High Court of Punjab and HaryanaCWP/20150/2018disposed of

Satya Devi v. State Of Haryana And Others

2022-11-11Mr. Justice Gurmeet Singh Sandhawalia,Mr. Justice Jagmohan Bansal44 pages

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; 64444=9?'.4.," % ; 6'.4.=9d) Funeral ceremony Rs. 10,000/- e) Ex-Gratia amount Rs. 25,000/- f) Gratuity Rs. 3,95,640/- 4.

As per 2006 Rules, family members of a deceased employee are entitled to monthly financial assistance equal to pay and other allowances that was last drawn by the deceased employee, for a period of 15 years from the date of death of the employee, if the employee at the time of his/her death had not attained the age of 35 years. In the case in hand,

( the deceased was less than 35 years, thus, the family was sanctioned monthly assistance equal to last drawn salary and other allowances for a period of 15 years.

Rule 3 of 2006 Rules provides that eligibility to receive financial assistance under these Rules shall be as per provisions in the FPS, 1964. The expression 'family' has been defined under FPS, 1964, thus, a person falling within definition of 'family' as defined under Clause 4 (ii) of FPS, 1964 is eligible to get financial assistance under 2006 Rules. The expression 'family' has been defined under Clause 4 (ii) of the FPS, 1964. which reads as:- "4(ii) "Family" for the purpose of this scheme includes the following relatives of the officer:- (a) wife, in the case of a male officer;

(b) husband, in the case of a female officer; (c) minor sons;

(d) unmarried minor daughters;

(e) widowed/legally divorced daughters; and (f) the parents of an unmarried officer Note 1.- Clause (c) and (d) include children adopted legally before retirement.

Note 2.- A judicially separated wife/husband does not lose her/his legal status of wife/husband of the Government employee and is thus eligible for the benefit of the Family Pension Scheme1964."

The deceased was married and having two minor children and as per FPS, 1964 read with 2006 Rules, wife and children of deceased fell within definition of family and petitioner stood excluded. The petitioner has filed present petition claiming that she was dependent upon deceased,

5 and thus, she is equally entitled to monthly financial assistance as well as pension, however, she has been denied the same since she does not fall within the definition of 'family' as her deceased son was married. The petitioner has claimed that expression 'unmarried' used in sub clause (f) of Clause 4 (ii) should be declared ultra vires because dependent parents of a child cannot be deprived from their valuable right of pension and financial assistance just because their son/daughter was married at the time of his/her death.

Contention of petitioner:

Learned counsel for the petitioner contended that expression 'unmarried' used in impugned clause is contrary to the financial assistance scheme as well pension scheme because intent and purport of the scheme is to tide over the family from penury. The parents cannot be deprived from the benefit of financial assistance just because their son/daughter was married at the time of his/her death. The parents who were dependent upon their son/daughter, if deprived from financial assistance just because he/she at the time of death was married, would amount to violation with the scheme itself. She further contended that our country is a socialist and welfare state and pension or other financial assistance schemes are implemented to achieve the said goal.

The denial of family pension or financial assistance to a mother who had lost her son amounts to violation of Article 14 as well 21 of Constitution of India apart from violation of scheme itself. With respect to affidavit dated 19.8.

had no relation whatsoever with her son and daughter-in-law. Contention of State:

Learned State counsel opposing the prayer of the petitioner vehemently contended that petitioner was having three sons and deceased was the eldest one. The petitioner vide her affidavit dated 19.8.2016 (Annexure R-5/1) had already disowned her son as well as daughter-in-law. In her affidavit, she had categorically deposed that she had no relation whatsoever with her son Amit Kumar and his wife Suman Devi. The wife of the deceased had filed her written statement dated 12.3.2019 wherein she had categorically stated that husband of the petitioner is working in Liberty Shoe Factory, Karnal and getting salary around Rs. 20,000/- per month and her one son namely Goldy is working in Multi National Company at Noida and frequently visiting abroad.

The petitioner neither by way of rejoinder nor during the course of arguments has refuted these facts, and thus, petitioner cannot claim that she was dependent upon her deceased son. On the question of vires of impugned clause of FPS, 1964 as made applicable to 2006 Rules, learned counsel submitted that this is policy of the State Government to extend financial assistance to family members and Government in its wisdom has considered parents of an unmarried officer dependent whereas wife and children are considered dependent of a married officer. It is matter of policy and normally Courts refrain from interfering in the policy matters.

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Krishnamurthy 2006 (4) SCC 517, while dealing with validity and scope of Rule 38A of the Tamil Nadu Minor Mineral Concession Rules, 1959 in Para 15 expounded grounds to challenge subordinate Legislation which is reproduced as below:

"Whether the Rule is valid in entirety?

15. There is a presumption in favour of constitutionality

or validity of a sub-ordinate Legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a sub-ordinate legislation can be challenged under any of the following grounds:- a) Lack of legislative competence to make the subordinate legislation. b) Violation of Fundamental Rights guaranteed under the Constitution of India.

c) Violation of any provision of the Constitution of India.

d) Failure to conform to the Statute under which it is made or exceeding the limits of authority conferred by the enabling Act.

e) Repugnancy to the laws of the land, that is, any enactment.

f) Manifest arbitrariness/unreasonableness (to an extent where court might well say that Legislature never intended to give authority to make such rules).

The court considering the validity of a subordinate Legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate Legislation conforms to the parent Statute. Where a Rule is directly inconsistent with a mandatory provision of the Statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or nonconformity of the Rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the Parent Act, the court should proceed with caution before declaring invalidity" In Cellular Operators Association of India v. Telecom

( Regulatory Authority of India, (2016) 7 SCC 703, Hon'ble Supreme Court while holding Regulations framed under Telecom Regulatory Authority of India Act, 1997 as ultra vires adverted with its earlier judgments and held:- "Violation of fundamental rights

42. We have already seen that one of the tests for challenging the constitutionality of subordinate legislation is that subordinate legislation should not be manifestly arbitrary. Also, it is settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. (See Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India (1985) 1 SCC 641, SCC at p. 689, para 75.

43. The test of "manifest arbitrariness" is well explained in two judgments of this Court. In Khoday Distilleries Ltd. v. State of Karnataka (1996) 10 SCC 304, this Court held: (SCC p. 314, para 13) "13. It is next submitted before us that the amended rules are arbitrary, unreasonable and cause undue hardship and, therefore, violate Article 14 of the Constitution. Although the protection of Article 19(1)(g) may not be available to the appellants, the rules must, undoubtedly, satisfy the test of Article 14, which is a guarantee against arbitrary action. However, one must bear in mind that what is being challenged here under Article 14 is not executive action but delegated legislation. The tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected

5 to emanate from an authority delegated with the lawmaking power. In Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India (1985) 1 SCC 641, this Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned under Article 14 on the ground that it is unreasonable; `unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary'. Drawing a comparison between the law in England and in India, the Court further observed that in England the Judges would say, `Parliament never intended the authority to make such rules; they are unreasonable and ultra vires'. In India, arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. But subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution."

44. Also, in Sharma Transport v. State of A.P. [(2002) 2 SCC 188], this Court held: (SCC pp. 203-04, para 25) "25. ... The tests of arbitrary action applicable to executive action do not necessarily apply to delegated legislation. In order to strike down a delegated legislation as arbitrary it has to be established that there is manifest arbitrariness. In order to be described as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The expression "arbitrarily" means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone."

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14.

The Family Pension Scheme, 1964 is part of Punjab Civil Services Rules which have been framed in exercise of power conferred by proviso to Article 309 of the Constitution of India. The respondent-State of Haryana had initially adopted the Punjab Civil Services Rules, however, respondent-State w.e.f. 19.7.2016 has framed Haryana Civil Services (General) Rules, 2016. The respondent has also w.e.f. 19.7.2016 inserted

(( Haryana Civil Services (Pension) Rules, 2016 (for short 'Pension Rules, 2016'). Rules 7 of Pension Rules, 2016 provides that rules contained in Punjab Civil Services Rules, Volume II shall stand repealed. Rule 8 (Chapter II of Pension Rules, 2016) defines different expressions which includes expression 'family' for the purpose of family pension. Clause (B) of sub-rule 10 of Rule 8 which defines expression 'family' for the purpose of family pension reads as:

" 10. Family means- (A) XXXX XXXX XXX (B) for the purpose of family pension means- (i)(a) widow (widows wherever permissible under personal law) or widower, upto the date of re-marriage or death, whichever is earlier;

(i)(b) judicial separated wife or husband of a deceased Government employee, such separation not being granted on the ground of adultery and the person surviving was not held guilty of committing adultery; (i)(c) childless widow of a deceased Government employee who has got remarried provided her independent income from all other sources is less than or not equal to the minimum family pension prescribed by the State Government from time to time plus dearness relief thereon. In all such cases, she shall be required to give a declaration regarding her income from all other sources to the Treasury Officer and Head of Office once in every three months.

(ii) Failing (i) above, the eldest unmarried and dependent son(s) or daughter(s) upto the age of 25 years.

(iii) Failing (i) and (ii) above, the dependent eldest

(5 divorced or widowed daughter(s) upto the age of 25 years, upto the date of her marriage/re-marriage or till the date she starts earning livelihood, whichever is the earliest provided she should have been widowed or divorced before the date of expiry of eligibility of other existing family member for family pension.

(iv) Failing (i) to (iii) above, the dependent eldest daughter amongst unmarried/widowed/ divorced. daughters of above 25 years upto the date of her marriage/re-marriage or till the date she starts earning livelihood, whichever is earlier. In case of widowed/divorced daughter, she is widowed/ divorced before the date of expiry of eligibility of other family member for family pension.

(v) Failing (i) to (iv) above, son and daughter suffering from disorder or disability of mind or physically

O % (vi) Failing (i) to (v) above parents who were wholly dependent on the Government employee when he/she was alive provided their present combined income is less than the minimum family pension, prescribed from time to time, plus dearness relief thereon.

(vii) Failing (i) to (vi) above, unmarried physically disabled sibling (brother and sister) provided they were wholly dependent upon the deceased Government employee when he/she was alive.

Note 1.- For the purpose of this rule, "widow" means legally wedded wife of deceased Government employee.

Note 2.- Divorce by the Panchayat or Social Organizations shall not constitute a legal divorce.

Note 3.- Son/daughter includes children legally adopted under the

( Hindu Law or personal law of the Government employee residing with and wholly dependent upon his/her parent but does not include step children.

Note 4.- Dependent childless widow, children or parents who is drawing family pension shall submit a certificate to the pension disbursing authority once after every six months regarding their income, if any. Guardian shall also submit certificate on behalf of eligible family member regarding his income, if any." 15.

The respondent-State in exercise of powers conferred by proviso to Article 309 of the Constitution of India has framed

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5. (1) On the death of any Government employee, the family of the employee would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee in the normal course without raising a specific claim,--

(6 (a) For a period of fifteen years from the date of death of the employee, if employee at the time of his death had not attained the age of thirty-five years.

(b) For a period of twelve years till the date the employee would have retired from Govt service on attaining the age of superannuation, whichever is less, if the employee at the time of his death had attained the age of thirty-five years but had not attained the age of forty-eight years.

(C) For period of seven years or till the date the employee would have retired from Govt. service on attaining the age of superannuation, whichever is less, if the employee had attained the age of forty-eight years.

(2) The family shall be eligible to receive family pension as per the normal rules only after the period during which he receives the financial assistance as above is completed. (3) The family shall be eligible to receive family pension as per the normal rules only after the period during which he receives the financial assistance as above is completed. (4) Within fifteen days from the date of death of a Government employee, an ex-gratia assistance of twenty five thousand rupees shall be provided to the family of the deceased employee to meet the immediate needs on the loss of the bread earner.

(5) House Rent Allowance shall not be a part of allowance for the purpose of calculation of assistance. (6) All pending cases of ex-gratia assistance shall be covered under new rules. The calculation of the period and payment shall be made to such cases from the date of notification of these rules. However, the families will have the option to opt for the lump sum ex-gratia grant provided in the

(< Rules, 2003 or 2005, as the case may be, in lieu of the monthly financial assistance provided under the Haryana Compassionate Assistance to the Dependents of the Deceased Government Employees Rules, 2006.

(7) If any doubt arises relating to the application, interpretation and scope of these Rules, it shall be referred to the Government in the department of General Administration (In General Services-II Branch) whose decision thereon shall be final.

(8) The Haryana Compassionate Assistance to the Dependents of the Deceased Government Employees Rules, 2005, which are in force immediately before the commencement of these rules are hereby repealed: Provided that families will have the option to opt for the lump sum ex-gratia grant provided in the rules 2003 or 2005, as the case may be, in lieu of the monthly financial assistance provided under these rules:

Provided further that in all pending cases where the family exercises the option to receive the financial assistance under these rules the calculation of the period and payment shall be made from the date of notification of these rules." ;#% 6 &44' ;#% %$+% % %% + / 0%

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( Rule 5 (f) "Family for the purpose of compassionate financial assistance" means- (a) widow (widows wherever permissible under personal law) or widower, upto the date of remarriage or death, whichever is earlier; (b) judicially separated spouse of a deceased or missing Government employee, provided that such separation has not been granted on the ground of adultery and the person surviving was not held guilty of committing adultery;

(c) childless widow of a deceased or missing Government employee who has not remarried provided her independent income from all other sources is less than the minimum family pension prescribed by the State Government from time to time plus dearness relief thereon. In all such cases, she shall be required to give a declaration regarding her income from all other sources to the Head of Office once in every six months;

(ii) failing (i) above, the eldest unmarried and dependent son(s) or daughter(s) upto the age of twenty-five years; (iii) failing (i) and (ii) above, the dependent eldest divorced or widowed daughter(s) upto the age of twenty-five years, upto the date of her marriage/re-marriage or till the date she starts earning livelihood, whichever is the earliest provided she should have been widowed or divorced before the date of expiry of eligibility of other existing family member for compassionate financial assistance; (iv) failing (i) to (iii) above, the dependent eldest daughter amongst unmarried/widowed/divorced daughters of above twenty-five years, upto the date of her marriage/re-marriage or till the date she starts earning livelihood, whichever is

(; earlier. In case of widowed/divorced daughter, she should have been widowed/divorced before the date of expiry of eligibility of other family member for compassionate financial assistance;

(v) falling (i) to (iv) above, son and daughter suffering from disorder or disability of mind or physically crippled or disabled irrespective of his/her age provided they were wholly dependent upon the Government employee when he/she was alive;

(vi) failing (i) to (v) above, parents who were wholly dependent on the Government employee when he/she was alive provided their present combined income is less than the minimum family pension, prescribed from time to time, plus dearness relief thereon;

(vii) failing (i) to (vi) above, unmarried physically disabled sibling (brother and sister) provided they were wholly dependent upon the deceased Government employee when he/she was alive:

Note 1.-For the purpose of this rule, widow "means legally wedded wife of deceased Government employee.

Note 2-Divorce by the Panchayat or Social Organizations shall not constitute a legal divorce.

Note 3-Son/daughter includes children legally adopted under the Hindu Law or personal law of the Government employee residing with and wholly dependent upon his/her parent but does not include step children.

Note 4-It shall be the duty of person who is drawing compassionate financial assistance (son, daughter, parents, siblings or the guardian, as the case may be) to furnish a certificate to the disbursing authority, twice in a year, i.e. in the month of March and September every year, that she/he

5 or they have not started earning his/her or their livelihood. A similar certificate shall also be furnished by a childless widow after her re-marriage;"

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