Petitioner, a widow, is claiming family pension. The question for consideration is whether the period spent by late Shri Ravishankar Gour, while in contract service before his regular appointment, can be taken into consideration for purposes of grant of pensionary benefits which period is being taken into consideration as pensionable service for supervisory officers under the same family pension scheme framed under State Bank of India Employee's Pension Fund Rules.

2. Petitioner's husband, late Shri Ravishankar Gour, worked from 14-8-1984 to 31-12-1986 on daily wages as messenger. Initially he was appointed on 1-4-1984 for three months. He worked till 27-7-1984. Again he was appointed as messenger from April 1985 to October, 1985. He was again appointed as a messenger on daily wages from 3-7-1986 to 27-12-1986. He was regularised as per order dated 31-12-1986. He was put on probation for six months and made permanent as per order dated 10-7-1987 (Annexure P/5). After he was confirmed, he met with his death on 2-9-1987.

3. Petitioner claimed family pension on the ground that deceased had rendered more than one year continuous service and, therefore, petitioner is entitled to family pension in accordance with Annexure P/3 to Staff Circular 81 of 1998. Reliance is also placed on another Staff Circular 70 (Annexure P/7) which provides for reckoning of temporary/contract service of officers appointed on contract basis and subsequently absorbed in bank service, to treat the service spent on contract for the purpose of qualifying service. Class (iii) of revised instructions contains that officers who have already retired, may be made eligible for pension subject to the eligibility conditions in Pension Fund Rules as a result of increased length of pensionable service and in their cases, gratuity paid by the bank be recovered. Rationale behind the circular is contained in the circular itself which provides that many representations from the affected officers had been received suggesting that their past service in the bank on contract basis should be reckoned for the purpose of seniority and other benefits. Many of these officers had also filed writ petitions in different High Courts and decision was taken to revise the instructions.

4. It is not disputed, that family pension scheme (Annexure P/6) is the same for all categories of employees. Petitioner claimed family pension on the ground that total service of the deceased was 2 years and 4 months and the period spent on contract/temporary service should be included as is being done in case of officers. The request made by the petitioner was turned down as per letter dated 4-2-2000 (Annexure P/10) on the ground that the deceased did not complete one year of qualifying service which is the minimum requirement after having been confirmed in service. Hence petitioner is not entitled for family pension. Petitioner filed another representation and contended that it was not necessary that only the service rendered after confirmation is to be counted, total period of service including temporary should be taken into consideration. Reliance was placed on Staff Circular 27 of 1970. For past temporary service, increments are required to be added and as per Shastri Award, while making payment of increments, provident fund is required to be deducted. Circular 70 of 1994-95 and Circular PER 117 of 1980 were also relied upon by the petitioner to contend that definition of continuous service includes contract and temporary service has been held to be continuous service which according to the petitioner should be counted for pensionable service.

5. Respondents, in their return, denied their liability and entitlement of the petitioner to receive family pension. They contend that Circular 70 of 1994-1995 (Annexure P/7) = R1, is applicable to all officers appointed on contract basis as Technical Officers, Engineers and Rural Development Officers for purposes of seniority, pension and leave benefits. Petitioner's husband before regular appointment was only a temporary messenger on contract basis and, therefore, petitioner is not entitled to benefits on the basis of aforesaid instructions.

6. It is not disputed that petitioner's husband was regularly appointed on 31-12-1986 and was confirmed vide order dated 1-7-1987 and had completed the period of probation successfully and expired on 2-9-1987. He worked as a confirmed employee only for 2 months. As per respondents, the minimum pensionable service is that of one year as a confirmed employee. They rely on the Family Pension Scheme (Annexure P/6) = R-2. Even if the period of probation is included, deceased had put total service of 9 months on the confirmed post. Respondents rely on State Bank of India Employees Provident Fund Rules. Rules 7 and 8 are reproduced below:-

"7. Save as provided in rule 8, every permanent employee (including a permanent part time employee who is required by the Bank to work for more than six hours a week) in the service of the Bank who is entitled to pension benefits under the terms and conditions of his service, shall become a member of the Fund from -

(a) the date from which he is confirmed in the service of the Bank, or

(b) the date from which he may be required to become a member of the Fund under the terms and conditions of his service."

8. Save as provided in rule 25, no employee shall be eligible to become a member of the fund:-

(a) if he is member of the Imperial Bank of India Employees' Pension and Guarantee Fund or if he is engaged in any country outside India and appointed for service in such country;

(b) if he is below 21 years of age;

(c) if he is over 38 years of age; or

(d) whose service is specially declared by the bank to be non-pensionable."

7. Rule 22 is also pressed into service by the respondents which is quoted below :-

"22(i) A member shall be entitled to a pension under these rules on retiring from the Bank's service -

(a) after having completed twenty years' pensionable service provided that he has attained the age of fifty years;

(b) after having completed twenty years' pensionable service, irrespective of the age he shall have attained, if he shall satisfy the authority competent to sanction his retirement by approved medical certificate or otherwise that he is incapacitated for further active service;

(c) after having completed twenty years pensionable service, irrespective of the age he shall have attained at his request in writing;

(d) after twenty five years' pensionable service;

(ii) A member who has attained the age of fifty five years or who shall be proved to the satisfaction of the authority empowered to sanction his retirement to be permanently incapacitated by bodily or mental infirmity from further active service (such infirmity not being the result of irregular or intemperate habits) may, at the discretion of the trustees, be granted a proportionate pension.

(iii) A member who has been permitted to retire under clause 1 (c) above, shall be entitled to proportionate pension.

8. It is not disputed by the respondents that family pension scheme is in force which came into force with effect from 1-1-1987. Case of the respondents is that the Circular (Annexure P/7) = R-l is not applicable to the messengers, but is applicable to the category of officers. Family Pension Scheme P/6 =R/2 is the same for both is not disputed in the return.

9. Learned counsel for the petitioner submits that the period spent by the petitioner's husband in contract/temporary service should be counted. He was appointed lastly on 3-7-1986 and continued to serve till his regularfcation on 31-12-1986. Even if this period is counted which is in continuation with the regular appointment, petitioner's husband had completed more than one year of service by the time he died; thus family pension cannot be denied to the petitioner. It is her further case that there is no requirement under the scheme that a person should have completed one year as a confirmed employee. It is not disputed that petitioner's husband was appointed on regular basis. Thus, the period spent by him in contract service should be included as is being done in case of officers and other category of employees mentioned in Circular (Annexure P/7 = R/1). Respondents cannot discriminate between one class of pensioners particularly when the family pension scheme is the same under common SBI Employee's Pension Fund Rules. Under, the same scheme of family pension, two categories of employees cannot be treated differently. Category of pensioner is one under the fund and the family pension scheme.

10. Shri V.S. Shroti, learned counsel for respondents, submits that qualifying service should have been completed by the deceased so as to enable the petitioner to claim family pension; deceased could not complete one year of pensionable service. Plea of discrimination is available only in equals; there cannot be any comparison of officers with subordinate staff and under Article 16 of the Constitution of India, reasonable classification can always be made. He submits that simply on the basis that contract period is being counted for officers, petitioner cannot claim that service rendered by her husband on contract basis should be counted, as he was member of subordinate staff.

11. The Family Pension Scheme (Annexure P/6), in para 1, provides as under:-

"FAMILY PENSION SCHEME :

1. The scheme shall apply to every confirmed employee who is a member of the Imperial Bank of India Employee's Pension and Guarantee Fund or the State Bank of India Employee's Pension Fund and who (i) dies while in service after putting in a minimum pensionable service of one year, or (ii) dies after retirement from service and is on the date of death, drawing pension. The scheme will come into effect from 1-1-1987 and will also cover pensioners who were surviving on that date and were drawing pension. The benefit of family pension may also be extended from 1-1-1987 to the family of a member who died earlier while in service after putting in a minimum pensionable service of one year or who died earlier after retirement from service and was, on 'the date of death, drawing pension on the same terms and conditions as mentioned herein."

A bare reading of the aforesaid para 1 shows that every confirmed employee who dies while in service after putting in minimum pensionable service of one year or dies after retirement from service and is, on the date of death, drawing pension, benefit of family pension is also extended to the family of a member who died earlier. As per para 3, family pension is payable to the widow of the employee. As per Rule 7, every permanent employee in service of a bank who is entitled to pensionary benefits under the terms and conditions of service, shall become member of the fund from the date from which he is confirmed in service of the bank or the date from which he may be required to become member of the fund under the terms and conditions of the service. The requirement appears to be that one should be in permanent service to claim the benefit of pension scheme. Rule 7 of the State Bank of India Employee's Pension Fund Rules does not provide that an employee should have completed one year of service after confirmation. It does not bar counting of service rendered earlier on temporary basis before confirmation. Rule 8 contains the provision where an employee shall not be eligible to become a member of the fund. It is not provided in the Family Pension Scheme from which date the minimum pensionable service of one year has to be counted. However, the scheme has been made applicable to every confirmed employee who is a member of the Imperial Bank of India Employee's Pension and Guarantee Fund, or the State Bank of India Employees' Pension Fund.

12. Staff Circular No. 27 of 1970 provides that increments are admissible for the temporary employment period. Employer concerned would be granted the benefit of one increment in respect of each period of 12 months excluding breaks and the balance of temporary service. As per Circular No. 117/1980 for the purpose of Section 25 B of Industrial Disputes Act so as to constitute continuous service it would be sufficient if a workman worked for 240 days within a calendar year (12 months) any time during 12 months.

13. As per Chapter Item No. 15 of Pension Scheme of Shastri Award in para 414 it was laid down that for award staff employees pension contribution should be stopped. Rule 9 of the SBI Employee's Pension Fund Rules provides for contribution; first proviso lays down no contribution shall be collected from workman as defined under Section 2(j) of the Industrial Disputes Act, 1947 so long as he continues to be entitled to a non-contributory pension in terms of any award or settlement. Rule 9(i) of the Rules reads as under :-

9(i) Subject as hereinafter provided every employee shall, as from the date of his admission to the fund, contribute to the fund every month an amount equal to five percent of his salary subject to a maximum contribution of Rs. 90/- per mensem. In respect of any period in which the full salary of an employee is not payable to him, his contributions shall be calculated on his reduced salary, if any. The contributions shall be made by deduction from salary and shall cease when an employee ceases to be in pensionable service in terms of rule 20.

Provided that no contributions shall be collected from a member who is a "workman" as defined under Section 2(s) of the Industrial Disputes Act, 1947 only so long as he continues to be entitled to a non-contributory pension in terms of any Award or settlement."

14. Respondents have taken a decision as contained in Staff Circular 70, issued on 6-3-1995 (Annexure P/7 = R/1) with respect to Staff Supervising Officers appointed on contract basis and subsequently absorbed in bank service and decided to extend the under-noted benefits to them:

REVISED INSTRUCTIONS

The Executive Committee of the Central Board, during their meeting held on 5-1-1995, have approved that as a model employer, we may treat the past service on contract basis of officers appointed as such and who were eventually absorbed as regular officers as continuous service in the Bank and extend the undernoted benefits :-

(i) To admit them to the membership of Provident Fund and Pension Fund from the date of engagement on contract basis if found eligible in terms of the relevant Fund Rules.

(ii) To treat the service spent on contract for the purpose of seniority.

(iii) Officers who have already retired, may be made eligible for pension subject to the eligibility conditions in the Pension Fund Rules as a result of increased length of pensionable service, and in their cases, service gratuity paid by the Bank be recovered.

(iv) The benefit of contract service for refixation in pay also be extended to these officers."

15. It is clear from P/7 = R/1 that the period spent on contract service is being counted for the category of officers and supervising officers appointed on contract basis and subsequently absorbed in bank service. Their past service has been treated as continuous service in bank and they have been made eligible for pension and the period spent on contract in past is being counted for increased length of pensionable service. The benefit has been extended retrospectively. Family Pension Scheme is the same, S.B.I. Employees Pension Fund Rules is common for such officers and subordinate staff of the kind of petitioner's husband. Pensioners form one class no differentiation exist in Employees Pension Fund Rules. Thus, it is a case where the benefit of past continuous service is being given under the same scheme to the one category of employees, i.e. supervising officers, but not to the category of subordinate employees like messengers. Question is when the scheme is the same, whether every pensioner falling under it has to be treated alike. For the purpose of interpreting, family pension, whether scheme contained in Annexure-P/6 can be applied differently to supervising officers and employees of subordinate staff like petitioner's husband. Whether every pensioner who has to receive the benefit of family pension scheme, has to be treated alike. It is not the case where two different scheme are applicable to different sets of employees. The scheme is one and the same whether it can be applied differently to officers and the category of employees who are poorest of poor and whether they can be deprived of the benefit of computation of length of service rendered by them on contract where it is being counted with retrospective effect for supervising staff as per Annexure-P/7.

16. Deceased workman rendered the contract service lastly as per certificate Annexure P/3 with effect from 3-7-1986 to 22-12-1986; artificial break of 2 days was given and thereafter he was regularly appointed on 31-12-1986 as per order Annexure P/4. He was a confirmed employee having been confirmed on 1-7-1987, as per order Annexure P/5. Thus, he fulfilled the criteria of confirmed employee which is the basic criteria contained in the Family Pension Scheme, Annexure P/6. Only question is whether period spent on contract can be counted and can it be held that deceased had completed the minimum pensionable service of one year, counting the period of contract service as is being done in case of supervising officers as per Annexure P/7= R/1. It is also to be considered whether mini classification created amongst pensioners who form one class is permissible.

17. In the instant case undisputedly pension fund is one for all categories of employees; benefit has been extended of reckoning contract service with retrospective effect of counting past service to supervising officers appointed on contract basis and absorbed in the bank service. They are not forming any different class under the pension scheme, pension fund/rules are common for all categories of employees they form one class of pensioners. In D. S. Nakara and others vs. Union of India, (1983) 1 SCC 305, the question was amount of pension which was computed on available formula could have been further enhanced on the basis of subsequent more beneficial formula, and whether it could have been denied only on the ground that they had retired prior to the date on which such enhanced computation of pension was made available to pensioners. Supreme Court considered primarily that the pensioners of Central Government form a class for the purpose of pensionary benefits and there could not be mini classification within the class designated as pensioners.

18. In case of D. S. Nakara and others vs. Union of India, AIR 1983 SC 130, in para 33, the Supreme Court held as under:-

"33. Recall at this stage the Preamble, the floodlight 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 sometime.....

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 ramifications. The principle 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 a 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 Ph. D., but the pursuit must be by those who have the necessary intelligent 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 (illegible) taken must be directed, and must be so interpreted as to take the society one step towards the goal."

19. Liberalized formula has to be applied to every retiree equally; there cannot be further classification. It is not a new scheme; it is only revision/classification of existing same scheme. It is applied to count past service to supervisory officers only whereas all pensioners of scheme form one class. Scheme does not distinguish hence every pensioner of the scheme has to be treated equally in the matter of upward revision of existing scheme which was the case in D. S. Nakara (supra). Any modification in qualifying service made with a view to make it more beneficial in terms of quantum of can also be regarded as liberalization or upward revision of existing pension scheme. If, however, change, is not confined to the period of service but it extends or relates to a period prior to service then it would assume different character. Any revision of formula has to be applied to all pensioners under the scheme; there cannot be any discrimination. In State of Punjab vs. Justice S. S. Dewan and others, (1997) 4 SCC 569, the Supreme Court held that:-

"Conceptually, pension is a reward for past service. It is determined on the basis of length of service and last pay drawn. Length of service is determinative of eligibility and the quantum of pension. The formula adopted for determining last average emoluments drawn has an impact on the quantum of pension. D. S. Nakara case involved the change of formula for determining average emoluments and it was treated, as liberalisation or upward revision of the existing pension scheme. On parity of reasoning it can be said that any modification with respect to the other determinative factor, namely, qualifying service made with a view to make it more beneficial in terms of quantum of pension can also be regarded as liberalisation or upward revision of the existing pension scheme. If, however, the change is not confined to the period of service but extends or relates to a period anterior to the joining of service, then it would assume a different character. Then it is not liberalisation of the existing scheme but introduction of a new retiral benefit."

Whether past service can be counted for some and benefit denied to others for pension purpose was considered in R. L. Marwaha vs. Union of India and others, (1987) 4 SCC 31, where ex Government servants were absorbed by the autonomous bodies could be treated differently while granting benefit of counting service for computing pension, it was held that all persons should be treated similarly. All Government servants who were pensioners formed same class then if extra benefit has to be given should be given to all. They were held entitled to similar treatment. In T. S. Thiryvengudaman vs. Secy to Government of India, (1993) 1 SCC 174 = (1993) 2 SLR 34 = (1993) 1 SCR 1078 the restriction on applicability of the revised pensionary benefits from a given date was held to be unfair and unreasonable. The emphasis was all ex-government servants formed same class of pensioners, whenever additional pensionary benefits were made available, it should be made available to all the members, mini classification is not permissible. In M. C. Dhingra vs. Union of India, (1996) 7 SCC 564 = AIR 1996 SC 2963 an employee who was serving in the State service on temporary basis was subsequently selected in Central Government service; he retired on 1-2-1973; question arose of clubbing State service; cut off dated 31-3-1982 was fixed to count such benefit as per circular dated 31-3-1982 was held to be arbitrary; it was held to be discriminatory. It was held that appellant was forming same class of pensioners; additional benefit for computation of pension of temporary service on the basis of subsequent circular could not be denied to him ancl denial would be arbitrary and fall on the touch stone of Article 14 of the Constitution of India. The Supreme Court held in paragraph 4 that:-

"It is seen that though the appellant had retired on February 1,1973, since the question of tagging the previous service rendered in the State Government on temporary basis and the similar cases are pending, the Government had taken a decision on March 31st, 1982 to tag the previous service for computation of the pension. Learned counsel appearing for the respondents contended that clause 4 of the abovesaid Circular is one of the conditions which prescribes that it would be applicable to the Government servants who retired from that date, namely, March 31, 1982. Since the appellant had retired on February 1, 1973, he is not eligible. We find no force in the contention. All the persons who rendered temporary service prior to their joining the Government of India service have been given the benefit of fixation of the pension payable by tagging the temporary service. The cut-off date is arbitrary violating Article 14 of the Constitution of India. Having grouped all the similar circumstanced employees, fixing the cut-off date and giving benefit to those who retired thereafter is obviously arbitrary. In similar circumstances, following the ratio in D. S. Nakara vs. Union of India, ( 1983) 1 SCC 305 = AIR 1983 SC 130, this Court held in the case of R. L. Marwah vs. Union of India, ( 1987) 3 SCR 928, that such a restriction is arbitrary violating Article 14. On the facts and circumstances, we find that the restriction imposed in clause 4 of the Circular is violative of Article 14. It is, therefore, unconstitutional. However, the appellant will be entitled to the pro rata pension from March, 1982."

What emanates that temporary service/contract service must be counted for all pensioners alike; they have to be treated as one class.

20. In V. Kasturi vs. Managing Director, State Bank of India, Bombay and another, (1998) 8 SCC 30, question arose of consideration of the pension scheme of State Bank of India. Their Lordships of Supreme Court summed up following legal position; in para 21,22 and 23 laying down that:-

"It is now time for us to take stock of the situation. From the aforesaid resume of relevant decisions of this Court spread over the years to which our attention was invited by learned counsel for the respective parties, the following legal position clearly gets projected. Category I

If the person retiring is eligible for pension at the time of his retirement and if he survives till the time of subsequent amendment of the relevant pension scheme, he would become eligible to get enhanced pension or would become eligible to get more pension as per the new formula of computation of pension subsequently brought into force, he would be entitled to get the benefit of the amended pension provision from the date of such order as he would be a member of the very same class of pensioners when the additional benefit is being conferred on all of them. In such a situation, the additional benefit available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred on all the members of the same class of pensioners who had survived by the time the scheme granting additional benefit to these pensioners came into force. The line of decisions tracing their roots to the ratio of Nakara case would cover this category of cases.

Category II

However, if an employee at the time of his retirement is not eligible for earning pension and stands outside the class of pensioners, if subsequently by amendment of the relevant pension rules any beneficial umbrella of pension scheme is extended to cover a new class of pensioners and when such a subsequent scheme comes into force, the erstwhile non-pensioner might have survived, then only if such extension of pension scheme to erstwhile non-pensioners is expressly made retrospective by the authorities promulgating such scheme; the erstwhile non-pensioner who has retired prior to the advent of such extended pension scheme can claim benefit of such a new extended pension scheme. If such new scheme is prospective only, old retirees non-pensioners cannot get the benefit of such a scheme even if they survive such new scheme. They will remain outside its sweep. The decisions of this Court covering such second category of cases are : Commander, Head Quarter vs. Capt. Biplabendra Chanda and Government of T. N. vs. K. Jayaraman and others to which we have made a reference earlier. If the claimant for pension benefits satisfactorily brings his case within the first category of cases, he would be entitled to get the additional benefits of pension computation even if he might have retired prior to the enforcement of such additional beneficial provisions. But if on the other hand, the case of a retired employee falls in the second category, the fact that he retired prior to the relevant date of the coming into operation of the new scheme would disentitle him from getting such a new benefit."

21. The case of the present petitioner falls in the category II as beneficial umbrella is extended to cover contract period of service which has been extended by Bank to be counted from retrospective effect; past service rendered on contract has to be computed for officers and pension refixed even if some more persons gets benefits, it has to be given to them; it is to be emphasised that here deceased was member of pension fund and was given permanent status on confirmation. Thus widow is entitled to same treatment in the matter of computation of pensionable service; there cannot be mini classification created when family pension scheme is the same. Employees pension fund rules are one. Pensioners under the scheme and rules form one class and officers also have been retired are made eligible for pension subject to eligibility conditions in the pension fund rules as a result of increased length of pensionable service as per instruction contained in P/7. In State of W. B. vs. Rattan Behari Dey (1993) 4 SLR 786 = (1993) 4 JT 504 employer right to revision of pay scale, terminal benefits was upheld subject to without bringing discrimination.

22. On touch stone of various decisions quoted above, I find no rationale and permissible basis for any discrimination for the applicability of Family Pension Scheme in counting the contract service to a category of officers and not to menials. Such mini classification is impermissible. On the consideration of concept of socio-economic justice underlying the pension scheme, it cannot be said that classification is reasonable and permissible. Eligibility criteria under the same pension scheme cannot be applied differently to different category of employees. Family pension is normally claimed by a widow/minor person. Pensioners, thus, form a class and particularly when the scheme is the one; fund is one; widows/dependents have to be treated similarly. It would have been a different situation had different scheme been in force for family pension of officers and subordinate staff of the category in question.

23. In Municipal Corporation Delhi vs. Female Workers (muster roll) and others (2000) 1 SCSLJ 287 = (2000) 2 ATJ 217, it was held that maternity claim could not be denied to muster roll woman employees on the ground that they were not regularized. There has to be some rationale behind classification which is sought to be created.

24. In Dhanraj vs. State of Jammu and Kashmir, AIR 1998 SC 1747 the denial of the pensionary benefits on the ground of retirement before 9-6-1981 was held not proper. The temporary service was also to be counted, but cut-off date was fixed which was held to be arbitrary. The Supreme Court in para 14 of the report held as under :-

"14. Even otherwise, we do not find any justifiable criteria for the State Government to draw the line between those who retired earlier and those retired after 9th June, 1981. Both such set of employees were eqully placed in the same Undertaking/Corporation temporary in character and all having served in the organisations for more than 20 years. In fact, appellants have served with the Government for more than 30 to 40 years. The person serving for such a long period earns his legitimate expectation. It is not something which he seeks as a begging bowl. It is inappropriate for a State Government to take up a stand to get its own order to be held illegal, by giving restrictive interpretation to deny benefit to its own employee who had worked for such a long period. In fact, in the Constitution Bench decision of this Court in D. S. Nakara vs. Union of India, (1983) 1 SCC 305 : AIR 1983 SC 130, this Court held that criterion of date of enforcement of the revised scheme entitling benefits of the revision to those retiring after specified date while depriving the benefits to those retiring prior to that date was violative of Article 14. Even otherwise, while considering the question of grant of pensionary benefits the State has to act to reach the constitutional goal of setting up a socialist State as stated and the assurance as given in the Directive Principles of State Policy. A pension is a part and parcel of that goal, which secures to a person serving with the State after retirement of his livelihood. To deny such a right to such a person, without any sound reasoning or any justifiable differentia would be against the spirit of the Constitution. We find in the present case the stand taken by the State Government to be contrary to the said spirit. In the aforesaid D. S. Nakara (supra), this Court has very clearly recorded the following :-

"Para 36 - Having set out clearly the society which we propose to set up, the direction in which the State action must move, the welfare State which we propose to build up, the constitutional goal of setting up a socialist State and the assurance in the Directive Principles of State Police especially of security in old age at least to those who have rendered useful service during their active years, it is indisputable, nor was it questioned, that pension as a retirement benefit is in consonance with and in furtherance of the goals of the Constitution. The goals for which pension is paid themselves give a fill up and push to the policy of setting up a welfare State because by pension the socialist goal of security of cradle to grave is assured at least when it is mostly needed and least available, namely, in the fall of life."

25. In Kanta Devi vs. Union of India, (1994) 5 SLR 279, family pension was denied on the ground that servicemen did not marry while in service but married after retirement. The provision debarring family pension to widow was held to be arbitrary. There has to be some reasonable basis to treat family differently which is not obtainable in the instant case, it is not provided by pension scheme itself.

26. Independent of the plea of discrimination urged between the officer and other subordinate staff employees, in my opinion, the petitioner fulfils the criteria of provision as firstly he was member of pension fund, he was in the permanent/regular service of the bank and temporary service rendered by him on contract basis has to be counted as continuous service. Scheme nowhere debars computation of the period of temporary/continuous service.

In Ramlal vs. Union of India, (1996) 10 SCC 164, ad hoc/temporary service was counted towards pensionary benefits. In para 3 of the report (SCC) it was held :-

"3. At the time of termination, the petitioner was an ad hoc employee with temporary status and he was put back into the status on his reinstatement. When he was medically examined he was appointed from the date of his reinstatement. In fact, they have done justice to him. Had it been a case of regular appointment, he could not be put back into the status from the date of his initial appointment according to the rules. He is entitled to the permanent status after reinstatement. That status was given to him. Accordingly, we do not find any illegality in the order passed by the Tribunal. However, by operation of Rule 251 1(c) of IREM, the petitioner is entitled to the pensionary benefits treating the temporary service as a qualifying service for pensionary benefits."

27. Learned counsel for respondents placed reliance on the decision in case of Imperial Bank of India Pensioner's Association and others vs. State Bank of India and others, AIR 1989 SC 1049, in which differential treatment to India based pensioners was taken into consideration and the Supreme Court held that London based employees constitute a class for themselves, therefore, it could not be said that in rule 18, as was proposed to be amended, there is discrimination in the same class and the proposed amendment substantially altered to the advantage of the petitioner who are India based I.B.I, pensioners. The question in the said case was applicability of rule 18. India based pensioners, before amendment of the rule, were entitled to pension at the rate of one sixtieth part for every year's service of the average monthly substantive salary drawn during the last 5 years, whereas London based pensioners were entitled to pension to one sixtieth part for every year service on the date of retirement. The question was of fixation of maximum pension ceiling.

28. In case of Executive Engineer, PSEB and others vs. Teja Singh, (2000) 10 SCC 15, the employee was member of work charged establishment and not entitled to pension under Punjab Civil Service Rules. He was given benefit of Employee's Provident Fund Scheme which was withdrawn by him. In the instant case, petitioner's husband was member of permanent establishment and Family Pension Scheme is applicable. Thus, the above decision is of no avail to the case of the respondents and is distinguishable.

29. Learned counsel for respondent has also relied on the decision of the Supreme Court in case of Union of India and others vs. Rabia Bikaner etc., AIR 1997 SC 2843. In that case, minimum requirement of service was one year in temporary post. This was a case of a casual labourer who died after putting in six months" service. His widow claimed entitlement to pension under the Family Pension Scheme for Railway Employees, 1964. The decision turns on the Family Pension Scheme, 1964 framed by the Railways and is based on interpretation of the scheme of the railways. However, it is pertinent to mention that in Rabia case (supra) none of the employee who was given temporary post, was appointed in the regular establishment. In some cases, they were not even eligible for screening, because the post itself became available after the death, in the peculiar circumstances of the said case, it was held that the respondent widows are not eligible for family pension benefits as one of employee was in regular establishment. In the instant case, the scheme which is framed by the bank appears to be different. It applies to the confirmed employees, but it does not say that prior period of continuous service cannot be counted. There is no bar for counting it. Respondents are themselves counting it for pensioner of the category of officers as per their decision in Staff Circular 70 (Annexure-P/7) = R/1). Hence, question is whether all pensioners are to be treated alike.

30. Learned counsel has further relied on the decision of the Supreme Court in case of Pemaram vs. Union of India and another, (2000) 10 SCC 546. The question before the Supreme Court was consideration of rule 13-B of Central Civil Services Pension Rules, 1972 which bars counting of service rendered before attaining the age of 18 years. Their Lordships held that provisions of Rule 13-B would get attracted to an employee under the BSF services and, therefore, any service rendered by him in the BSF prior to attaining the age of 18 years cannot be held to be a part of qualifying service for determining the pension of the employee. But in the instant case, there is no such provision and the question is of interpretation of the scheme and applicability of the scheme by counting the period of contract service for all employees alike. There is no specific bar in Pension fund, Rule 7 quoted above and in the Family Benefit Scheme. Thus the decision in Pemaram (supra) is not applicable to the instant case.

31. In case of Union of India and others vs. Dr. Vijayapurapu Subbayamma, (2000) 7 SCC 662, the question was considered of eligibility for pension, norm of requisite qualifying service was reduced with effect from the specified date. Their Lordship held that a person who retired prior to that date without satisfying the norm in force at that time would not become eligible for pension by virtue of such reduction in the norm. In the instant case, there is no such date. The scheme (Annexure-P/6) does not bar counting of the period spent on contract and circular P/2 = R/7 provide for it to one section of employees. Every confirmed employee is entitled for pension subject to pension fund rules. Pensionary service has not been defined and the period of contract service is being taken into consideration with retrospective effect for supervising officers that has to be taken into consideration for other employees alike to whom the pension scheme is applicable as pensioners form a class, no further mini classification is permissible.

32. In case of Union of India and others vs. No. 664950 IM Havildar/Clerk S. C. Bagari, (1999) 3 SCC 709, the question was differential treatment in pay, perks and other privileges of the officers in army, but not to non-commissioned personnel like Havildar/Clerk. The classification was held not to be arbitrary. As already mentioned above- at the cost of repetition it has to be reiterated here that Family Benefit Scheme and pension fund is one and no difference is created into categories. The question is whether officers and subordinate staff can be treated differently in extension and computing the period spent on temporary/contract service under same scheme.

33. In case of Union of India and others vs. K. G. Radhakrishna Panickar and others, (1998) 5 SCC 111, temporary status was conferred with effect from 1-1-1981 which was accepted by the Supreme Court in Inder Pal Yadav's case. Before acceptance of the scheme, benefit of temporary status was not available to project casual labour. In view of the said material fact, it was held by their Lordships of the Supreme Court that service rendered as project casual labour by employees who were absorbed on regular, permanent/temporary posts prior to 1-1-1981, should not be counted for purposes of retiral benefits. In the instant case, question for consideration is different. As per the scheme, petitioner's husband was confirmed employee and the scheme does not bar counting of the period spent on contract service which has to be counted as continuous service.

34. The upshot of the aforesaid discussion is that the family pension is admissible to the petitioner, her husband was a confirmed employee and he died while in service after putting in one year of the minimum pensionable service, as the period of service rendered by him on contract basis has to be counted, as is being counted for the supervising officers. Rule 7 of the State Bank of India Employees Provident Fund Rules provides entitlement to a confirmed permanent employee which the petitioner's husband was within the meaning of Rule 7. Thus, the petitioner is entitled for family pension available as per the scheme Annexure-P/6.

35. The result is that the writ petition is allowed. The decision of the State Bank of India dated 4-2-2000 (Annexure P/10), denying family pension to the petitioner is quashed. Respondents are directed to give the family pension to the petitioner in accordance with the Scheme (Annexure P/6) within 3 months from the date of this order. Costs on parties.

Writ petition allowed.