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SMT. KALYANI DEVI versus STATE OF U.P. THRU' SECY. (BASIC) EDUCATION & ORS.

High Court of Judicature at Allahabad

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SMT. KALYANI DEVI v. STATE OF U.P. THRU' SECY. (BASIC) EDUCATION & ORS. - WRIT - A No. 13721 of 2002 [2004] RD-AH 25 (16 January 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.37

Civil Misc. Writ Petition No. 13721 of  2002

Smt. Kalyani Devi v. The State  of U.P. and others.

Hon'ble R.K.Agrawal, J.

By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Smt. Kalyani Devi, seeks a writ, order or direction in the nature of certiorari quashing the order dated 28th February, 2002 passed by the Finance and Accounts Officer, Basti, respondent no.3 and the order dated 29th March, 2001 issued by the Financial Controller, Basic Shiksha Parishad, U.P. Allahabad, respondent no.4, filed as Annexure 10 to the writ petition and also issuance of a writ of mandamus commanding the respondents no.3 and 4 to pay family pension to the petitioner month by month as per revised and new family pension scheme as also the arrears of family pension since 19.9.1991 and other consequential relief.

Briefly stated the facts giving rise to the present petition are as follows:-

The husband of the petitioner Late Sri Ram Chandra Pandey was posted as Assistant Teacher in Primary Pathshala, Mannipur Sahdauli, Gola, District Gorakhpur.  It was a school run by the District Basic Education Board.  He  retired from service on attaining the age of superannuation on 30th June, 1977 and was paid pension under the Triple Benefit Scheme as enforced by the State Government.  The husband of the petitioner died on 19th September, 1991.  It may be mentioned here that under the Triple Benefit Scheme, the persons working in Primary Schools, Junior High Schools, Higher Secondary School, Degree Colleges and Training Colleges, which were aided by the State, were entitled to contributory provident fund, insurance cover and pension only.  Vide Government Order dated 8th March, 1978, the State Government provided pension on the same rate to the these persons as was applicable to the persons working in Government colleges and calculation was to be made according to the sum payable to the Government employees.  However, it was provided that the teachers would not be entitled for death-cum-retirement gratuity or family pension after their death.  It was also provided in the aforesaid Government Order that option form from teachers may be obtained uptill 30th June, 1978.  Subsequently, vide Government Order dated 6th June, 1981 upto 31st December, 1981 the time for submission of option form was extended.  The petitioner submitted his option form before that date on 16.3.1981 and also deposited the amount of contribution of provident fund suo motu.  It appears that the retired teachers as also the teachers who were not working in the State aided institutions made some representations for payment of family pension and the State Government considering the popular demand vide Government Order dated 31st March, 1982 modified the Government Order dated 31st March, 1978 and other Government Orders in so far as they relate to family pension and providing that from 1st October, 1981 the family members of the retired teachers would also be entitled for family pension.  A doubt was raised as to whether those teachers who have died before 1st October, 1981, their family members would be entitled for family pension or not.  The Government issued an order dated 16th June, 1984 in which it was clarified that the scheme for family pension would be applicable even in respect of those persons who have died on or before 1st October, 1981 but the family members would not be entitled for any arrears prior to 1st October, 1981.  The relevant portion of the Government Order dated 16th June, 1984 is reproduced below:-

"UPARYUKTA VISHAYAKA SHASNADESH SANKHYA 6246/15-8-3004(16)/77, DINANK 31 MARCH 1982 KA SPASHTIKARAN KARATE HUYE MUJHE YEH KAHANE KS NIRDESH HUA HAI KI ZILA VIDYLAYA NIRIKSHAK, MUJAFFARNAGAR NE APANE PATRANK PARIVARIK (PENSION) 7472-75/83-84 DINANK 21-1-84 DWARA YEH PRICHCHHA KEE HAI KISEE ADHYAPAK KEE MRITYU YADI 1-10-81 KE POORVA HO GAYEE HAI TO USAKE ASHRITON KO PARIVARIK PENSION KA LABH MILEGA, ATHAVA NAHIN?   IS SAMBANDHA MEIN YEH SPASHTA KIYA JATA HAI KI PRASHNAGAT RAJAGYA KE UPBANDHON KE ADHEEN YADI MRITAK ADHYAPAK KE ASHRITON KO ANYATHA PARIVARIK PENSION DEYA HO TO CHAHE ADHYAPAK KEE MRITYU 1-10-81 KE POORVA HUYEE HO ATHAVABAD MEIN HUYEE HO, USAKE ASHRITON KO DINANK 1-10-81 SE RAJAGYAN KE PRAVIDHANON KE ADHEEN PARIVARIK PENSION SWEEKRITA KEE JAYEGEE. AGRETAR YEH BHEE SPASHTA KIYA JATA HAI KIMRITAK ADHYAPAK KE ASHRITON KO 1-.10-81 SE POORVA KEE AVADHI KE LIYE KOYEE AVSHESH ADI KE BHUGTAN KA PRISHNA NAHIN UTHATA, KYONKI PRASHNAGAT YOJANA 1-10-81 SE LAGOO KEE GAYEE HAI." (emphasis supplied)

After the death of the husband of the petitioner on 19th September, 1991 the petitioner made an application for payment of family pension in terms of the Government Order dated 31st March, 1982.  However, her claim was rejected on the ground that the option submitted by her husband on 16th March, 1981 is suspicious as on that date there was no  provision for giving any option and it was only extended by Government Order dated 6th June, 1981 till 31st December, 1981.  Moreover, the amount has been deposited suo motu which cannot be accepted.

I have heard Sri R.C.Shukla, learned counsel for the petitioner, the learned Standing Counsel, who represents respondents no.1 and 3 and Sri B.P. Singh who represents respondents no.2,4 and 5.

The learned counsel for the petitioner submitted that the petitioner is entitled for family pension as under the Government Order dated 31st March, 1982 the earlier Government Order dated 8th March, 1978 had been modified and the plan of family pension has been made applicable from 1st October, 1981 which was subsequently clarified vide Government Order dated 16th June, 1984 providing that where the persons who have been retired and died before 1st October, 1981, their family members would be entitled for family pension but they would not be entitled for arrears prior to 1st October, 1981.  He relied upon a decision of this Court in the case of Mst.Sajida Begum v. Secretary, Basic Education U.P. and others, 2002(1) AWC 548 and a decision of the Hon'ble Supreme Court in the case of  Dhan Raj and others v. State of Jammu & Kashmir and others, (1998)2 UPLBEC 1525.

Sri B.P.Singh, learned counsel appearing for the respondents no. 2, 4 and 5, however, submitted that  the scheme of family pension has been introduced on 1st October, 1981 and as the petitioner's husband  had retired prior to that date the petitioner is not entitled for family pension.  He laid emphasis on the words "YADI MRITAK ADHYAPAK KO ANYATHA PARIVARIK PENSION DEYA HO." mentioned in the Government Order dated 16th June, 1984 and submitted that as the family members of the petitioner's husband were not entitled for family pension there is no question of grant of family pension.  He relied upon a decision of the Hon'ble Supreme Court in the case of  State of West Bengal and others v. Ratan Behari Dey and others, (1993) 4 SCC 62 and Commander Head Quarter, Calcutta and others v. Capt. Biplabendra Chanda, JT 1997 (10) SC 371 and submitted that the scheme of family pension is available only from 1st October, 1981 and is not applicable in the present case.

Having heard the learned counsel for the parties I find that vide Government Order dated 31st March, 1982 the State Government had revoked the condition of non-entitlement of family pension in the Government Order dated 8th March, 1978 and introduced the scheme of family pension which was made applicable from 1st October, 1981.  On a doubt being raised the State Government vide order dated 16th June, 1984 clarified that even in the case where a teacher has retired or died prior to 1st October, 1981, his family members would be entitled for family pension from 1st October, 1981 but would not be entitled for any arrears.  Thus, the intention of the State Government is very clear that even those teachers who had retired earlier and have died prior to 1st October, 1981, their family members would be entitled for family pension from 1st October, 1981 onwards.  However, they would not be entitled for arrears.  The words "YADI MRITAK ADHYAPAK KO ANYATHA PARIVARIK PENSION DEYA HO."does not convey the intention advanced by Sri B.P.Singh.  It is an admitted position that prior to 1st October, 1981 the teachers of State aided educational institutions were not entitled for family pension.  The scheme has been introduced for the first time from 1st October, 1981 vide Government Order dated 31st March, 1982.  Thus, those teachers who have retired prior to 1st October, 1981 were not entitled to family pension if the Government Order dated 31st March, 1982 and 16th June, 1984 had not come.  This Court in the case of Mst. Sajida Begum (supra) has held that family pension is payable to the family members of the deceased employee and that occasion will arise only after the death of the said employee.  Whether he retired before the issuing of the G.O. with regard to family pension or thereafter the classification of the family members of deceased employee in the matter of the payment of pension only on the ground of the cut off date of the issuance of the G.O. amounts to carving out a class from amongst the homogenous class of the family pension holders which is not permissible.

In the case of Dhan Raj and others (supra) the Hon'ble Supreme Court has held as under:-

"In fact, in the Constitution Bench decision of this court in D.S. Nakara and others v. Union of India, 1993(1) SCC 305: 1983 UPLBEC 378 (SC), this Court held that criterion of date of enforcement of the revised scheme entitling benefits of the revision to those retiring after specified date while depriving the benefits to those retiring prior to that date was violative of Article 14.  Even otherwise, while considering the question of grant of pensionary benefits the State has to act to reach the constitutional goal of setting up a socialist State as stated and the assurance as given in the Directive Principles of State Policy.  A pension is a part and parcel of that goal, which secures to a person serving with the State after retirement of his livelihood.  To deny such a right to such a person, without any sound reasoning or any justifiable differentia would be against the spirit of the Constitution."

In the case of State of West Bengal and others (supra), the pensionary benefit scheme introduced by the Government of West Bengal was made applicable w.e.f. 1st April, 1977 and the cut off date was upheld by the Apex Court.  The Hon'ble Supreme Court held that the writ petitioners who had retired prior of 1st April, 1977 and had drawn out the terminal benefits permissible to them, constituted a different class from those who retired after 1st April, 1977.  The Apex Court hass held as follows:-

As rightly pointed out in Krishena Kumar, Nakara was a case where an artificial date was specified classifying the retirees, governed by the same Rules and similarly situated, into two different classes, depriving one such class of the benefit of liberalized Pension Rules.  It was found in that case that the specification of the date (from which the liberalized Rules were to come into force) was arbitrary. Whereas in this case, the employees retiring prior to April 1, 1977 and those retiring thereafter were governed by different sets of rules.  The argument to the contrary may mean that the Government can never change the conditions of service relating to retiral benefits with effect from a particular date.  No such absolute proposition can be stated that while effecting any such change, no date from which such change will come into force can be specified.  As stated above, a date can be prescribed but such date should not be drawn in such a manner as to bring about discrimination between persons situated similarly i.e., in a manner violative of Article 14.  This aspect has been elaborately dealt with and explained in Krishena Kumar and we do not think it necessary to repeat the same."

In the case of Commander Head Quarter, Calcutta and others (supra), the Hon'ble Supreme Court has held that if a person had retired on 18th May, 1982 and on that date he was not eligible for pension under the existing rules merely because the Rules were revised from 1.1.1986 the claim of pension on the basis of revised Rules cannot be said to discriminatory and arbitrary.  The Hon'ble Supreme Court has held as follows:-

"4.   We are of the opinion that the ratio of D.S.Nakara has no application here.  D.S.Nakara prohibits discrimination  between pensioners forming a single class and governed by the same Rules.  It was held in that case that the date specified in the liberalized pension Rules as the cut-off date was chosen arbitrarily.  That is not the case here.  No pension was granted to the respondent because he was not eligible therefore as per the Rules in force on the date of his retirement.  The new and revised Rules in force on the date of his retirement.  The new and revised Rules[ it is not necessary for the purpose of this case to Government Order into the question whether the Rules that came into force with effect from January 1, 1986 were new Rules or merely revised or liberalised Rules] which came into force with effect from January 1, 1986 were not given retrospective effect.  The respondent cannot be made retrospectively eligible for pension by virtue of these Rules in such a case.  This is not a case where a discrimination is being made among pensioners who were similarly situated.  Accepting the respondent's contention would have very curious consequences; even a person who had retired long earlier would equally become eligible for pension on the basis of the 1986 Rules.  This cannot be."

In the present case I find that by the dated 16th June, 1984 the State Government has clarified that even in respect of those teachers who had died before 1st October, 1981, their family members would be entitled for the family pension.  Thus,  it has been clarified that the family pension is admissible from 1st October, 1981 to all the family members where the death or retirement of the pensioner has occurred prior to 1st October, 1981. It is not a case where the family members of a deceased pensioner are seeking the benefit of family pension which was introduced from a later date. The State Government itself had clarified it to be applicable to all pensioners who have retired/died prior to 1st October, 1981.  Thus, the decisions relied upon by Sri Singh are not applicable.  In this view of the matter, the stand taken by the respondents cannot be justified.  

So far as the question that the petitioner's husband had submitted the option on 16th March, 1981 and also deposited the amount of contribution of provident fund, is concerned it may be mentioned here that the State Government vide order dated 6th June, 1981 had extended the date for giving option upto 31st December, 1981 and, therefore, even if the petitioner's husband has given option in March, 1981 that would be treated as within time and have to be taken into consideration. So far as the deposit of the amount of contribution is concerned it may be mentioned here that the respondents did not take any steps to refund the amount which was deposited without any express permission of the authorities and even today the said amount is with the State Government.  The respondent cannot be permitted to take a stand that the amount has been deposited without any express authority and, therefore, it cannot be considered as compliance of the Government Order dated 8th March, 1978 and 6th June, 1981  inasmuch as it has kept the amount for a period of more than 22 years.  In view of the foregoing discussion the impugned order cannot be sustained and is hereby set aside.  The respondents no.3 and 4 are directed to provide the family pension payable to the petitioner from the date of the death of the petitioner's husband and to pay the entire amount within three months from the date a certified copy of this order is filed before him.  Any amount which has been paid in excess maybe adjusted.

The writ petition succeeds and is allowed.

16.1.2004

mt


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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