SAXENA, J.
1. By means of this writ petition, the petitioners have challenged the vires of the Note No. 2 of Rule 268-D of the Rajasthan Services Rule, 1951 (in short the 'RSR') and sought a mandamus declaring that a wife, who has contracted marriage after the death of first wife of a husband, who has retired from the Government service, is also included in the definition of word, 'family' and further declaring that Smt. Noor Bano (petitioner No. 2), the wife of petitioner No. 1, Ibrahim Khan, is entitled to family pension after his death.
2. Petitioner Ibrahim Khan retired on September 1, 1977 from the post of District Revenue Accountant in Collcctorate, Sikar. During his service period and at the time of retirement, he had nominated his wife Smt. Patasi as nominee and successor for grant of family pension. Consequent to his retirement, his pension case was finalised and pension payment order vide PPO order Annexure-2 after commutation of his pension were issued by the Treasury Officer, Churu. Sml. Palasi expired on March 16, 1979 as per death certificate (Annex.3) Thereafter on March 13, 1980, Ibrahim Khan contracted second marriage with Smt. Noor Bano, petitioner No. 2 according to the Muslim rites and a certificate of Kaji, who performed the said marriage was issued and copy thereof is Annex. 4. Ibrahmin Khan thereafter submitted an application dated January 13, 1982 (Annex.5) along with nomination papers, the photos of both husband and wife namely, petitioners Nos. 1 and 2 (Annex.6) duly attested by the District Notary, Churu and the death certification of Smt. Patasi, nominating his second wife Smt, Noor Bano as the person entitled to receive family pension. But that application was not entertained and was returned by the Chief Pension Officer with the endorsement dated January 27, 1982 to the effect that under Rule 268-D of the RSR any marriage contracted after the retirement, does not entitle the wife to claim family pension. Thereafter, the petitioner No. 1 relying on the law laid down in Smt. Bhagwanti v. Union of India (AIR 1989 SC 2088) submitted another application dated June 18, 1990 (Annex.7), to the Director, Pension Department (Respondent No. 2) praying for the grant of nomination in favour of his second wife Smt. Noor Bano for family pension through registered post and also as many as eight reminders, which failed to evoke any response. Ultimately, the petitioner also sent a D.O. letter dated July 20, 1991 to respondent No. 2 but that also failed to fetch any reply. The petitioner has alleged that the Note (2) under Rule 268-D of the RSR is wholly illegal, arbitrary and against the object and purpose of grant of family pension and prayed that the same be struck down.
3. The respondents in their counter dated February 17, 1992 have not disputed the factual position detailed in the writ petition, but have averred that under Rule 4-A of the RSR the benefit of pension and other retirementary benefits are regulated in light of the Rules in force and family pension of the members of the family as per the position as stood on the date of retirement of a Govt. employee. It has further been asserted that since petitioner No. 1 has re-married after his retirement, Smt. Noor Bano does not fall within the meaning of definition of 'family' under Rule 268-D of the RSR, because as per Note (2), marriage after retirement will not be recognised for the purpose of the said Rule. It has been reiterated that Note (2) under Rule 268-D is legal, proper and justified and the same is neither arbitrary nor violative of Article 14 of the Constitution of India.
4. We have heard the learned counsel for petitioners and the learned Dy. Government Advocate at considerable length and perused the relevant record.
5. Shri D.S. Shishodia, Sr. Advocate for petitioners, has vehemently contended that the pension to a Government employee is payable on the consideration of his past services rendered by him and that payability of the family pension is also basically on the self-same consideration. He has contended that the distinction between the marriage by a Government servant during service and marriage after retirement made under Note (2) of Rule 268-D is clearly arbitrary, unjustified, discriminatory and unconstitutional. He has relied on Smt. Bhagwanti. v. Union of India (supra), Smt. Shanti Devi v. Union of India (1990-I-RLR 85) and M.V. Mathai v. State of Kerala and Ors. 1991-II-LLJ-392.
6. On the other hand, Shri S.M. Singhvi, the learned Dy. Government Advocate has reiterated that at the time of retirement, Smt. Patasi was appointed as the nominee by the petitioner Ibrahim Khan, who has expired and that keeping in view the specific provisions of Rule 4-A read with Rule 268-D, Note (2) of the RSR, marriage after retirement cannot be recognised for any family pension and, therefore, respondent (petitioner) No. 2 is not entitled for family pension.
7. We have given our most earnest attention and anxious consideration to the rival submissions.
8. Rule 268-D(1) of RSR and the notes appended thereunder, are reproduced ad infra:-
268-D Definitions (1) 'Family', for the purpose of this chapter, will include the following relations of the officers:
(a) wife, in the case of a male officer:
(b) husband, in the case of a female officer;
(c)minor sons; and
(d) unmarried minor daughters.
NOTES
(1) (c) and (d) will include children adopted legally before retirement.
(2) Marriage after retirement will not be recognised for the purpose of this rule.'
9. The sole contention projected on behalf of the respondents is that family pension is not admissible to the spouse, who gets married after the retirement of the Government servant because such post-retirement marriage cannot be recognsied for the purpose of Rule 268-D of the RSR. Therefore, the only question for our consideration is whether the spouse i.e. the wife, in case of a male officer or husband in case of a female officer, as the case may be, married after the retirement of the concerned Government servant can be kept out of the definition of 'family' as contained in Rule 268-D of the RSR so as to deprive him/her for the benefit of the family pension and whether Note (2), which proclaims that marriage after retirement will not be recognised for the purpose of the said rule is unjustified, arbitrary and violative of Article 14 of the Constitution of India?
10. It is a well crystallized position of law that pension is not only compensation for the service rendered in the past, but it also has a broader significance, in that it is a measure of socio-economic justice, which inheres economic security in the fall of life when physically and mental prowess is ebbing correspondent to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when the employee gave his best in the hey-day of life to his employer in days of invalidity, economic security by way of periodical payment is assured in the form of pension. The term 'pension' has been judicially defined as a stated allowance of stipend paid in consideration of past service or a surrender of rights or emoluments to one, who retired from service. Thus, the pension payable to a Government employee is earned by rendering long and efficient service and, therefore, can be said to be a deferred portion of the compensation for service rendered (Please see D.S. Nakara v. Union of India 1983-I-LLJ-104)
11. In Devki Nandan Prasad v. State of Bihar 1971-I-LLJ-557 at 568, the Apex Court observed as under : (p.568)
'The payment of pension does not depend upon the discretion of the Government, but is governed by the relevant rules and any one entitled to the pension under the rules can claim it as a matter of right.'
12. In Smt. Punamal v. Union of India (AIR 1985 SC 1196), it was pointed out 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. In fact, we look upon pension not merely as a statutory right but as the fulfilment 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.'
13. Rule 54(14)(b) of the Central Civil Service (Pension) Rules, 1972 defined the term, 'family' in relation to a Government servant and meant wife in case of a male Government servant or husband in the case of a female Government servant, provided the marriage took place before retirement of the Government servant. In Bhagwanti v. Union of India (cited supra), the said rule was challenged. The Apex Court held as under: -
'Pension is payable on the consideration of past service rendered by the Government servant. Payability of the family pension is basically on the self-same consideration. Since pension is linked with past service and the avowed purpose of the Pension Rules is to provide sustenance in old age, distinction between marriage during service and marriage after retirement appears to be indeed arbitrary. Thus, there is no justification to keep post-retirement marriage out of the purview of the definition of the term 'family' in Rule 54(14)(b) of the Rules.'
14. The Supreme Court also held that the limitation included in Rule 54(14') (b) incorporated in the definition of 'family' suffered from the vice of arbitrariness and discrimination and that the same could not be supported by nexus or reasonable classification. Accordingly, the words, 'provided the marriage took place before the retirement of the Government Servant', in Clause (i) and, 'but shall not include son or daughter born after retirement' in Clause (ii) of Rule 54(14) (b) were declared ultra vires of Article 14 of the Constitution of India and those were struck down.
15. This court in Shanti Devi v. Union of India (supra) relying on the law laid down in Bhagwanti's case reiterated that the denial of family pension on the ground of marriage solemnised after retirement to a widow of an Army personnel, was unconstitutional and that it was immaterial whether the marriage had been performed by the Army personnel after discharge from service within a period of five years or thereafter.
16. In M.V. Mathai v. State of Kerala (supra) Note (2) of Rule 90 (6) of Kerala Service Rules (Part-III) which proclaimed that 'marriage after retirement will not be considered for the purpose of grant of family pension', which is almost similar and akin to Note (2) of Rule 268-D of the RSR, has been held to be arbitrary and violative of Article 14 of the Constitution of India and the same was struck down and it was held that the second wife of the Government employee, whose marriage was solemnised after retirement was a member of the family and as such she was entitled for the family pension.
17. Almost similar are the facts of the case in hand. Petitioner Ibrahmin Khan on his retirement i.e. on September 1, 1977 acquired the right to get pension and his family members who got the benefit of family pension on account of the services rendered by him to the State of Rajasthan as per Rule 4-A of the RSR. The right to get pension was ensured to him right from the date of his retirement. The liability of the Government to pay family pension arises on the death of the pensioner. The family pension is to be paid to the family of the pensioner as on the date of his death. A Government servant cannot have second wife during the life time of his service. The second marriage should, therefore, be in conformity with law. Pension is linked with the past service and a family pension scheme is devised to compensate family of the Government servant in lieu of services rendered by him after his death. Since, the pension is linked with the past service of an employee and the avowed purpose of the pension rules is to provide sustenance in old age, distinction between marriage during service and marriage after retirement is clearly arbitrary, unjustified and violative of Article 14 of the Constitution of India. Hence, the second wife, who has contracted marriage with a Government employee after his retirement is positively a member of the family on the date of the death of pensioner's death and hence, the Government is liable to pay family pension to her. Therefore, we are of the considered opinion that Note (2) to Rule 268-D of the RSR is clearly discriminatory and violative of Article 14 of the Constitution of India and as such the same deserves to be struck off.
18. In the premise of the above discussion, we allow this writ petition and strike down Note (2) of Rule 268-D of the RSR, which proclaims that a marriage after retirement will not be recognised for the purpose of Rule 268-D of the Rajasthan Service Rules, 1951 and declare that a wife, who has contracted marriage after the death of the first wife of a retired husband from Government service, is also included in the definition of word 'family' as envisagedby Rule 268-D of the RSR. We also declare that Smt. Noor Bano, petitioner No. 2, wife of petitioner No. 1 Ibrahim Khan, is also entitled to family pension after his death. The respondents are also directed to accept the application filed by Ibrahmin Khan appointing his wife Smt. Noor Bano as his nominee and to make relevant entries in their record accordingly. No order as to costs. A copy of this judgment be sent to the Chief Secretary, Govt. of Raj. Jaipur for information and necessary action.