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2024 Supreme(Online)(MEGH) 345
HIGH COURT OF MEGHALAYA
Mr. Justice H. S. Thangkhiew, J
JAMSHED ALI – Appellant
Versus
STATE OF MEGHALAYA AND 4 ORS. – Respondent
WP(C) 161 / 2023
Mr. S.A. Sheikh, Adv.; Mrs. N.G. Shylla, Sr. GA with Ms. Z.E. Nongkynrih, GA(For R 1-3,5); Mr. K. Kharmawphlang, Adv. (For R 4)
The court affirmed that post-retiral spouses are entitled to family pension under the amended Rule 48, rejecting arbitrary exclusions as discriminatory under Article 14.
Headnote:(A) Meghalaya Civil Service (Pension) Rules, 1983 - Rule 48 - Family pension - The petitioner, a retired Government Teacher, sought to change the nomination in his pension papers after remarrying. The application was rejected based on an outdated interpretation of the rules. The court found that the amended Rule 48 allows family pension to post-retiral spouses, thus supporting the petitioner's claim. (Paras 2, 5, 6, 8)
(B) Constitutional Law - Article 14 - Discrimination - The court held that excluding post-retiral spouses from the definition of 'family' in pension rules is arbitrary and discriminatory, violating the right to equality. (Paras 6, 12, 13)
Facts of the case:
The petitioner, after the death of his first wife, married again and applied to change the nomination in his pension papers, which was rejected based on the rules not recognizing post-retiral spouses.
Findings of Court:
The court ruled that the amended Rule 48 permits family pension for post-retiral spouses, and the objection to the petitioner's application was unsustainable.
Issues: The main issue was whether the amended Rule 48 applies to the petitioner, allowing family pension to his second wife.
Ratio Decidendi: The court emphasized that pension rules must not discriminate against post-retiral spouses, affirming that the definition of 'family' must include them to avoid arbitrary exclusion.
Result: Writ petition allowed and disposed of.
| Table of Content |
|---|
| 1. petitioner seeks nomination change (Para 1) |
| 2. counsel argues for inclusion (Para 2) |
| 3. state's counsel defends rules (Para 3 , 4) |
| 4. court reviews rule 48 (Para 5) |
| 5. amended rule 48 explained (Para 6) |
| 6. court's reasoning on discrimination (Para 7 , 8) |
| 7. writ petition allowed (Para 9) |
JUDGMENT AND ORDER (ORAL)
1. The brief facts are that the petitioner a retired Government Teacher, on the demise of his first wife namely one Smti. Saleka Khatun, who was entered as a nominee in his pension papers had contracted a second marriage to one Smti. Alima Khatun, and an application was made before the respondent No. 3, for change of nomination in the pension papers. The same being rejected vide the impugned letter dated 10.01.2022, the writ petitioner is before this Court with the instant writ petition.
2. Mr. S.A. Sheikh, learned counsel for the petitioner has submitted that, the return of the application by the impugned letter dated 10.01.2022, was on the ground that the Meghalaya Civil Service (Pension) Rules 1983, particularly Note-2 of Rule 48 of the said Rules, did not recognise family pension to post retiral spouses of persons who retired before 01.01.2007. He submits that the ground taken is incorrect, inasmuch as, Rule 48 has since been amended vide a Notification dated 04.11.2010, wherein at Note- 2 of the said amended rules, provisions had been made for payment of family pension to post retiral spouses. It has further been submitted that, in the event of the petitioner’s death and if the name of the second wife is not entered as nominee, grave injustice will be caused to her. The learned counsel has then placed the following decisions in support of his case, and submits that by virtue of the ratio of the said cases, the instant case is also covered.
(i) Smti. Tipmon Lyngdoh vs. State of Meghalaya & Ors. (2016) SCC OnLine Megh 260 : 2017 Lab IC 559
(ii) Smti. Nanji T. Sangma vs. State of Meghalaya & Ors. (2016) SCC OnLine Megh 259: 2017 Lab IC (NOC 74) 25.
3. Mrs. N.G. Shylla, learned Senior Government Advocate appearing for the State respondents No. 1-3 and 5 has relied on the affidavit and submits that as the petitioner had retired on 30.06.2002, before the amendment including post-retirement spouses came into effect from 01.01.2007, the petitioner will not be covered by the said amendment.
4. Mr. K. Kharmawphlang, learned counsel for the respondent No. 4 has submitted that due to the stand taken by the State respondents, and by application of the relevant pension rules and Office Memorandum, the case cannot be settled by the said respondents, and that acceptance or rejection of such pension cases, is dependent on the provisions of the Rules and orders framed and amended by the Government of Meghalaya from time to time.
5. I have heard learned counsel for the parties. The only issue it can be seen is with regard to the applicability of the amendment to Rule 48 of the Meghalaya Civil Service (Pension) Rules 1983, which allows family pension to post retiral spouses. The amended Rule 48 for the sake of convenience is reproduced herein below.
“7. Amendment of Rule 48:- (1) Rule 48 (i) of the Principal Rule shall be renumbered as “48(1)” and substituted by the following:-
“48 (1) For the purpose of this rule, family shall include the following relatives of the Government servants:-
“(a) First Category:-
(i) Widow or widower, up to the date of death or re- marriage, whichever is earlier;
(ii) Son/daughter including widowed daughter up to the date of his/her marriage/re-marriage or till the date he/she starts earning or till the age of twenty five years, whichever is earlier.
Note 1 : (ii) above will include legally adopted sons/daughters.
Note 2 : Post-retiral spouses/children born after retirement:- The family pension is admissible to post- retiral spouses and children born/adopted legally after retirement.”
6. The amended Rule therefore, has clearly provided for post retiral spouses to be admissible for payment of family pension
