Ranganath Misra, J.— Each of these two writ petitions under Article 32 of the Constitution is by the widow of the respective pensioners. Since family pension under the rules has not been given to them, they have asked for a mandamus to the respondent Union of India to grant such pension in terms of the pension scheme applicable to the category to which the husbands of the respective petitioners belonged.
2. Petitioner Smt Bhagwanti is the widow of an ex-Subedar of the Indian Army. Her husband after serving for 18 years retired on 3-8-1947 and was given pension. In 1955, his wife died and in 1965 he was married to the petitioner. The Subedar died in September 1985 in an accident. Petitioner who has two minor children applied for family pension and the same has not been granted.
3. The petitioner in the connected writ petition is the wife of a retired railway employee. Her husband took voluntary retirement at the age of 44 in November 1979. Petitioner got married to her husband in 1981 and has a daughter born in 1984 out of the said wedlock. Petitioner's husband died in 1986. The petitioner applied for family pension but by a letter dated 3-8-1988, her application was rejected by saying: “It has not been found possible to include wife of a government servant who had married after retirement in the definition of ‘family’ for grant of family pension”.
4. Counter-affidavits have been filed in both the writ petitions. In the first case, in the return made by Captain N.K Vishwakarma from the Office of Records AMC, Lucknow in para A, it has been stated that pension has been refused as petitioner's marriage was after retirement of the Subedar. In the connected matter, the Senior Personnel Manager of the South-Central Railway has placed reliance on the definition of “family” occurring in Rule 54(14)(b) of the Central Civil Services (Pension) Rules, 1972. As far as relevant, the definition reads thus:
“(b) ‘Family’ in relation to a government servant means—
(i) wife in the case of a male government servant, or husband in the case of a female government servant, provided the marriage took place before retirement of the government-servant.
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(ii) son who has not attained the age of twenty-one years and unmarried daughter who has not attained the age of thirty years, including such son and daughter adopted legally before retirement but shall not include son or daughter born after retirement.”
5. The common stand of the Union of India in the two cases, therefore, is that family pension would not be admissible to spouses who get married after the retirement of the government servant, nor to children born after such retirement.
6. The only question for consideration in these two writ petitions, therefore, has two facets: (i) whether the spouse — man or woman, as the case may be — married after the retirement of the government servant concerned can be kept out of the definition so as to deprive him from the benefit of the family pension, and (ii) whether offspring born after retirement are entitled to benefits of such pension.
7. In D.S Nakara v. Union of India (1983) 1 SCC 305, 1983 UPSC 263, (1983) 2 SCR 165 a Constitution Bench of this Court at p. 185 of the reports observed:
“... pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to ageing process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus, the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to old age.”
In Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330, 1971 Supp SCR 634 it was held by this Court:
“[T]he payment of pension does not depend upon the discretion of the State; but, on the other hand, payment of pension is governed by the Rules and a Government servant coming within the Rules is entitled to claim pension.”
In Poonamal v. Union of India (1985) 3 SCC 345, (1985) 3 SCR 1042 it was pointed out:
“Where the government servant rendered service, to compensate which a family pension scheme is devised, the widow and the dependant minors would equally be entitled to family pension as a matter of right. In fact, we look upon pension not merely as a statutory right but as the fulfilment of a constitutional promise inasmuch as it partakes the character of public assistance in cases of unemployment, old age, disablement or similar other cases of undeserved want. Relevant rules merely make effective the constitutional mandate. That is how pension has been looked upon in D.S Nakara judgment (1983) 1 SCC 305, 1983 UPSC 263, (1983) 2 SCR 165.”
8. Admittedly, the definition of “family” as it stands after amendment excludes that spouse of the government servant who has got married to such government servant after his/her retirement and the children born after retirement also stand excluded. Petitioners have challenged the stand of the Union of India and the definition in the Pension Rules as arbitrary and discriminatory. It has been contended that if family pension is payable to the widow or the husband, as the case may be, of the government servant, the category which the definition keeps out, namely, those who have married after retirement and off-spring of regular marriage born after retirement, is discriminatory.
9. Pension is payable, as pointed out in several judgments of this Court, on the consideration of past service rendered by the government servant. Payability of the family pension is basically on the selfsame consideration. Since pension is linked with past service and the avowed purpose of the Pension Rules is to provide sustenance in old age, distinction between marriage during service and marriage after retirement appears to be indeed arbitrary. There are instances where a government servant contracts his first marriage after retirement. In these two cases before us, retirement had been at an early age. In the Subedar case he had retired after putting in 18 years of service and the railway employee had retired prematurely at the age of 44. Premature or early retirement has indeed no relevance for deciding the point at issue. It is not the case of the Union of India and, perhaps there would have been no force in such contention if raised, that family pension is admissible on account of the fact that the spouse contributed to the efficiency of the government servant during his service career. In most cases, marriage after retirement is done to provide protection, secure companionship and to secure support in old age. The considerations upon which pension proper is admissible or the benefit of the family pension has been extended do not justify the distinction envisaged in the definition of “family” by keeping the post-retiral spouse out of it.
10. Government Servants Conduct Rules prohibit marriage during the lifetime of a spouse. Section 494 of the Indian Penal Code makes second marriage void and makes it a criminal offence. Thereafter, both before retirement and even after retirement there is no scope for a person to have a second wife or a husband, as the case may be, during the lifetime of an existing spouse.
11. Reliance has been placed on the recommendations of the Third Pay Commission on the basis of which the amendment in the Pension Rules is said to have been made. Apart from referring to the recommendations, no attempt has been made at the hearing by counsel for the Union of India to derive support from the recommendations. We really see no justification as to why post-retirement marriages should have been kept out of the purview of the definition.
12. In clause (ii) of the definition son or daughter born after retirement even out of wedlock (sic entered) prior to retirement have been excluded from the definition. No plausible explanation has been placed for our consideration for this exclusion. The purpose for which family pension is provided, as indicated in Poonamal case (1985) 3 SCC 345, (1985) 3 SCR 1042 is frustrated if children born after retirement are excluded from the benefit of the family pension. Prospect of children being born at such advanced age (keeping the age of normal superannuation in view) is minimal but for the few that may be born after the retirement, family pension would be most necessary as in the absence thereof, in the event of death of the government servant such minor children would go without support. The social purpose which was noticed in some pension cases by this Court would not justify the stand taken by the Union of India in the counter-affidavit. It is not the case of the Union Government that as a matter of public policy to contain the growth of population, the definition has been so modified. Even if such a contention had been advanced it would not have stood logical scrutiny on account of the position that the government servant may not have any child prior to retirement and in view of the accepted public policy that a couple could have children up to two, the only child born after superannuation should not be denied family pension.
13. Considered from any angle, we are of the view that the two limitations incorporated in the definition of “family” suffer from the vice of arbitrariness and discrimination and cannot be supported by nexus or reasonable classification. The words “provided the marriage took place before retirement of the government servant” in clause (i) and “but shall not include son or daughter born after retirement” in clause (ii) are thus ultra vires Article 14 of the Constitution and cannot be sustained.
14. The writ petitions are allowed. The respondent Union of India shall have a direction to extend to each of the petitioners in the two writ petitions family pension as admissible under the respective schemes from the date the husband of each of petitioners died.
15. Since these writ petitions were instituted on the basis of letters received by the Court and treated as public interest litigation and were supported by the Supreme Court Legal Aid Committee through their counsel, there shall be no order as to costs.