A classification based on the date of retirement of the employee for the purpose of granting family pension to widows is unreasonable and violative of Article 14 of the Constitution of India.

Debasish Kar Gupta, J.

1. Vires of the proviso to clause (i) of sub-regulation (14)(b) of Regulation 37 of the Calcutta Port Trust Employees' (Pension) Regulations, 1988 is under challenge in this writ application. Consequential relief is prayed for so far as releasing of monthly pension in favour of the petitioner is concerned. The facts of this case are stated below in a nutshell:-

2. The husband of the petitioner, late Anil Kumar Das, was working for gain under the respondent No. 1 in the post of Driver'. He retired from the above service on and from July 1, 1982 on attaining the age of retirement on superannuation. It appears from the materials on record that the name of the petitioner was incorporated in the pension payment order (page-30 of this writ application). Aforesaid late Anil Kumar Das was enjoying family pension under the Calcutta Port Trust Employees'(Pension) Regulations, 1988 (hereinafter referred to as 'the said Regulations, 1988). The first wife of the aforesaid late Anil Kumar Das breathed her last on January 1, 1989. On January 31, 1990, the aforesaid late Anil Kumar Das married the petitioner. The aforesaid Anil Kumar Das breathed his last on September 23, 2008. The petitioner submitted an application dated November 7, 2008 before the respondent-authority for releasing the family pension arising out of the above service of Late Anil Kumar Das in her favour. By virtue of the impugned order dated November 11,2008, the respondent-authority rejected the claim of the petitioner for granting family pension in her favour. The impugned order is quoted below:

Kolkata Port Trust

15, Strand Road, Kolkata-700001,

No. FIN/P/C/08/888

Dated 11.11.08

Smt. Shibani Das,

C/o Sri Chandan Majumder,

Vill. Bishnupur,

P.O. Purba Bishnupur,

PS. Chakdaha, Dist. Nadia,

West Bengal.

Madam,

Sub: Case No. 9128 C/A

Reference your application for grant of family pension in your favour and forwarding of copies of documents in support of your claim.

We have examined the file of papers and the documents submitted by you and it reveals that our ex-employee late Anil Kumar Das had retired from KoPT service from 01.07.1982 and your marriage with him was solemnized on 31.01.1990 i.e. after his retirement from the Trustees Service.

In terms of the Calcutta Port Trust Employees' (Pension) Regulations, 1988, as amended from time to time, family pension is admissible to a widow of ex-employee provided the marriage took place during his employment with KoPT.

Since your marriage was solemnized long after the date of retirement of the ex-employee and as KoPT Rule do not entertain any post-retiral marriage for the purpose of family pension, your claim for family pension as a wife of late Anil Kumar Das cannot be acceded to.

This is for your information.

Yours faithfully,

Sd/-

(S. Sengupta)

Officer on Special Duty (Finance)

For Financial Adviser & Chief Accounts Officer.

3. It is submitted by Mr. Bhattacharya, learned Advocate appearing on behalf of the petitioner that the ground for rejecting the claim of the petitioner was the provision of proviso to clause (i) of sub-regulation (14)(b) of Regulation 37 of the said Regulations, 1988. In terms of the above regulation, the petitioner was not entitled to get the benefit of family pension. According to him, the above provision of the said Regulations, 1988 is ultra vires the Constitution of India. According to him, equals were treated unequally by virtue of the above provision. It is further submitted by him that the classification creating a difference in between two legally married wives taking into consideration the date of retirement of the husband attaining the age of superannuation was unreasonable.

4. Reliance is placed by Mr. Bhattacharya on the decision of Smt. Bhagwanti vs. Union of India reported in AIR 1989 SC 2088 in support of his above submissions.

5. It is submitted by the learned Additional Solicitor General, in his usual fairness, that the law is well-settled on this issue. He further submits that in the