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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
M.SATYANARAYANA MURTHY, J
G.V.Seshamamba and 8 others - Petitioners
Versus
The State of Andhra Pradesh, Represented by its Principal Secretary – Respondents
W.P.Nos.19671, 19450, 20479, 20521, 20826, 20955, 22207, 22791, 22809, 23304, 23356, 23815, 24380, 24717 and 25151 of 2020 and W.P. Nos.1852, 2402, 2490, 2618, 2702, 3083, 3127, 2743, 2764, 566, 3654, 3699, 3266, 4499, 4958, 4881 and 4882 of 2021
Decided On : 05-03-2021
Constitution of India, 1950 – Article 14, 21 and 300-A, 226, 306 – Writ of Mandamus – Andhra Pradesh Revised Pension Rules, 1980 – Rule 50 – In all the writ petitions either widowed daughter or divorced daughter of deceased retired Government Servant are the petitioners, filed these petitions under Article 226 of the Constitution of India for issue of Writ of Mandamus to declare the G.O.Ms.No.152 Finance (HR.III -Pension) Department dated 25.11.2019 in so far as amendment made to G.O.Ms.No.315 Finance (Pension-I) Department, dated 07.10.2010 under Para No.5 of the said G.O. prescribing the eligibility to receive family pension up to the date of their children becoming majors and up to 45 years w.e.f issuance of G.O.Ms.No.315 Finance (Pension-I) Department dated 07.10.2010 as illegal, arbitrary, capricious, whimsical, resulting in violation of Article 14, 21 and 300-A of the Constitution of India and consequently set aside the said G.O.Ms.No.152 Finance (HR-III Pension) Department dated 25.11.2019 in so far as amendment made to G.O.Ms.No.315 Finance (Pension-I) Department dated 07.10.2010 under Para No.5 of the said G.O prescribing the eligibility to receive family pension up to the date of their children becoming majors and up to 45 years w.e.f issuance of G.O.Ms.No.315 Finance (Pension-I) Department dated 07.10.2010.
Finding of court: Provisions of the Andhra Pradesh Revised Pension Rules, 1980 more particularly Rule 50 was not amended by the State legislature, but executive instructions were issued in the name of clarification and included amendment to rule. – Therefore, it is neither clarification nor amendment to the Andhra Pradesh Revised Pension Rules. – The State executive in utmost haste appears to have passed such serendipitous impugned Government Order even without examining the impact on the family pensioners, more particularly divorced daughter/widowed daughters of the deceased government servants and its consequences. – State executive did not examine rationale behind such classification while issuing such instructions. – Therefore, executive instructions in the impugned G.O.Ms.No.152 Finance (HR.III -Pension) Department dated 25.11.2019 is violative of Articles 14, 21 and 300-A of the Constitution of India and the Andhra Pradesh Revised Pension Rules. – Therefore, this Court can interfere with such policy decision as it is violative of Articles 14, 21 and 300-A of the Constitution of India. – Hence, the contention of learned Government Pleader for Services – I is hereby rejected. – Court find that the executive instructions will not override or prevail over the statute or statutory rules framed exercising power under Article 309 of the Constitution of India and that the G.O.Ms.No.152 Finance (HR.III Pension) Department is violative of Articles 14, 21 and 300-A of the Constitution of India.
Result: Writ Petitions Allowed
ORDER :
In all the writ petitions either widowed daughter or divorced daughter of deceased retired Government Servant are the petitioners, filed these petitions under Article 226 of the Constitution of India for issue of Writ of Mandamus to declare the G.O.Ms.No.152 Finance (HR.III -Pension) Department dated 25.11.2019 in so far as amendment made to G.O.Ms.No.315 Finance (Pension-I) Department, dated 07.10.2010 under Para No.5 of the said G.O. prescribing the eligibility to receive family pension up to the date of their children becoming majors and up to 45 years w.e.f issuance of G.O.Ms.No.315 Finance (Pension-I) Department dated 07.10.2010 as illegal, arbitrary, capricious, whimsical, resulting in violation of Article 14, 21 and 300-A of the Constitution of India and consequently set aside the said G.O.Ms.No.152 Finance (HR-III Pension) Department dated 25.11.2019 in so far as amendment made to G.O.Ms.No.315 Finance (Pension-I) Department dated 07.10.2010 under Para No.5 of the said G.O prescribing the eligibility to receive family pension up to the date of their children becoming majors and up to 45 years w.e.f issuance of G.O.Ms.No.315 Finance (Pension-I) Department dated 07.10.2010.
In all these petitions, the plea of the petitioners and the respondents is one and the same. Therefore, I find that it is expedient to decide all these petitions by common order treating the Writ Petition No.19671 of 2020 as leading case.
The petitioners impugned G.O.Ms.No.152 Finance (HR.III Pension) Department dated 25.11.2019 in all the writ petitions. The petitioners in Writ Petition No.19671 of 2020 and other petitioners are dependents on their parents due to divorce dissolving the marriage between the petitioners and their husbands or due to demise of their husbands. They were receiving family pension being the dependents on father/mother, who served as Government Servant and retired from service, as per their eligibility in terms of G.O.Ms.No.315 Finance (Pension-I) Department dated 07.10.2010. While the matter stood thus, an arbitrary decision as taken by the State and issued G.O.Ms.No.152 Finance (HR.III -Pension) Department dated 25.11.2019 amending G.O.Ms.No.315 Finance (Pension-I) Department dated 07.10.2010 disabling the widowed/divorced daughter being family pensioners, who attained the age of 45 years or whose children became majors. By virtue of G.O.Ms.No.315 Finance (Pension-I) Department dated 07.10.2010 all the petitioners became eligible for family pension being dependents on their parents, who died after their retirement as government servant on fulfilment of various other conditions as prescribed in the G.O.Ms.No.315 dated 07.10.2010. All the petitioners drawing family pension basing on the recommendations of the concerned department, in which their parents served and retired thereafter. The details of grant of pension in writ petition No.19671 of 2020 are given hereunder in the table.
Rule 50 of the Andhra Pradesh Revised Pension Rules, 1980 contemplates the scheme of family pension payable to the family members of the retired Government Servant. Rule 50 (12) (b) defines family in relation to the Government Servant. As per the said scheme, the family of the deceased Government Employee either retired or in service entitled to monthly family pension as prescribed under the Rules. The said Rule contemplates various types of family members eligible for Family Pension. While it is so, the Government of Andhra Pradesh vide G.O.Ms.No.438 GA (Spl A) Department, dated 07.07.2008 was pleased to constitute Ninth Pay Revision Commission. The said commission after due consideration of the existing Family Pension Rules and orders of Government of India vide O.M.F No.38/37/2008-P&PW(A), dated 02.09.2008 of Ministry of Personal and Public Grievances and Pensions, Department of Pension and Pensioners welfare, New Delhi and requests of various associations has made certain recommendations in respect of sanction of family pension. The sai
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