Calcutta High Court (Appellete Side)
Minati Chakraborty vs State Of West Bengal And Others on 10 June, 2025
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:-
The Hon'ble Justice Madhuresh Prasad
And
The Hon'ble Justice Supratim Bhattacharya
W.P.S.T. 163 of 2023
Minati Chakraborty
Versus
State of West Bengal and others
For the Petitioner : Mr. Biswanath Chakraborti,
Mr. Krishnendu Bera.
For the State : Mr. Tapan Kumar Mukherjee, Ld. AGP
Mr. Pinaki Dhole,
Mr. Sayan Dutta.
Judgment on : June 10, 2025
Madhuresh Prasad, J.:
1. The writ petitioner is applicant number 1 (one) before the West Bengal
Administrative Tribunal (“SAT” for short) in O.A. No. 1057 of 2015,
seeking the following relief:
“8. RELIEFS SOUGHT:
(a) Provision contained in sub Rule (vii) of Rule 189 A of the West
Bengal Death Cum Retirement benefits Rule, 1971 be declared ultra
vires to constitution of India.
b) In the event of a declaration proclaiming sub Rule (vii) of Rule 189 A
of the West Bengal Death Cum Retirement benefits Rule,1971 ultra
vires to constitution of India direction be issued to grant the benefits of
family pension to the applicants as admissible to the family of a
deceased normal pensioner.
c) Respondents may be directed to transmit all records pertaining to
this case for better appreciation of the matter by this Hon’ble Tribunal.
Calcutta High Court W.P.S.T. 163 of 2023 dt. 10.06.2025
d) Any other order and/or orders and/or orders or further orders as
this Hon’ble Tribunal may deem fit and proper for administration of
justice and equity.
e) Leave be granted to file the application collectively.
f) Costs.”
2. The learned AGP raised a preliminary objection regarding
maintainability of the instant writ petition. He submits that in view of
decision of the Apex Court in the case of L. Chandra Kumar vs.
Union of India and others reported in (1995) 1 SCC 261 the
jurisdiction of the writ Court under Article 226 of the Constitution of
India has been recognized so as to exercise judicial review in respect
of an order passed by the Tribunal. The judgment, however, has held
that the Tribunal shall continue to be the Court of first instance. The
petitioner has already moved the Tribunal and her O.A. is still
pending. Under such circumstance, this Court should not proceed to
consider the matter until and unless the petitioner’s claim is decided
by the Tribunal. He has also relied upon decision of the Apex Court in
the case of State of West Bengal and Others vs. Samar Kumar
Sarkar reported in (2009) 15 SCC 444.
3. We find that in the case of L.Chandra Kumar (Supra) the Apex Court
has held the jurisdiction of this Court under Article 226/227 of the
Constitution of India and the jurisdiction of the Hon’ble Supreme
Court of India under Article 32 of the Constitution of India to be a part
of the inviolable basic structure of our constitution. It has proceeded
to hold that such jurisdiction cannot be ousted, though other Courts
and Tribunals may perform a supplemental role in discharging the
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Calcutta High Court W.P.S.T. 163 of 2023 dt. 10.06.2025
powers conferred under Article 226/227 of the Constitution of India.
The competence of the Tribunals created under Article 323-A and
323-B of the Constitution of India to test constitutional validity of
statutory provisions and rules has also been acknowledged. The Apex
Court thus held all decisions of these Tribunals to be subject to
scrutiny before a Division Bench of the High Court within whose
jurisdiction the Tribunal concerned falls. Having observed so, the
Apex Court has proceeded to state in unambiguous terms that “the
Tribunals will, nevertheless, continue to act like Courts of first instance
in respect of the areas of law for which they have been constituted. It
will not, therefore, be open for litigants to directly approach the High
Courts even in cases where they question the vires of statutory
legislations (except where the legislation which creates the particular
Tribunal is challenged) by overlooking the jurisdiction of the Tribunal
concerned”.
4. The exposition of law has been made considering various earlier
judgments of the Apex Court. The law has been stated as regards the
basic structure of the Constitution of India, and the jurisdiction of the
Tribunals within the country including Tribunals established under
Article 323-A and 323-B of the Constitution of India. The concept of
judicial review has also been elaborately dealt with, and considered
that the Tribunals established under special branches of law in some
cases do involve consideration of constitutional questions on a regular
basis. The Apex Court has taken note of the fact that a large majority
of the cases in service law matters involved interpretation of Articles
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Calcutta High Court W.P.S.T. 163 of 2023 dt. 10.06.2025
14, 15 and 16 of the Constitution of India, and has thus rejected a
notion that Tribunal will have no power to handle matters involving
constitutional issues as such a conclusion would not serve the
purpose for which they were constituted. The Apex Court has
thereafter proceeded to conclude that decision of the Tribunal will be
subject to jurisdiction of the High Court under Article 226/227 of the
Constitution of India within whose territorial jurisdiction the
concerned Tribunal falls, but before a Division Bench and that such
system of exercise of jurisdiction would ensure that frivolous claims
are filtered out in the process of adjudication by the Tribunal and that
the High Court will be benefited by a reasoned decision on merits, for
finally deciding the matter.
5. However, it has been left open for a party to approach the High Court
directly where any question regarding the vires of the parent statute
under which the Tribunal was established is questioned and relief is
sought for declaring such statute to be unconstitutional.
6. In the case of Samar Kumar Sarkar (Supra) the High Court
exercising jurisdiction under Article 227 of the Constitution of India
withdrew a matter pending before the Administrative Tribunal since
the Tribunal had failed to decide the matter. The High Court exercised
its powers of superintendence under Article 227 of the Constitution of
India. Such power was exercised when the Tribunal was in seisin of
the matter and was considering the same. Under such circumstances
the Apex Court in para 20 and 23 of the report stated:
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Calcutta High Court W.P.S.T. 163 of 2023 dt. 10.06.2025
“20. But, at this stage, we are not concerned in this appeal with Article
228 of the Constitution but only with Article 227 of the Constitution and
more specifically with the correctness of the order passed by the
Division Bench of the High Court wherein the High Court has
withdrawn the application pending before the Administrative Tribunal
for its consideration and decision.
…
23. In the light of the above discussions, in our view, it would have
been proper if the High Court in exercising its jurisdiction under Article
227 had directed the Tribunal to dispose of the matter expeditiously,
instead of transferring the matter to itself. ”
7. The facts and circumstances in the present case, as noted above, are
completely different. Due to long pendency of the O.A. the petitioner
earlier moved this Court by filing W.P.S.T. No. 84 of 2022 wherein this
Court requested the Tribunal to consider the petitioner’s prayer for
preponement of the date and to dispose of the proceedings as
expeditiously as possible, preferably within three months. The earlier
writ petition has thus been disposed of on 23.09.2022. However, we
find that the O.A. filed by the petitioner in 2015 is pending for the last
about a decade.
8. The learned Counsel for the petitioner has drawn attention of the
Court to certain orders passed by the SAT during pendency of the
case; and averments made in the writ petition to the effect that the
matter has not been considered all this while in view of repeated
adjournments and other such reasons. Since the last about 3 years,
i.e. since September 2022 the Tribunal is functioning with only a
single Administrative Member. Since vires of Rule 189 A (vii) of the
West Bengal Service (Death-cum-Retirement-Benefit) Rules 1971
(DCRB 1971 for short) was challenged in the Original Application the
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Calcutta High Court W.P.S.T. 163 of 2023 dt. 10.06.2025matter was directed to be placed before a Division Bench of the
Tribunal for hearing vide orders dated 28.02.2022 and 12.09.2022.
The learned Counsel submits that consequential claim for family
pension is also involved in the present case, which has remained
pending for nearly a decade now before the Tribunal and at present is
incapable of being considered for want of a second Member in the
Tribunal.
9. We thus find that since there is no second member available in the
SAT, it is not possible for the matter to be placed before a bench of
two members. The petitioner’s approach to the forum of first instance,
has thus been rendered an exercise in futility and petitioner is left
remediless.
10. Considering the above noted facts and circumstances as well as
exposition of law laid down by the Apex Court in the case of
L.Chandra Kumar (Supra) we are conscious that it is not open to a
litigant to directly approach this Court invoking writ jurisdiction,
without approaching the Tribunal at the first instance. We are also
mindful that allowing such direct approach may lead to more and
more matters being filed directly in an attempt to overshoot the
jurisdiction of the Tribunal which in terms of the decision of the Apex
Court in the case of L.Chandra Kumar (Supra) we do not propose to
encourage.
11. In the instant case, the issue of directly approaching this Court
does not arise. The petitioner has approached the Court of first
instance namely the S.A.T. The fact that her O.A. is pending for a
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Calcutta High Court W.P.S.T. 163 of 2023 dt. 10.06.2025decade now is not in dispute. It is also not in dispute that there are
other cases also pending for a similar period of time before the
Tribunal and merely because of pendency of the matter before the
Tribunal for a long period, a litigant cannot be permitted to approach
this Court for deciding the issue under Article 226/227 of the
Constitution of India. Pendency of matters, though undesirable,
having regard to the large volume of dockets, compounded by various
other reasons, is by now a reality. Thus, mere pendency of the matter
for a long period of time may not in every case justify invoking the writ
jurisdiction. At the same time, we considered the unique facts and
circumstances of the present case taken note of above where the
widow applicants assail to the constitutional validity of a rule in the
expectation of grant of benefit of family pension has been pending
before the Tribunal now for nearly a decade. The petitioner, who is
applicant No. 1 before the Tribunal was aged about 65 years at the
time of filing of the O.A. in the year 2015 which is apparent from the
verification executed by her in the O.A. Thus, by now she would have
become about 75 years old. The issue has been directed by the
Tribunal to be placed before a two Member Bench of the Tribunal
under Section 5(6) of the Administrative Tribunals Act, 1985 in terms
of decision in the case of L.Chandra Kumar (Supra). However, since
there is no second member in the S.A.T. for the last about 3 years the
matter has been pending consideration. In fact, consideration of the
applicant’s/ petitioner’s claim has presently become impossible for
want of the second member in the Tribunal, and she is remediless.
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Calcutta High Court W.P.S.T. 163 of 2023 dt. 10.06.2025Thus, taking a holistic view of these facts and circumstances of the
present case, we proceeded to exercise our extraordinary and
discretionary jurisdiction under Article 226 of the Constitution of
India for considering the petitioner’s claim.
12. The writ petitioner is wife of one late Raghunath Chakrabarty
who was appointed as Sub-Inspector in the Food and Supplies
Department, Government of West Bengal on 1965. By virtue of an
agreement dated 12.12.1966 between the Food Corporation of India
(“FCI” for short) and the State government in Food and Supplies
Department (hereinafter referred to as “Department”), procurement,
transportation, storage and distribution of food grains under Public
Distribution System was taken over by the FCI. Employees of the
Department were also transferred on deputation to FCI. Sometime
later the department and FCI agreed that the employees including the
petitioner’s husband was to be absorbed in the FCI. The State
Government vide a memo dated 05.08.1985, bearing no. 5814-FS, laid
down the procedure and terms and conditions for such appointment
by way of absorption. The husband of the applicant was thus
absorbed in regular employment of the FCI. There is no dispute that
the petitioner’s husband was given the pensionary benefits including
terminal benefits admissible under the DCRB 1971 as per the terms of
absorption.
13. Other employees similarly situated as the petitioner’s husband
moved the West Bengal Administrative Tribunal (“SAT” for short)
claiming revised pension, dearness relief, revised pension after
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Calcutta High Court W.P.S.T. 163 of 2023 dt. 10.06.2025restoring the commuted amount of pension, and grant of family
pension. O.A. No. 722 of 2012 and other analogous cases filed by
them were disposed of by judgment dated 21.06.2013. All the dues
claimed by the applicants therein were allowed by the SAT, except the
claim of family pension.
14. The State Government assailed the judgment of the SAT in
W.P.S.T. No. 278 of 2014 and its analogous cases. The writ petitions
filed by the State Government was dismissed. As a result, all the
employees of the Department who were absorbed in the FCI, including
the petitioner’s husband became beneficiary of the order passed by
the Tribunal as regards the pensionary benefits including revised
pension, dearness relief on pension and grant of revised pension after
restoration of the commuted amount of pension.
15. The learned advocate for the petitioner, submits that the
applicants before the Tribunal in the earlier proceedings (O.A. No. 722
of 2012) did not question the vires of Rule 189 A (vii) of the West
Bengal Service (Death-cum-Retirement Benefit) Rules 1971
(hereinafter referred to as “DCRB 1971”) and, therefore, relying on this
Rule the Tribunal rejected the prayer for family pension. It is under
such circumstances that the High Court had affirmed the judgment of
the Tribunal in WPST No. 278 of 2014.
16. In the present proceedings the petitioner who was not a party to
the earlier proceedings has claimed the benefit of family pension by
assailing the vires of Rule 189 A (vii) DCRB 1971 before the S.A.T. on
the ground of being discriminatory and violative of Article 14 of the
9/28
Calcutta High Court W.P.S.T. 163 of 2023 dt. 10.06.2025Constitution of India. The learned Counsel for the petitioner has
submitted that deprivation of family pension is also in contravention
of Article 21 of the Constitution of India which guarantees the right of
a citizen to meaningful existence and to live with dignity. By depriving
the petitioner, the benefit of family pension her life has been reduced
to a mere existence without dignity, in penury so that it offends Article
21 of the Constitution of India. The learned advocate has submitted
that the concept of family pension was introduced to provide livelihood
to the wife and dependents of a Government servant, in the event of
death while in-harness; or after his retirement, embracing the doctrine
of a meaningful life with dignity, and livelihood as enunciated in
Article 21 and 39(a) of the Constitution of India. The concept of family
pension is founded on the concept of social security desperately
required by a woman subsequent upon death of her husband,
resulting in deprivation of his pensionary benefits, since in such a
situation, she is the worst sufferer.
17. It is submitted that Rule 189 A (vii) of DCRB 1971 insofar as it
deprives the dependents of a Government servant permanently
absorbed in a service or post under a Corporation or Company, the
benefit of family pension, is discriminatory. The petitioner’s husband
has served the State Government till his absorption in the FCI and
has been granted certain pensionary benefits under DCRB 1971,
noted above. The wife of other State Government pensioners, or state
government employees who die while in harness, are entitled to family
pension. In such circumstance depriving the petitioner, wife of an
10/28
Calcutta High Court W.P.S.T. 163 of 2023 dt. 10.06.2025absorbee pensioner the same benefit of family pension is
discriminatory. It is submitted by the learned advocate for the
petitioner that Rule 189 A (vii) of the DCRB 1971 which provides the
basis for such deprivation is opposed to the equality clause enshrined
under Article 14 of the Constitution of India. It also deprives the
petitioner her right to livelihood and meaningful existence with dignity
in contravention of Article 21 of the Constitution of India.
18. It is submitted that Rule 189A (vii) seeks to create an
illegitimate classification between the employees/ pensioners of the
State Government based on the fact that at some point of time some of
them like petitioner’s husband was absorbed in the FCI, based on
agreement dated 26.11.1966 between the State Government and the
Central Government. Application of these Rules results in hostile
discrimination and is, therefore, unsustainable.
19. The learned Counsel for the petitioner relies upon decision of
the Apex Court in the case of Poonamal (Smt.) and Others vs. Union
of India and Others Reported in (1985) 3 SCC 345. He has also
placed reliance on another decision, rendered by the Apex Court in
the case of All Manipur Pensioners Association by its Secretary vs.
State of Manipur and Others reported in (2020) 14 SCC 625. He
submits that all pensioners form a single class. Article 14 ensures
equality before the law and equal protection of laws. The classification
effected by operation of Rule 189A(vii) is not a valid classification as
there is no just objective sought to be achieved by such classification.
The twin test for justifying such classification as enunciated in the
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Calcutta High Court W.P.S.T. 163 of 2023 dt. 10.06.2025case of Manipur Pensioners Association (supra) requires the Court
to see that the distinguishing rational is based on a just objective and
secondly that the choice of differentiating one set of persons from
another must have a reasonable nexus to the object sought to be
achieved. He submits that the classification is required to be based on
an intelligible differentia, which has a rational relationship with the
objects sought to be achieved. This twin test is not satisfied in the
present case as the classification is not based on any intelligible
differentia. The Rule, in fact, mandates differential treatment between
two pensioners solely on the fact that one of them (the petitioner’s
husband) got absorbed in the FCI.
20. Laying great emphasis on the case of Poonamal (Smt.) (Supra)
he submits that benefit of family pension is not linked to any
contribution, thus Rule 189 A (vii) of the DCRB 1971, denying family
pension to widows and dependents of absorbee pensioners like
petitioner’s husband is baseless and unsustainable. He has relied
upon para 3 of the said judgment wherein the Court has dealt with
conceptualization of family pension in view of hardships suffered by
the woman on account of death of her husband (employee or
pensioner) such as deprivation of companionship; and also the fact
that she becomes economically orphaned. It is under such
circumstance that the family pension was conceptualized to provide
succour so that the widow can tide over the crisis and meet the family
liabilities for a meaningful existence. The apex court was considering
the concept of family pension in the said case wherein the
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Calcutta High Court W.P.S.T. 163 of 2023 dt. 10.06.2025Government sought to discriminate in the matter, and deprive grant of
family pension on the ground that the petitioners therein were widow
of such Government servants who chose not to make contributions as
required under the 1964 Scheme. The Court took note of the fact that
since September 22, 1977 the contributory scheme ceased to exist.
The apex court was of the view that requirement of contribution being
done away, there was no basis to discriminate between those who had
contributed under the earlier 1964 Scheme; and those who had not
contributed, since post 1977 the requirement of contribution was
done away with. In such facts and circumstance, the Apex Court was
of the view that a glaring dissimilar treatment emerged and that an
anomalous situation arose by denying family pension to the writ
petitioners therein.
21. The learned AGP appearing on behalf of the state submits that
validity of Rule 189 A (vii) DCRB 1971 was not assailed in O.A. Nos.
722 of 2012 and analogous cases. Having omitted to pray for such
relief which was then also available, the same is now barred by the
principles of constructive res judicata. He proceeded to submit that
the argument of discrimination and violation of Article 21 is without
any factual foundation for such submissions. Rule 189 A (vii) is part
of the DCRB 1971, which is framed under the proviso to Article 309 of
the Constitution of India and framing of such Rules by the State
Authorities is within their legislative competence derived from Article
309 of the Constitution of India.
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Calcutta High Court W.P.S.T. 163 of 2023 dt. 10.06.2025
22. The writ petitioner is widow of an ex-employee of the
Department who was voluntarily absorbed in the FCI. Subsequent
upon his absorption he became employee of the FCI and ceased to be
a State Government employee. The petitioners’ husband was receiving
pro rata pension from the State, proportionate to service rendered
under the State Government. He enjoyed the benefit of such pension
without any demur, while he was alive. During his lifetime, he never
made any claim for grant of family pension for his dependents. The
petitioner’s husband died in the year 2010. The petitioner, therefore,
now has no right whatsoever to claim parity in the matter of grant of
family pension with the dependents of employees of the state
government, who died in-harness or retired as a state government
employee.
23. Learned AGP has relied upon Rule 15 of the DCRB 1971,
wherein family pension has been defined:
“15. Family pension- In case of death of a Government servant while
in service or after retirement, if the deceased officer was entitle to, or
was in receipt of, as the case may be, of a compensation, invalid,
retiring or superannuation pension, the family of the deceased
Government servant shall be entitled to a gratuity and/or pension as
provided in Chapter X of this rule.”
24. He has also drawn attention of the Court towards Rule 101 of
the D.C.R.B. which reads:
“101. Application of these rules,- (1) These rules, shall subject to
the provisions of sub-rule (3), apply in case of death of a Government
servant while in service,-
(a) who entered service on or after 1st April 1965; or
(b) who was in service before 1st April 1965 and has not opted
specifically not to come under this scheme, and who has rendered at
least three years service.
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Calcutta High Court W.P.S.T. 163 of 2023 dt. 10.06.2025
(2) The benefit shall also be admissible in case of death after
retirement, if at the time of death the retired officer was in receipt of a
compensation, invalid, retiring or superannuation pension [or gratuity
provided the Government servant has completed three years service.]
*352-F (Pen) dt. 25.6.08 (emp. Who received gratuity and retired prior
to 30.7.07 will not come under the preview of 674- F (Pen) dt. 30.07.07)
(3) These rules shall not be applicable to-
(a) persons who retired on or before the 1st April 1965 but may be re-
employed on that date or thereafter;
(b) persons paid from contingencies;
(c) work-charged staff who have not been declared quasi-permanent
and who are not in service with permanent status;
(d) Casual labourer;
(e) Contract Officers
Compiler’s Note : The position of rule 100(1) has been liberalised with
effect from 1.4.81 to the effect that the condition of rendering three
years’ service for admissibility of the benefit of family pension in case
of death while in service. Stands reduced to one year service, vide,
F.D.Memo.No.5625-F dt.27.7.81 (See Rule 959-F(Pen) dt. 20.7.95 at
next page)
**In respect of persons who retired’ on or before the 1st April 1965 a
scheme of ‘ad-hoc family pension has been introduced with effect from
1.4.81 under F.D. Memo.No.6153-F dated 13.8,81. In respect of
employees who died while in service prior to 1.4.65 but after 15.8.47,
another ad-hoc family pension’ has been .introduced with effect from
1.10.87 under F.D. Memo No. 11585-F dated 19.10.87. .
# Worked-charged staff as mentioned in rule 101(3)(c) has been
brought under the purview of F.B.Memo.No.5625-F dated 27.7.81 vide
F;D.Memo.No.657-F dated 18.1.90 read with No.4120-F dated 26.4.90.
In respect of missing employee /pensioners, provisions have since been
made for grant of family pension etc. to, the family concerned, vide
F.D.Memo. No.4671-F dated 14.5.90 read with No. 1500-F (Pen) Dated
17.7.92.
674F (Pen) dt. 30.7.07 (The benefit of family pension shall be
admissible in case of death after retirement, if at the time of death the
retired officer was in receipt of compensation invalid, retiring or super
annotation pension).
• 959 -F (Pen) dt. 20.7.95 (family pension for employees who dies
before completion of one year’s service.)”
25. He submits that from a plain reading of Rule 101 of D.C.R.B. it
is clear that the same is applicable for grant of family pension in case
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Calcutta High Court W.P.S.T. 163 of 2023 dt. 10.06.2025of death-in-harness of a state government employee; or death after
retirement of an employee of the state government. Plain reading of
rule 15 also reveals the intention of the statute that entitlement of
family pension is limited to a state government employee in case of his
death while in service or after his retirement. Upon his absorption in
FCI the petitioner’s husband ceased to be an employee of the state
government and, therefore, petitioner is not in a position to claim
parity with an employee of the state government for grant of family
pension. The petitioner’s allegation that denial of family pension is
discriminatory or violative of petitioner’s right to livelihood under
Articles 14 and 21 of the Constitution of India is untenable.
26. Learned AGP further submits that pension is no longer a
fundamental right, since Act 19(1) (f) and Article 31 (1) of the
Constitution of India has been omitted by Constitution (forty fourth
amendment) Act, 1978, with effect from 20.06.1979. He has also
referred to decision of the Apex Court in the case of D.S. Nakara vs.
Union of India reported in (1983) 1 SCC 305, to submit that pension
is payment for the past service rendered, as a social welfare measure,
but can be paid based on provisions contained in Statutory Rules. In
view of Rule 189A (vii) of DCRB 1971 there is no legal obligation to pay
pension. The decisions relied upon by the learned Counsel for the
petitioner in the case of Manipur Pensioners Association (supra)
and Poonamal (supra) at best make out a moral obligation in view of
the pathetic situation of the dependant family members left behind on
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Calcutta High Court W.P.S.T. 163 of 2023 dt. 10.06.2025account of the death of the employee in-harness or pensioner. Claim
to family pension, therefore, cannot be elevated to a fundamental
right.
27. Insofar as the other benefits being received by the petitioners’
husbands during his lifetime, it is submitted that the grant of such
benefits was in view of entitlement declared by the Tribunal in O.A.
No. 722 of 2012, as affirmed by decision of the Co-ordinate Bench of
this Court in W.P.S.T. No. 278 of 2014 and its analogous cases. The
various heads under which benefit of pro rata pension, revision and
dearness relief has been allowed by the Tribunal are under the other
provisions of DCRB 1971. The Tribunal and the High Court found a
basis in the relevant rules, namely DCRB 1971 for extending such
benefits to the petitioners’ husbands. At the same time the Tribunal
as well as the High Court came to a finding that Rule 189 A (vii)
mandates that the state government would have no liability for family
pension in respect of a Government servant absorbed in an
undertaking, such as the petitioner’s husband. Rule 189 A (vii)
therefore does not suffer from any vice of being opposed to Article 14
or 21 of the Constitution of India.
28. Upon consideration of the rival submissions, it is useful to
quote Rule 189 A (vi) and (vii) of DCRB 1971:
“189 A, Grant of pro-rata pension and gratuity to Government
servants absorbed in public sector undertakings on or after the
16th June 1967-(1) (i) On permanent absorption on or after the 16th June, 1967 in a
service or post in or under a Corporation or Company wholly or
substantially owned or controlled by the Government or in or under a17/28
Calcutta High Court W.P.S.T. 163 of 2023 dt. 10.06.2025body controlled or financed, by Government (hereinafter referred to the
undertaking), a permanent Government servant shall be eligible for pro-
rata pension .and gratuity based on the length of his qualifying service
under Government till the date of absorption in accordance with the
pension rules of Government in force on the date of absorption. The
emoluments for the purpose of pro-rata pension and gratuity shall
mean the emoluments which the Government servant would have
drawn under the Government but for his transfer to the undertaking.
….
(vi) For the period of service rendered in the undertaking the absorbed
Government servant shall be entitled to all the benefits admissible to
other corresponding employees of the said undertaking.
(vii) Government would have no liability for family pension under rule
15 of the said rules in respect of a government servant absorbed in the
undertaking referred to in clause (vi).”
29. The DCRB 1971 is applicable to Government servants, which
expression has subsequently been substituted by the term
“Government Employee”. Rule 6 specifies that Government employees
claim to pension is regulated by the Rules in force at the time the
Government servant resigns or is discharged from service on
retirement or otherwise. As per Rule 18 the service of an officer does
not qualify for pension unless the service is under the Government
and the employment is substantive and permanent or of a permanent
status or quasi permanent. Another condition to qualify for grant of
pension is that the service of the officer must be paid by the
Government. Pensions have been divided into 4 classes under Rule 37
namely compensation pension, invalid pension, superannuation
pension and retiring pension.
30. The application of the DCRB Rules 1971 for the purposes of
grant of family pension is specified in Rule 101 of the DCRB 1971
noted above. From a plain reading of rule, it is obvious that the DCRB
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Calcutta High Court W.P.S.T. 163 of 2023 dt. 10.06.2025
1971 insofar as the grant of family pension is concerned applies in
case of death of a Government employee while in service, as also in
case of death after retirement of a Government employee, if at the time
of death the retired officer was in receipt of a compensation, invalid,
retiring or superannuation pension or gratuity provided the
Government servant has completed the qualifying service for the said
purpose. Rule 101 also specifies the persons to whom the rules
insofar as grant of family pension shall not apply. The various
provisions of the DCRB 1971 taken note of above leaves no room for
doubt that pension and family pension is payable to a Government
employee subject to terms and conditions contained in the various
rules therein.
31. In view of the various nature of activity in the State
Government, necessity arises from time to time of deputing
Government employees of the State Government to other
organizations including Central Government or any other Boards/
Corporations etc. On many occasions employees of Central
Government, Boards/ Corporation etc. are also deputed within the
State Government as per administrative need and exigency. For such
circumstances, the DCRB 1971 contains certain provisions in Chapter
XV dealing with Miscellaneous Provisions. Rule 186, 187 and 188 of
Chapter XV of DCRB 1971 deals with counting of temporary service
under the Government of India on subsequent absorption in the State
Government, special provisions regarding practicing lawyers recruited
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as Government servant and counting of Air Raid services towards
pension respectively. Rule 189A provides for grant of pro rata pension
and gratuity to employees who cease to be Government employees and
are absorbed in public sector undertaking on or after 16 June, 1967.
32. We find such classification is founded on a rational. A
Government employee who serves the State Government right from
the date of his appointment in State Government till attaining the age
of superannuation has been taken as one class; whereas persons/
employees who come into the State Government service after
rendering service under another employee and are carrying benefits in
respect of the services rendered under the earlier employee are treated
differently. Likewise, the Rule contemplates a differential treatment to
such Government employees, such as the present petitioner’s
husband who do not serve the State Government till attaining the age
of superannuation and who after serving the State Government for
some time is absorbed in another organization/ undertaking. Thus, it
cannot be said that the classification is without any rational, arbitrary
or unsustainable. We do not see any substance in the submission of
learned Counsel for the petitioner that an employee who voluntarily
leaves the State Government service to be absorbed in another service,
where he serves till attaining the age of superannuation can claim
parity with a Government employee who choses to serve the State
Government from the time of his initial appointment in State
Government service till attaining the age of superannuation.
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33. The law as regards pension and family pension is considered, is
by now well settled. In the case of Bhagwanti vs. Union of India
reported in (1989) 4 SCC 397 the Apex Court relying upon its earlier
decisions in the case of D.S. Nakara (supra), in the case of
Deokinandan Prasad vs. State of Bihar and Others reported in
(1971) 2 SCC 330, and in the case of Poonamal (Smt.) (Supra) held
pension to be linked to the past service rendered by a Government
servant. It was also held that a claim to family pension is on the same
consideration. Relevant extract of paragraph 9 of this report reads:
“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.”
34. This judgment thus held the consideration of past service
rendered by the Government servant to be determinative of his
entitlement to pension and family pension. Rule 189A also
contemplates payability of pension to a Government servant absorbed
in a public sector undertaking to be linked to his past service
rendered in the State Government. It, therefore, provides for payment
of a pro rata pension to a Government servant such as the petitioners
who gets absorbed in another organization. The past service of such
persons, is not at par with Government servants who serve the State
Government till attaining the age of superannuation.
35. The Apex Court has laid down the law as regards payabiltiy of
family pension to be based on the same consideration, i.e. past
service. Thus, the stipulation contained under Rule 189A (vii) that the
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Government would have no liability to pay family pension for such
Government servants absorbed in an undertaking is also considering
entitlement to grant of family pension based on the limited past
service rendered by such Government servant, who are absorbed in
public sector undertaking after rendering some service under the
State Government. On a consideration of the limited past service
rendered by such Government servants absorbed in an undertaking a
distinction is created, with such Government servants, who, on the
other hand, serve the State Government from the date of their entry in
service till the date of their superannuation. The distinction being
founded on a consideration of the past service rendered, which has
been held as a valid basis for considering payability of pension and
family pension, there is no occasion for the petitioners to contend that
Rule 189A (vii) creates any illegal classification. The classification is
founded on a relevant consideration being the length of service. The
rule also takes into consideration the fact that Government employees
who are absorbed elsewhere are entitled to all benefits admissible to
other corresponding employees of the undertaking where they have
been absorbed, whereas those who continue to serve the State
Government till attaining the age of superannuation do not get any
such benefit from another employer. The petitioner’s claim to parity,
therefore, appears to be unsustainable. We, thus, find no force in the
submission of the learned Counsel for the petitioner that classification
is unsustainable.
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36. We also find that such classification under DCRB 1971 has a
reasonable nexus with the object sought to be achieved, i.e. avoiding
financial liability to pay family pension in such a circumstance, and
forms a rational basis for denying liability of the Government to pay
family pension to family of an employee who ceases to be a
Government servant under the DCRB 1971 and is absorbed in an
undertaking where they continue to serve till attaining the age of
superannuation and by virtue of such service under the subsequent
employer became entitled to the service conditions including retiral
benefits from such subsequent employer.
37. There is no dispute that the absorption of the petitioner’s
husband was voluntary and with open eyes knowing the
consequences of such absorption in terms of Rule 189A, including the
emoluments and service benefits available in the undertaking where
the petitioner was absorbed. In such circumstance, the State cannot
be continued to be held liable for payment of family pension. It cannot
be accepted that the State Government will continue to bear the
responsibility of family pension for the petitioner whose husband
immediately after his appointment in 1965 was deputed to the FCI in
1966 where he served continuously till his voluntary absorption in the
FCI in 1985, and even thereafter, till his retirement upon attaining the
age of superannuation in 2010. Absorbee pensioners, such as the
petitioners cannot claim parity with other pensioners who render
service to the State Government till attaining age of superannuation,
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or die while in harness; or are receiving compensation pension, or
invalid pension.
38. Plain reading of these relevant provisions contained in Rule
189A makes it clear that the classification between an absorbee
petitioner and a retiree pensioner is based on an intelligible differentia
which has a rational with the object sought to be achieved.
39. As regards decision of the Apex Court in the case of Poonamal
(Smt.) (Supra) we find that the same is distinguishable from the facts
and circumstances of the present case. Before the Apex Court in the
said case the petitioners were claiming the benefit of family pension
alleging discrimination between those who were earlier making
contribution in accordance with the 1964 Scheme; and those who did
not make contribution under the said Scheme. Such claim was
founded on a completely different set of facts, where both were retiring
pensioners in the same organization; and also because after
22.09.1977, the requirement of making contribution was not linked to
the grant of family pension. It is under such circumstance that the
Apex Court found a glaring dissimilar treatment emerging as there
was no intelligible difference to justify denial of family pension to the
petitioners therein. The Apex Court was thus of the view that
dissimilar treatment was being accorded to pensioners in the same
organization drawing pension under the same Rules based on no
intelligible differentia. It is also worth taking note of the fact that in
the case of Poonamal (Smt.) (Supra) the respondent Union of India
had examined the matter, and on its own volition expressed the
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Government’s readiness to grant the pensionary benefits at par with
other pensioners who were earlier making contribution under the
Scheme, as claimed by the petitioners therein. The respondents in the
present case, however, are opposing the claim of the writ petitioners.
40. The other judgment relied upon by the learned advocate for the
petitioner in the case of Manipur Pensioners Association (Supra),
also in our opinion, does not cover the case of the writ petitioners in
the present case. The said judgment deals with a situation where
pensioners who had served under the State Government service and
were receiving pension from the State Government, but were deprived
of benefits of revisions based on a cutoff date. Fixing of the cutoff date
was found by the Apex Court to be unsustainable. The facts and
circumstances in the present case as note above are completely
different. In the case of Manipur Pensioners Association (Supra)
there was no distinction based on the nature or length of services
rendered by the employees who were granted the benefit of revision,
with those who were not granted the benefit, as arising in the present
case. The deprivation to benefits of revision to some pensioners in the
case of Manipur Pensioners Association (Supra) resulted only on the
basis of the cut off date and there was no other distinction. The
petitioner herein is wife of an employee who subsequent upon his
voluntary absorption in FCI ceased to be a Government employee and
as such under rule 189A (vii) DCRB 1971 is not entitled to grant of
family pension. Also the petitioner’s husband during his lifetime did
not raise any such claim for his family. He accepted the due and
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admissible benefits from the state government in recognition of
services rendered by him under the State Government, prior to his
absorption in FCI with open eyes; and thereafter due and admissible
benefits from FCI. Viewed thus we are of the opinion that the
petitioners herein cannot derive any sustenance from decision of the
Apex Court in the case of Manipur Pensioners Association (Supra).
41. The operation of Rule 189A (vii) DCRB 1971, therefore, in our
considered opinion is not discriminatory in any way. The Rule
acknowledges existence of absorbee pensioners like the petitioner’s
husband. Based on the past limited service rendered in the State
Government it acknowledges a valid distinction of such absorbee
pensioners with other pensioners. In view of the forgoing discussion,
we find that no case is made out to assail validity of this rule as being
ultra vires the provisions contained Article 14 and 21 of the
Constitution of India. We have already considered that the distinction
is based on a valid consideration being the past service. We have also
considered the fact that the petitioner’s husband received pro rata
pension from the State Government, and would also be receiving
benefits from the subsequent employer (FCI) where he was absorbed.
The petitioners have not been able to make out any case of Rule 198A
(vii) violative of Article 14 and 21 of the Constitution.
42. Upon going through the provisions contained in DCRB 1971,
relied upon by the learned Advocates, considering their submissions
and the decisions relied upon by them we find force in submission of
the learned AGP that the petitioner’s husband was voluntarily
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absorbed in FCI. For the length of services rendered by him in the
Department. He has been given the benefit of pro rata pension for the
length of service rendered by him in the department as per DCRB
1971. The absorption was voluntary and with open eyes accepting the
consequences of such absorption including application of Rule 189A
(vii) to the petitioner’s husband, subsequent upon his absorption in
FCI. The petitioner’s husband, therefore, never raised any such claim
for grant of family pension to his dependent family members. He
accepted the consequences without any demur. It is also not in
dispute that he died in the year 2010 after getting dues admissible to
him from the FCI, apart from the dues paid by the State Government
under the provisions of DCRB 1971; and in terms of order passed in
WPST No. 278 of 2014.
43. Submission of the learned State Counsel that the relief in the
present OA is barred since no such prayer was made in the earlier OA
no. 722 of 2012 to be unsustainable for the simple reason that the
earlier OA was not filed by the present petitioner.
44. It is also relevant to consider that the petitioner’s husband, ever
since his absorption in FCI has been treated to be in a class distinct
from the retiring pensioners, in as much as he never received pension
at par with retiring pensioners. During his lifetime petitioner’s
husband was paid pro rata pension taking into consideration his
service under the State Government prior to his absorption in FCI.
The petitioner’s husband thus has never been treated at par with
retiring pensioners, even for the purpose of paying the benefit of
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pension. For such reason also petitioner’s claim for parity with retiring
pensioners, in respect of the benefit of family pension is
unsustainable.
45. In view of the foregoing discussion, we find no legitimate basis
for the petitioner to claim the benefit of family pension from the State
Government; or any legally sustainable grounds to assail the vires of
Rule 189A (vii).
46. The present petitioner was the first applicant before the SAT.
Another widow joined her in filing a Single application as
contemplated under Rule 4(5)(a) of the Central Administrative
Tribunal (Procedure) Rules 1987, since both had a common interest in
the matter. The second applicant, however, has not joined present
petitioner in these proceedings. We, therefore, consider it appropriate
to dismiss the present writ petition, and OA No. 1057 of 2015 in so far
as the present petitioner is concerned.
47. Urgent Photostat certified copy of this judgment, if applied for,
be supplied to the parties, expeditiously after complying with all
necessary legal formalities.
(Madhuresh Prasad, J.)
I agree.
(Supratim Bhattacharya, J.) (A.D.)
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