SMT. J. S. RUKMANI ETC v. GOVERNMENT OF TAMIL NADU & Ors.

The liability may be in persenti or it may be a liability to arise in future, but it must be a liability under an existing provision of law and it is that liability which is to pass to or be apportionable between the successor State or ·States in accordance with the provisions contained in the Fifth Schedule. Section 86 could not possibly be intended to refer to a liahility which may subsequently be created by a provision of law which may be enacted in future by any particular State. The words of the Section arc "the liability of the existing States''. It must therefore be a liability of an existing State and not a liability of a successor State which may come into being as a result of a future legislation passed by that State. If the construction canvassed on behalf of the State of Tamil Nadu were ae<epted, it would lead to startling result, namely, that a successor State by enacting legislation creating a liability for pension would be able to pass on that liability to the other successor State which could never have been intended by the legislature.

This view which we are taking reinforced by Paragraphs 1 and 3 of the Fifth Schedule. Paragraph I on its plain terms refers to "pensions granted before the appointed date by an existing State". It applies only in respect of a pension which is granted before Ist October, 1956 being the appointed date under the States Re-organisation Act, 1956 and it has no reference whatsoever to any pension granted subsequent to that date. More over Paragraph 3 also makes it clear that it is only the liability of an existing State in respect of pension which is required to be apportioned between the successor States in the population ratio. A B c D E F G 1000 SUPREME COURT REPORTS [1985] I s.c.R. It is therefore clear beyond doubt that Section 86 and Paragraphs I and 3 of the Fifth Schedule do not cover a case where a liability for pension is created by a successor State subsequent to the appointed date, namely, 1st October, 1956.

The reliance placed by the learned Additional Solicitor General on behalf of the State of Tamil Nadu on Section 86 read with Paragraphs 1 and 3 of the Fifth Schedule is therefore misconceived and the argument based upon it must be rejected Ir Section 86 read with Paragraphs I and 3 of the Fifth Schedule has no applicability, the question before us resolves into a very narrow one, namely, whether the liability for family pension created by the State of Tamil Nadu under the Notification dated 26th May, 1979 is limited only to cases of those government servants who were last employed at a place which falls within the territorial limits of the State of Tamil Nadu. The argument of the petitioners was that their respective husband< were in the service of the former State of Madras and they retired as such government servants at a time when the State of Madras was in existence and if the State of Tamil Nadu which is th~ successor State to the State of Madras has issued a Notification dated 26th May, 1979 granting the benefit of family pension to the widows of government servants who retired prior to Ist April, 1964, the petitioners must be held to be entitled to the benefit of such family pension, since they satisfied all the conditions requisite for the applicability of grant of family pension under the Notification dated 26th May, 1979.

Now it was not the contention of the State of Tamil Nadu that Government servants who were in the employment of the State of Madras and who retired before the State of Tamil Nadu came into being as a result of the States Reorganisation Act 1956 were not entitled to the benefit of family pension under the Notification dated 26th May 1979. The State of Tamil .'liadn conceded that the widows of such Government servants were entitled to grant of family pension under the Notification dated 26th M.ay 1979 provided such govern· ment servants were at the date of superannuation serving at a place which on the reorganisation of t:1e Slates fell within the territories forming part of the State of Tamil Nadu. Only ground on which the State of Tamil Nadu sought to exclude the petitioners from the benefit of the family pension was their . respective husbands served at the time of their superannution at places which as a result of the States Re-organisation Act !956 were no more in the State of Tamil Nadu but became parts of other successor St11te8.

We do no thin!> any such limitation can be read in A B c D E F G " I ], s. RUKMANI v. TAMIL NADU (Bhagwati, J.) 1001 is, It is true that by reason of Notification dated 26th May, 1979. the subsequent Government Order dated 18th March, 1982 issued by the State of Tamil Nadu clarifying the Notification dated 26th May, 1979, the petitioners would be excluded from the benefit of the family pension since the places where their respective hnsbands were serving at the time of superannuation became part of States other than the State of Tamil Nadu. But the learned counsel appear- ing on behalf of the petitioners challenged the constitutional validity of the Government Order dated 18th March, !982 and contended that the place where a government servant was serving at th·e time of superannuation has no rational nexus with the object of granting family pension under the Notification dated 26th May, 1979 and that the Government Order dated 18th March 1982 therefore discriminatory and void.

This contention in our opinion, well founded and must be accepted. The object of granting family pension under the Notification dated 20th May, 1979 is obviously to alleviate the economic distress of widows and other members of the family of Government servants who retired after faithfully serving the State of Madras as also the successor State of Tamil Nadu and who subsequently died leaving widows and other members· of the family. Now admittedly the widow of a govern- ment servant who was in employment of the former State of Madras and who retirod before the reorganisation of the States would be entitled to family pension under the Notification dated 26th May, 1979 if the place where her husban·d was serving at the time of superannuation was situate in the territories of the successor, State of Tamil Nadu. If that be so, then it is difficult to see how the widow of a government servant who served the former State of Madras in the same manner and who retired before the reorganisa tion of the States should not be entitled to family pension under the Notilication dated 26th May, 1979 merely because place where her husband was serving at the date of superannuation subsequently came to form part of the territories of a State other than the State of Tamil Nadu as a result of the reorganisation of the States.

The object of the Notification dated 26th May, 1979 does not warrant any such distinction to be made between tho widows of one class of government servants and the widows of another class merely on the basis of the place where the government servant last served at the time of superannuation, although in both cases the Government servant served the same State, namely, the former State of Madras and superannuated before the reorganisation of the States. We are therefore of the view that the restrictive limitation imposed by tho Government Order dated 18th March, 1982 confining the benefit of A 8 C D E F G 1002 SUPREME COURT REPORTS (1985] I S.C.R. A B c D E G family pension to the members of the family of only those govern ment servants who last served at a place falling within the territories of the successor State of Tamil Nadu must be held to be violative of Article 14 of the Constitution and hence unconstitutional and void.

We must accordingly hold that the State of Tamil Nadu is liable to pay to the petitioners in these four writ petitions as also to the widows of other government servants falling within Paragraph 7 of the Notification dated 26th May, 1979 family pension at the rate of Rs. 100 per month with effect from !st April, 1979. We would therefore issue a writ directing the State of Tamil Nadu to pay to the petitioners in all these writ petitions arrears of family pension calculated at the rate of Rs. 100 per month from !st April, 1979 after deducting the amount, if any, already paid by the States of Tamil Nadu and Kerala to the Petitioners in terms of the interim orders made by us. The State of Kerala will not be entitled to claim refund of any payment made to the petitioners nor rein· bursement in respect of such payments from the State of Tamil Nada. The arrears of family pension shall be paid by the State of Tamil Nadu to the petitioners within four months from today and •he State of Tamil Nadu will continue to pay to the petitioners family pension a Rs.

100 per month on or before 10th day of each succeeding month in terms of the Notification dated 26th May, 1979. We may make it clear that the State of Kerala will not be liable in future to make any payment to the petitioners since the future liability for payment of family pension rests on the State of Tamil Nadu. The State of Tamil Nadu will pay to the petitioners costs quantified at a consolidated figure of Rs. 2,000 in all the writ petition8. N.V.K. Petitions allowed. ' .