the decision of the respondents to reject the petitioner's claim for family pension on the ground that a person similar to the 1st petitioner's husband, who had served only for one year was afforded family pension, which had been denied only to the petitioner. The contention of the petitioners was that the 1st petitioner's husband was working as a Chowkidar in Haryana Urban Development Authority at Ambala w.e.f. 01.03.1986 and was regularised w.e.f. 01.02.1996. On 18.02.1997, he had died while still in service. According to learned counsel for the petitioner, the petitioner was entitled to family pension, which was admissible to the employees under a Scheme C.W.P. No.11854 of 2007 -2- formulated and put in place by the respondent organization.
2. The contention in defence is that the employees of the respondent were governed by a Scheme called as Contributory Provident Fund (CPF) and as per the Rules, a CPF Account Number was allotted only after completion of probationary period of one year. The 1st petitioner's husband completed his probation on 01.02.1997 and an order to that effect was passed on 03.09.1997. Within 15 days after issuance of the letter, the petitioner's husband had expired and since by that time, no specific account number had been allotted, no deduction from the salary had been started on account of CPF contribution. On the death of the petitioner's husband, whatever dues had accrued namely (i) death-cum- retirement gratuity, (ii) ex gratia payment of Rs.37,986/-, (iii) leave encashment of Rs.2150/- had all been paid and in addition, by way of compassionate appointment, the 1st petitioner had also been appointed as a Beldar. The pension scheme itself had come through a notification on 22.10.2001 and since the death of the petitioner's husband occurred prior to the applicability of the pension scheme, pension could not be granted to the petitioner. The respondent had also taken a defence that the claim was belated and therefore, the petitioner's claim did not deserve consideration.
3. The issue of limitation need not stand in the way for, pension is a recurring right and if the petitioner was entitled to it, the right cannot be defeated merely on the ground of delay. In this case, on the other hand, the issue is whether the petitioner could C.W.P. No.11854 of 2007 -3- be granted family pension although on the date when the 1st petitioner's husband died, the scheme was not in force. Learned counsel appearing for the petitioner relies on the decision of a Division Bench of this Hon'ble Court in Vinay Kumar and others Vs. The State of Haryana and another 1996(2) SLR 402. The case dealt with a situation where a pension scheme was brought into effect from 01.07.1982. While taking up issue of rejection of the claim of the family pension, the Bench held that the pensionary benefits would also be available to the surviving members of an employee, who died in harness under the said scheme. This decision, according to the petitioner, supports the claim that pension would be available in all cases where a person dies in harness without opting for the applicability of the scheme. In my view, the said judgment ought not to be understood as available to all persons, who had died in harness before the applicability of the Scheme. The Division Bench was referring to its own ruling in Harbans Lal Vs. The State of Haryana in C.W.P. No.1646 of 1995 and held that the family pension and other benefits would be available to the petitioner. I cannot see the observations of the Hon'ble Division Bench in the case referred to as laying down any proposition of law that in all cases where an employee dies in harness without exercising his option even though the pension scheme itself was not in force at the time of the death, family pension would always be payable. It will depend on the terms of the scheme and I have not been shown through any particular provision, which would enable the petitioners to make such a C.W.P. No.11854 of 2007 -4- claim. If on the date of death of the petitioner's husband, the pension scheme was itself not in force and when no provision in the scheme brought in the year 2003 is shown entitling a person to make such a claim for death occurring earlier, I see no scope for acceding to the petitioner's claim.
4. The learned counsel also refers to a decision in Mussammat Sajida Begum Vs. Secretary, Basic Education, U.P. Shasan, Lucknow 2002(3) SCT 781 and the decision in M.C. Dhingra Vs. Union of India 1996(2) SCT 304 to contend i) all pensioners form a homogenous clan and it cannot be denied to one section of employees and admitted to another section and ii) the cut off date for applicability of pension scheme is arbitrary and violative of Article 14. Both these decisions make their reliance on D.S. Nakara Vs. Union of India AIR 1983 SC 130. There is a whole wealth of decisions that have come about after Nakara's case, explaining its scope and sweep. The exceptions are:
(1) financial constraint (State of Punjab Vs. Amar Nath Goel (2005) 6 SCC 754; State of Bihar Vs. Bihar Pensioner's Samaj (2006) 5 SCC 65).
(2) There is a difference between continuance of an existing scheme and introducing a new scheme.
Discrimination could be complained of in the form and not of the latter. (All India Reserve Bank Retired Officers Association Vs. Union of India 1992 Supp (1) SCC 664).
(3) The rigidity of Nakara's case has been watered down. C.W.P. No.11854 of 2007 -5- Cut off date is an executive function and it should not be interfered with by Court unless, the cut off date leads to some blatantly capricious or outrageous result. (Govt. of Andhra Pradesh Vs. Subarayadu (2008) 4 SCC 702.
There is nothing capricious about setting a cut off date for applicability of pension rules only to classes of persons who were in service on a particular date when the Rules were brought into force.
5. The writ petition is, therefore, dismissed.
(K. KANNAN) JUDGE March 15, 2010 Pankaj*