Sanjay K. Agrawal, J
1. The petitioner herein seeks to challenge the constitutional validity of Rule 12(2)(i) as well as Rule 12A of the Chhattisgarh Civil Services (Extraordinary Pension) Rules, 1963 (for short, ‘the Rules of 1963’) being violative of her fundamental right guaranteed under Article 21 of the Constitution of India and also eventually seeks to challenge the order dated 2-9-2022 (Annexure P-1) holding / affirming that the petitioner is not entitled for family pension as per Rule 12(2)(i) of the Rules of 1963.
2. The aforesaid challenge has been made on the following factual backdrop: -
3. The petitioner herein was married to Shri Deepak Upadhyay, who was serving as Constable in the Department of Home and he died while he was on official duty on 25-5-2013 at Bastar and consequently, apart from other benefits, she was granted special pension of ₹ 20,700/- per month under the Rules of 1963 by order dated 29-6-2019 which the competent authority has withdrawn by order dated 24-6-2022 / 27-6-2022 (Annexure P-11) with effect from the date of remarriage i.e. 4-6-2021 on the ground that the petitioner has remarried and directed to be withdrawn. Prior to order dated 24-6-2022, the petitioner had filed W.P.(S) No.3911/2020 before this Court in which a prayer was made for not stopping the special family pension to her which was disposed of by the Court to be premature and ultimately, when this order dated 2-9-2022 was passed affirming the withdrawal of family pension, the petitioner has filed this writ petition calling in question Rule 12(2)(i) as well as Rule 12A of the Rules of 1963 pleading inter alia that right to marriage is a part of right to life under Article 21 of the Constitution of India and withdrawal of special family pension on account of her remarriage is violative of the fundamental right guaranteed under Articles 14 & 21 of the Constitution of India. In that view of the matter, Rules 12(2) (i) & 12A of the Rules of 1963 deserve to be declared ultra vires to the provisions of the Constitution of India and violative of her rights guaranteed under Articles 14 & 21 of the Constitution of India.
4. Return has been filed on behalf of the State / respondents No.1 to 5 and 7 stating inter alia that the constitutional validity of a rule can be challenged on a limited ground and there is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It has further been stated that a subordinate legislation can be challenged on the grounds of lack of legislative competence to make the subordinate legislation, violation of fundamental rights guaranteed under the Constitution of India, violation of any provision of the Constitution of India, failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act, repugnancy to the laws of the land, that is, any enactment, and manifest arbitrariness / unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules). Rule 12(2)(i) as well as Rule 12A of the Rules of 1963 do not suffer from any of the jurisdictional incompetence and since the petitioner had already remarried, therefore, by virtue of Rule 12(2)(i) of the Rules of 1963, she is not entitled for family pension and she has rightly been withdrawn the family pension coupled with the fact that she had already been granted compassionate appointment and in that view of the matter, the writ petition deserves to be dismissed.
5. Short rejoinder has been filed controverting the allegations made in the return.
6. Mr. Sourabh Sahu, learned counsel appearing for the petitioner, would submit that Rule 12(2)(i) of the Rules of 1963 restricting the right of withdraw of the Government servant to get special pension till remarriage is violative of the fundamental right guaranteed under Articles 14 & 21 of the Constitution of India and similarly, Rule 12A of the Rules of 1963 is also violative of the fundamental right, as right to marriage is a fundamental right and choice as it forces a widower to marry out of its choice which is illegal and contrary to law in different personal laws on marriage in India. He would further submit that the provisions contained in Rules 12(2)(i) & 12A of the Rules of 1963 are violating the fundamental rights / personal liberty and privacy of a widow, as the choice of woman in choosing her partner in life is a legitimate constitutional right and the provisions of the Rules of 1963 are snatching the right of the widow to choose a life partner of its choice, as such, it be declared ultra vires and consequently, the order Annexure P-1 be quashed.
7. Mr. Amrito Das, learned Additional Advocate General appearing for the State / respondents No.1 to 5 and 7, would support Rules 12(2)(i) & 12A of the Rules of 1963 and submit that the said Rules are neither unconstitutional nor violative of the petitioner’s right to get family pension and grant of extraordinary pension is a statutory right as provided under the provisions of the Rules of 1963. He would further submit that since the petitioner has remarried, it has been withdrawn in view of the provision contained in Rule 12(2)(i), more particularly, the State had already granted compassionate appointment to the petitioner as mentioned in paragraph 14 of the return. Considering the limited scope of interference in adjudging the constitutional validity, the writ petition deserves to be dismissed.
8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.
9. The question that involved in the writ petition is two fold,
1. Whether Rule 12(2)(i) of the Rules of 1963 is unconstitutional and liable to be struck down; and
2. Whether Rule 12A of the Rules of 1963 is unconstitutional and liable to be struck down?
Principles for E xamining Constitutional Validity : -
10. A Statute is construed so as to make it effective and operative on the principle expressed in the maxim “ut res magis valeat quam pereat”. Therefore, a presumption that the Legislature does not exceed its jurisdiction, and the burden of establishing that the Act is not within the competence of the Legislature, or that it has transgressed other constitutional mandates, such as those relating to fundamental rights, is always on the person who challenges its vires. (See Principles of Statutory Interpretation by Justice G.P. Singh, 12th Edition, page 592.)
11. It is a settled principle of law that the Statute enacted by the Parliament or State Legislature cannot be declared unconstitutional lightly. The Court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provisions under challenge cannot stand.
12. The Constitution Bench of the Supreme Court in the matter of Shayara Bano v. Union of India and others (Ministry of Women and Child Development Secretary and others) (2017) 9 SCC 1 held that legislation can be struck down if it is manifestly arbitrary and manifest arbitrariness is the ground to negate legislation as well under Article 14 of the Constitution of India. It has been observed by their Lordships as under: -
“101.It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India (1985) 1 SCC 641 : 1985 SCC (Tax) 121 stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.”
13. Very recently, in the matter of Dr. Jaya Thakur v. Union of India and others 2023 SCC OnLine SC 813, it has been held by three-judge Bench of the Supreme Court that judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive by observing as under: -
“68. It could thus be seen that the role of the judiciary is to ensure that the aforesaid two organs of the State i.e. the Legislature and Executive function within the constitutional limits. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The role of this Court is limited to examine as to whether the Legislature or the Executive has acted within the powers and functions assigned under the Constitution. However, while doing so, the court must remain within its self-imposed limits.”
14. Thereafter, in Dr. Jaya Thakur (supra), their Lordships of the Supreme Court relying upon their earlier judgment in the matter of Binoy Viswam v. Union of India and others (2017) 7 SCC 59 and reviewing their earlier decisions, speaking through B.R. Gavai, J., have held that the statute enacted by Parliament or a State Legislature cannot be declared unconstitutional lightly, and observed as under: -
“70. It could thus be seen that this Court has held that the statute enacted by Parliament or a State Legislature cannot be declared unconstitutional lightly. To do so, the Court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provision under challenge cannot stand. It has been held that unless there is flagrant violation of the constitutional provisions, the law made by Parliament or a State Legislature cannot be declared bad.
71. It has been the consistent view of this Court that legislative enactment can be struck down only on two grounds. Firstly, that the appropriate legislature does not have the competence to make the law; and secondly, that it takes away or abridges any of the fundamental rights enumerated in Part III of the Constitution or any other constitutional provisions. It has been held that no enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or the other constitutional infirmity has to be found before invalidating an Act. It has been held that Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom.
72. It has been held by this Court that there is one and only one ground for declaring an Act of the legislature or a provision in the Act to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. It has further been held that if two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. It has been held that the Court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope.
73. It has consistently been held that there is always a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt. It has been held that if the law which is passed is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a court may think of it.
74. It could thus be seen that the challenge to the legislative Act would be sustainable only if it is established that the legislature concerned had no legislative competence to enact on the subject it has enacted. The other ground on which the validity can be challenged is that such an enactment is in contravention of any of the fundamental rights stipulated in Part III of the Constitution or any other provision of the Constitution. Another ground as could be culled out from the recent judgments of this Court is that the validity of the legislative act can be challenged on the ground of manifest arbitrariness. However, while doing so, it will have to be remembered that the presumption is in favour of the constitutionality of a legislative enactment.”
15. Furthermore, in the matter of Dental Council of India v. Biyani Shikshan Samiti and another5, their Lordships of the Supreme Court have held that there is always a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. B.R. Gavai, J., speaking for the Supreme Court, held in paragraphs 27 & 28 of the report as under: -
“27. It could thus be seen that this Court has held that the subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition, it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. Though it may also be questioned on the ground of unreasonableness, such unreasonableness should not be in the sense of not being reasonable, but should be in the sense that it is manifestly arbitrary.
28. It has further been held by this Court in the said case that for challenging the subordinate legislation on the ground of arbitrariness, it can only be done when it is found that it is not in conformity with the statute or that it offends Article 14 of the Constitution. It has further been held that it cannot be done merely on the ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant.”
16. Similarly, in the matter of PGF Limited and others v. Union of India and another (2015) 13 SCC 50, their Lordships of the Supreme Court have laid down certain guidelines by taking note of certain precautions to be observed whenever the vires of any provision of law is raised before the Court and cautioned the Courts in paragraph 37 as under: -
“37. The Court can, in the first instance, examine whether there is a prima facie strong ground made out in order to examine the vires of the provisions raised in the writ petition. The Court can also note whether such challenge is made at the earliest point of time when the statute came to be introduced or any provision was brought into the statute book or any long time-gap exists as between the date of the enactment and the date when the challenge is made. It should also be noted as to whether the grounds of challenge based on the facts pleaded and the implication of the provision really has any nexus apart from the grounds of challenge made. With reference to those relevant provisions, the Court should be conscious of the position as to the extent of public interest involved when the provision operates the field as against the prevention of such operation. The Court should also examine the extent of financial implications by virtue of the operation of the provision vis-a-vis the State and alleged extent of sufferance by the person who seeks to challenge based on the alleged invalidity of the provision with particular reference to the vires made. Even if the writ court is of the view that the challenge raised requires to be considered, then again it will have to be examined, while entertaining the challenge raised for consideration, whether it calls for prevention of the operation of the provision in the larger interest of the public. We have only attempted to set out some of the basic considerations to be borne in mind by the writ court and the same is not exhaustive. In other words, the writ court should examine such other grounds on the above lines for consideration while considering a challenge on the ground of vires to a statute or the provision of law made before it for the purpose of entertaining the same as well as for granting any interim relief during the pendency of such writ petitions. For the abovestated reasons it is also imperative that when such writ petitions are entertained, the same should be disposed of as expeditiously as possible and on a time-bound basis, so that the legal position is settled one way or the other.”
Challenge to Rule 12(2)(i) of the Rules of 1963: -
17. Now, we shall deal with the constitutional validity of Rule 12(2)(i) of the Rules of 1963.
18. The Rules of 1963 came into force with effect from 3-5-1963 and since then they are in force and stood the test of time. It is a piece of beneficial legislation framed by the competent authority under the proviso to Article 309 of the Constitution of India. The entitlement under the said Rules are not in derogation to the pension entitled under any other law which is evident from Rule 5 and which reads as under: -
“5. Except as otherwise provided in these rules, an award made under these rules shall not effect any other pension or gratuity for which the Government servant concerned or his family may be eligible under any other rules for the time being in force and the pension granted under the provisions of these rules shall not be taken into account in fixing the pay of the pensioner on his continued employment or re-employment in Government service, but any part thereof not exceeding half may be withheld by Government during such period of continued employment or re-employment.”
19. The Rules of 1963 confers a special privilege in terms of financial assistance being rendered by the State Government to the family of the deceased Government servant and the said entitlement under the extraordinary pension is therefore strictly governed by the terms and conditions as are prescribed under the Rules of 1963 and not otherwise. Rule 9 provides for grant of special scale of gratuity and pension as provided for under Schedule II of the Rules of 1963 on account of any injury sustained by a Government servant. Rule 10 provides for grant of award to the family of a Government servant who is killed or dies of injuries, whether as a ‘special risk of office’ or ‘risk of office’. Both ‘special risk’ and ‘risk of office’ has been defined under Rule 3 to mean any risk which the Government servant is exposed to on account of the nature of duty. Rule 11 provides the object and reason for grant of such awards under the Rules of 1963 and it states as under: -
“11. The family pension granted under rule 10 of these rules shall be for the maintenance of the family. The authority sanctioning pension shall specify to whom it shall be paid, and in the event of a dispute, the authority shall be competent to apportion the pension amounts to different members of the family and may direct accordingly.”
20. A careful perusal of Rule 11 of the Rules of 1963 would show that special pension under the Rules of 1963 is for the maintenance of the family of the deceased Government servant who had put his life at risk in discharge of his official duties. The said privilege is not a bonanza and cannot be considered as an indefeasible right of the family to receive the extraordinary pension notwithstanding the conditions prescribed under the Rules of 1963, particularly, Rules 12 and 12A of the Rules. At this stage, it would be appropriate to notice Rule 12(2)(i) of the Rules of 1963, which states as under: -
“12. (1) xxx xxx xxx
(2) A family pension will ordinarily be tenable—
(i) in the case of a widow or widower or mother, until death or remarriage whichever occurs earlier;
xxx xxx xxx
xxx xxx xxx
Note.—The family pension of a widow will cease on re-marriage; but when such remarriage is annulled by divorce, or desertion of the second husband, her pension may be restored upon proof that she is in necessitous circumstances and otherwise deserving.”
21. A focused glance of the aforesaid provision would reveal that Rule 12(2)(i) of the Rules of 1963 prescribes the limits of entitlement of family pension under the Rules of 1963. Clause (i) of sub-rule (2) of Rule 12 states that a family pension will ordinarily be tenable in the case of a widow or widower or mother, until death or remarriage, whichever occurs earlier. As such, remarriage, with which we are concerned, has been made tenable till he or she remarries. However, the right to remarry has not been taken away by this Rule i.e. Rule 12(2)(i) of the Rules of 1963. Since the award of family pension under the Rules of 1963 is for the purpose of special privilege i.e. for maintenance of family as reflected in Rule 11, such an award of special privilege / family pension has been made subject to remarriage of the person claiming family pension.
22. The object of family pension has been considered by their Lordships of the Supreme Court in the matter of Smt. Poonamal and others v. Union of India and others (1985) 3 SCC 345 relying upon its earlier decisions in the matters of Deoki Nandan Prasad v. State of Bihar (1971) 2 SCC 330, State of Punjab v. Iqbal Singh (1976) 2 SCC 1 and D.S. Nakara v. Union of India (1983) 1 SCC 305, by holding that where the Government servant rendered service, to compensate which a family pension scheme is devised, the widow and the dependent minors would equally be entitled to family pension as a matter of right. Their Lordships further held that family pension is not merely a statutory right but it is the fulfillment of a constitutional promise inasmuch as it partakes the character of public assistance in cases of unemployment, old-age, disablement or similar other cases of undeserved want. Relevant rules merely make effective the constitutional mandate. Their Lordships also held that family pension is a measure of socio-economic justice which has been devised to help the widows tide over the crisis and till the minor children attain majority to extend them some succour.
23. As such, family pension under the Rules of 1963 has been conferred to the family of the deceased Government servant for maintenance of family till his or her remarriage. Since the award of family pension under the Rules of 1963 is for the purpose of special privilege as being the widower / widow of the deceased Government servant, as the case may be, the said award would stop upon remarriage. The said provision regulating the grant of family pension cannot be said to be bad or violative of any fundamental right, as it has specific object to be fulfilled and the family pension under the Rules of 1963 entitles to both a widow and widower alike. The allegation on the part of the petitioner that the said provision is gender biased is wholly untenable as it is neither gender specific nor gender biased.
24. In view of the aforesaid legal analysis, we are of the considered opinion that the petitioner has failed to demonstrate that the provision contained in Rule 12(2)(i) read with the note appended to Rule 12(2) that the family pension of a widow will cease on remarriage and will not be entitled for family pension on remarriage, is ultra vires to the provisions of the Constitution of India. More particularly, as per the affidavit filed by the State / respondents No.1 to 5 and 7, compassionate appointment has already been granted to the petitioner to maintain herself and her family. Rule 12(2)(i) of the Rules of 1963 is in the statute book for last 60 years and it has served larger public interest for which it was enacted and therefore on this ground also, in light of the principle of law laid down in PGF Limited (supra), challenge made to the said Rule deserves to be rejected. In that view of the matter, challenge to the constitutional validity of Rule 12(2)(i) of the Rules of 1963 fails and is hereby rejected.
Challenge to Rule 12A of the Rules of 1963: -
25. Rule 12A of the Rules of 1963 provides as under: -
“12A. Notwithstanding anything contained in clause (i) of sub-rule (2) of rule 12, a widow of an employee who re-marries her deceased husband's brother and continues to live a communal life with, or contributes to the support of other dependents of the deceased shall not be disqualified for the grant of extraordinary pension, otherwise admissible to her under these rules.”
26. Rule 12A is an exception to Rule 12(2)(i) of the Rules of 1963. Remarriage of a widow with the brother of the deceased husband does not bring cessation of relationship with the family of the deceased husband and therefore considering the fact that the award of family pension is for the maintenance of the family, the same would not cease on remarriage. However, since, admittedly, on the own showing of the petitioner, she has remarried on 4-6-2021, challenge to the constitutional validity of Rule 12A of the Rules of 1963 would not directly arise for consideration before this Court. Constitutional issues should not be decided unless that is necessary to do for the purpose of giving relief in a given case
(see Govt. of National Capital Territory, Delhi v. Inder Pal Singh Chadha and others (2002) 9 SCC 461).
27. Similarly, a person who challenges the constitutionality of a statute must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the enforcement of the statute and the injury complained of is justiciable. (See K.C. Pazhanimala and others v. State of Kerala and others AIR 1969 Kerala 154.)
28. The principle that the party who invokes the power of the Court to annul an Act of the Legislature, must be able to show not only that the statute is illegal but that he has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement and not merely that he suffers in some indefinite way in common with people generally, is more applicable to proceedings under Article 226 which are of a summary and coercive nature without providing for a normal trial or a right of appeal, except, in those cases where a substantial question of the interpretation of the Constitution arose. (See Indian Sugar Mills Association through its President Shri Hari Raj Swarup v. Secy. to Government, Uttar Pradesh Labour Department and other Opposite Parties AIR 1951 Allahabad 1.)
29. A person whose rights and interests are adversely affected by an unconstitutional law can challenge the validity of the law on any ground which affects such validity. For instance, he can challenge the validity of the law on the ground that the subject-matter of legislation was not within the province of the Legislature which passed the law. He can also challenge the validity of the law on the ground that it infringes one of the Fundamental Rights conferred by the Constitution. In such a case, it is not necessary that the Fundamental Right infringed must be that of the person who challenges the constitutionality of the law. (See Dwarkadas Shrinivas v. The Sholapur Spinning & Weaving Co. Ltd. and others AIR 1954 SC 119.)
30. This would bring us to the facts of the present case. Admittedly, the petitioner had already remarried, she has not sustained any injury or she is not immediately in danger of sustaining any direct injury as the result of the enforcement of Rule 12A of the Rules of 1963 and challenge to the constitutional validity of Rule 12A of the Rules of 1963 does not actually arise for consideration. More particularly, no relief even is grantable to the petitioner in this regard in view of the subsequent event that has taken place as remarriage of the petitioner. Moreover, Rule 12A of the Rules of 1963 has been in the statute book with effect from 3-5-1963 till date now and as such, it is in force for 60 years and it stood the test of time serving larger public interest.
31. Concludingly, since Rule 12A of the Rules of 1963 is in the rule book for fairly long time since 3-5-1963 i.e. for more than 60 years and stood the test of time and the petitioner having remarried already, constitutional validity of Rule 12A does not directly arise for consideration before us, as constitutional issues should not be decided unless it is necessary to do so for granting relief in a given case. In view of the aforesaid factual backdrop noticed herein-above, no relief in that regard is grantable to the petitioner and we hereby decline to examine the constitutional validity of Rule 12A of the Rules of 1963.
32. In the result, Rule 12(2)(i) of the Rules of 1963 is held to be neither unconstitutional nor violative of the petitioner's right under Articles 14 & 21 of the Constitution of India and similarly, constitutional validity of Rule 12A of the Rules of 1963 need not be gone into in view of the finding recorded herein-above. Accordingly, the writ petition fails and is hereby dismissed leaving the parties to bear their own cost(s).
