- (1.) A letter was sent by registered post (local) on 12. 02. 2001 by the petitioner-Smt. Rukmani T. Bhagat, aged 75 years W/o Late Shri T. C. Bhagat retired Registrar of Rajasthan High Court, addressed to the then Chief Justice. It appears that this letter was placed before the then Chief Justice on 12. 02. 2001 and he passed an order on 23. 02. 2001 that this letter be treated as a writ petition and be posted before the CJ's Bench on 23. 02. 2001. Though this letter the petitioner sought directions to Government of Rajasthan to allow family pension at the rate of 30% of the minimum pay in revised pay scale of 16400-20000 effective from 1. 9. 96 for Registrar, Rajasthan High Court as allowed by Government of India vide order dated 17. 12. 1998 as per 5th Central Pay Commission recommendations on principle of equality under Article 14 of the Constitution of India. She came with the case that her husband-Shri T. C. Bhagat retired from the Government service on 17. 11. 1972 while he was holding the post of the Registrar, 1972 while he was holding he post of the Registrar, Rajasthan High Court in the selection scale 900-1800 with 24 years and 6 months service to his credit and that he had expired on 31. 10. 2000. The details have been given with regard to the pay scales of Registrar from 1976 to 1. 9. 96 as under:- From Scale 1976 1350-2200 1. 9. 81 1700-2600 1. 9. 86 3900-5300 1. 9. 87 5100-6300 with special pay 400 1. 9. 96 16400-20000
(2.) IT has been then stated that under memorandum dated 11. 06. 1998, the Director Pension and Pensioner Welfare Rajasthan, Jaipur vide Authority No. 106107 dated 3. 3. 99 revised the pension of her husband and her family pension by notional fixation in the pay scale (5100-6300 + Special pay 400) effective from 1. 9. 88 at Rs. 5500 (5100 + 400 special pay ). The 5th Central Pay Commission made certain recommendations for revision of pensions of existing pensioners/family pensioners and for implementation of 5th Central Pay Commission recommendations, the Government of India issued the following orders:- (a) O. M. No. 45/86/97/p/p 2 (A) Part II Dated 27. 10. 1997 (b) O. M. No. 45/86/pt. III Dated 10. 2. 1998 (c) F. 45 (10/98) P & PW (A) dated 17. 12. 98 (Copy enclosed as annexure-I) According to the petitioner, the recommendations of the 5th Central Pay Commission in paras 137. 14 and 134. 30 of its report were that the pensions so revised will not be less than 50% of the minimum of the revised pay scale and family pensions shall not be less than 30% of the revised corresponding pay scale to the scale from which pensioner retired. These recommendations were initially not accepted by the Government of India while issuing orders dated 27. 10. 1997 and 10. 02. 1998 as stated above. But, subsequently when large number of representations were received by the Prime Minister, the Government of India issued order dated 17. 12. 1998, a copy of which was enclosed with this letter as Annexure-1. Through this letter dated 17. 12. 1998, it was specified that pension of all pensioners with effect from 1. 1. 1996 irrespective of date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay introduced from 1. 1. 1996 of the post last held by the pensioner with the condition that the existing provisions in the rules governing qualifying service and minimum pension shall continue to be operative. Similarly, family pension with effect from 1. 1. 1996 shall not be less than 30% of the minimum pay in revised scale introduced with effect from 1. 1. 1996 of the post last held by the pensioner/deceased Government servant. This letter dated 17. 12. 1998 was meant for persons governed by Central Civil Services (Pension) Rules, 1972; the Government of India, therefore, wrote to the Chief Secretaries of the different States under DO No. 14021/5/93 AIS (II) dated 31. 12. 1998 for consent of the State Governments about extending of this benefit to All India Service Pensioners by amending Rule 18 and 22-B of All India Service (death-cum- retirement) Benefit Rules, 1958 indicating that if no reply is received within 15 days of the receipt of this letter, it will be presumed that the State Government had no objection. However, the Government of Rajasthan did not send any reply to the aforesaid DO and, therefore, All India Service State cadre pensioners, whose class officers in service are influential, succeeded in getting the amendment issued and deriving benefit of 50% 30, pensions as explained above. The Government of Rajasthan on the principle of equity extended the benefits at Par with All India Service State Cadre Pensioners/central Pensioners to its other pensioners also and as such, the benefit as per Government of India's order dated 27. 10. 1997 and 10. 02. 1998 had been allowed under the orders dated 21. 03. 1998 and 11. 06. 1998 respectively with a difference in effective date to be 1. 9. 1996 instead of 1. 1. 1996. The benefits as per Government of India's order dated 17. 12. 1998 were allowed to the State Cadre All India Service pre 1. 1. 1996 pensioners and family pensioners from the consolidated fund, but the other State pensioners/family pensioner are still suffering. A grievance was raised that had the State Government extended the benefits as per the Government of India's order dated 17. 12. 1998 on the lines it had been allowed to All India Service State cadre pensioners, the petitioner's husband during life time would have got pension at the rate of Rs. 6091/- per month. The petitioner stated that a loss of Rs. 387/- per month was suffered beside the usual D. A. from time to time for the period 1. 9. 1996 to 31. 10. 2000 and petitioner claimed that she was entitled to get the pension at the rate of 30% of 16400 i. e. Rs. 4920/- per month instead of 3185 per month and thus, she was suffering a loss of 1735/- beside D. A. admissible from time to time from 1. 11. 2000. The petitioner's case is that depriving the pre 1. 1. 1996 pensioners and family pensioners on death of pensioner/government servant from the benefits as allowed to state cadre All India Service Pensioners as per Government of India's order dated 17. 12. 1998 amounts to discrimination and that, it is arbitrary and violative of the Constitutional provision contained in Article 14 of the Constitution. The petitioner tried to illustrate this discrimination by giving the comparative position of a retired I. A. S. , officer vis-a-vis R. H. J. S. Officer, both retired in 1972. In case of I. A. S. Officers, revised selection grade from 1. 1. 1996 is 15100-18300 and the family pension allowed is Rs. 4530/- whereas in case of R. H. J. S. Officers revised selection selection from 1. 1. 1996 is 16400-20000 and yet the family pension is only Rs. 3185/ -. The implementation of the provisions of Government of India's order dated 17. 12. 1998 by Rajasthan Government has resulted in creating anamolies, as a result of which status of the family whose husband's revised pay scale is higher than that of an I. A. S. officer in lower scale, has been lowered down. Had it been implemented, she would have got family pension at the rate of Rs. 4920/- per month. In the letter, a reference has been made to D. S. Nakra's case decided on 17. 12. 1982 by the Supreme Court and it has been submitted that other States i. e. Delhi, Haryana, Punjab, Uttar Pradesh, Maharashtra, Tamil Nadu and West Bengal have already extended the benefits to their pensioners as per the Government of India's order dated 17. 12. 1998. It was also prayed in this letter that the petitioner was a 75 years old lady and wife of the deceased officer of Rajasthan Higher Judicial Service and while claiming exemption from appearing in person, the benefit for extending the benefits to pre 1996 pensioners as per Government of India's order dated 17. 12. 1998 was sought so as to get the family pension at the rate of Rs. 4920/- per month as against the present rate of Rs. 3185/- per month for the short period of ill-luck.
(3.) THIS letter petition when came up before this Court on 23. 02. 2001, in presence of the Additional Advocate General Shri R. N. Mathur, the petition was admitted the notice was issued to Director, Pension and Pensioner's Welfare, Rajasthan, Jaipur. A copy of the letter was directed to be furnished to Shri R. N. Mathur, learned Additional Advocate General for seeking instructions from the Government. It appears that Shri M. K. Sharma, Advocate entered appearance on behalf of the petitioner on 31. 07. 2001 and thereafter, the copy of the rely to the writ petitioner was furnished to him by the State of Rajasthan on 11. 09. 2001 and this reply and this reply and affidavit in support of the reply sworned on 17. 09. 2001 was filed in this Court by learned Additional Advocate General on 24. 09. 2001. In the meantime, on behalf of the petitioner, a rejoinder to the reply bearing date 18. 09. 2001 was filed in the Registry on 19. 09. 2001, a copy was furnished to the office of Additional Advocate General on 18. 09. 2001. thereafter, when the matter came up before the Court on 20. 09. 2001, this matter was assigned to this Bench. On 24. 09. 2001, when the matter came up before this Court, it was noticed that reply had been filed and rejoinder thereto, had already been filed and, therefore, the Registry was directed to include all the pleadings in the file and the matter was posted on 25. 09. 2001. On 25. 09. 2001, learned Additional Advocate General sought time to take further instructions and the matter was directed to be listed for final disposal on 29. 10. 2001. On 29. 10. 2001, the matter was adjourned to 20. 11. 2001. On 20. 11. 2001, the matter was again adjourned to 29. 11. 2001 on the request of learned Additional Advocate General. Thereafter, when the matter came up before the Court on 4. 01. 2002. It appears that on 20. 12. alongwith an affidavit dated 22. 11. 2001 sworned by the Deputy Director, Pension Department, Government of Rajasthan, Jaipur alongwith a zerox copy of the Cabinet order under signature of the Chief Secretary to the Government of Rajasthan was filed wherein it was decided that it was not possible for the Government to give the benefits as per the Government of India's order dated 17. 12. 1998. Thereafter, the matter has been heard on different dates and the arguments were concluded. From the documents which have been filed alongwith the rejoinder dated 18. 09. 2001, it appears that on 23. 12. 1997, a settlement was arrived at between the State of Rajasthan and the Provincial President and General Secretary of the Employees Federation in the matter of applying the recommendations of the 5th Central Pay Commission to the Government employees. On behalf of the State of Rajasthan, the signatory was Principal Secretary to the Government, Finance Department namely Shri Adarsh Kishore Mathur and Shri Udai Singh Rathore as provincial President of Employees Federation (Rathore) Group and the Joint Secretary Shri Virendra Mishra. This settlement shows that Government had taken 12 decisions and decision at item o. 8 was that the State Government had decided to implement the Central Government orders with amendments relating to pension and the pension of the pensioners of the State of Rajasthan shall also be amended and the amended pension shall be payable from 1. 06. 1997. This decision is also manifest in the document, Annexure-3, dated 27. 10. 1997. A reference may be made to Annexure-3 dated 27. 10. 1997 issued by the Ministry of Personnel, Public Grievances and Pensions Department of Pension and Pensioners Welfare, New Delhi in the matter of implementation of Government decision on the recommendations of the 5th Central Pay Commission - Revision of pension of pre 1996 pensioners/family pensioners etc. The decision at para No. 9 was that the arrears of increased pensions for the period 1. 01. 1986 to 31. 12. 1997, the option will be given to the pensioners to deposit the amount in General Provident Fund Amount by opening a fresh account for a period of five years or the amount of arrears be obtained in sixty regular monthly installments alongwith the new revised pension. Thereafter, on 21. 03. 1998, the Finance Department (Rules Division) of the Government of Rajasthan issued a memorandum and thereby, it was ordered that the pension/family pension of all the pre 1. 9. 1996 State pensioners/family pensioners be revised w. e. f. 1. 1. 96 in the manner indicated in the succeeding paragraphs of this memorandum. Thereafter, yet another memorandum dated 11. 06. 1998 was issued by the Finance Department (Rules Division) of Government of Rajasthan in the matter of revision of pension of pre 1988 pensioners/family pensioners etc. whereby the governor was pleased to order that the pension/family pension of all pre 1. 9. 1988 service pensioners/family pensioners hereinafter called pre 1988 pensioners/family pension as on 1. 9. 1996 under Rajasthan Service Rules as amended from time to time shall be revised in the manner indicated in the succeeding paragraphs of this memorandum. Mr. M. K. Sharma, Advocate appearing for the petitioner has submitted that there is no justification for not giving the benefit of the recommendations of the 5th Central Pay Commission and the amendments made therein and the Government of India's order issued in this regard on 17. 12. 1998, more particularly in the context of settlement which had been arrived at between the representatives of the Employees Federation and the representative of the State. He has also submitted that in case, the Government of India's order dated 17. 12. 1998 is not given effect to with regard to pre 1996 employees, it will create discrimination and the petitioner cannot be subjected to discrimination vis-a-vis other officers of Indian Administrative Service which are in the State cadre and it will be absolutely arbitrary exercise of the power, in the case, the benefits are not extended to the employees of the State. He has further submitted that date which has been chosen by the State Government in this regard is wholly arbitrary and the same is against the principles laid down by the Supreme Court in various decisions and he has submitted that the paucity of funds is no ground to defeat the claim, if it is otherwise justifiable. In support of his submissions, he has first of all placed reliance on the decision rendered in the case of D. S. Nakara & Ors. vs. Union of India (1 ). In para 15 of this judgment, the Supreme court has held that: " 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 classifications 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". ;