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Smt. Noor Sabha v. Addl. Director Of Education & Others - WRIT - A No. 17812 of 1997 [2005] RD-AH 642 (4 March 2005)


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).


Judgement reserved on 25.11.04

Judgement delivered on 4.3.2005

Civil Misc. Writ Petition No. 17812 of 1997

Smt. Noor Sabha


Additional Director of Education(Basic) and others

Hon'ble Sunil Ambwani, J.

Heard learned counsel for the petitioner and learned standing counsel.

By this writ petition,  the writ petitioner has prayed for a direction to the respondents to consider the legal and factual aspects of the matter regarding payment of family pension to the petitioner by a speaking order, and to pay full insurance amount to the petitioner due to the death of her husband. By an amendment vide Courts order dated 3.4.2003 the writ petitioner has further prayed for release of gratuity which was payable to her husband with interest, and to pay her pension, group insurance and other retiral benefits due to her deceased husband with interest at the rate of 24%.

Brief facts as set out in the pleadings are that the petitioner's husband late Sri Masood Umar Khan was the Head Master in Public Junior High School, Rampur. He died while in service. She claims to be entitled of the amount of insurance as well as family pension. The petitioner was paid only Rs. 25,000/- towards insurance and was given family pension after about one year and six months. The first payment was made to her in January 1996 at the rate of Rs. 425/- per month. By Government Order dated 27.6.1990 the maximum family pension payable to any widow or dependants of government servant was fixed at Rs. 375/- per month and consequently petitioner's pension was also revised and reduced to Rs. 375/- per month. It is stated in para-10 of the writ petition that it was further reduced to Rs. 338/- per month  with effect from July, 1995. Under legal advice given to her by a counsel at district court Rampur, the petitioner filed a complaint in District Consumer Forum being petition No. 193 of 1996. In para 18 of the writ petition,  it is stated that consumer forum is not a right forum, therefore, the petitioner is


withdrawing her petition

On 26.5.1997 this Court at prima facie found that reduction in pension was not justified and  awaiting the counter affidavit, the petitioner was made entitled to be paid Rs. 425/- per month as family pension w.e.f. May, 1997. The question of payment of arrears and refund of any excess amount was required to be considered after the counter affidavit is filed. An amendment application was allowed on 3.4.2003, by which the petitioner claimed full pension for the remaining period of the service of her deceased husband. It is contended that at the time of his death petitioner's husband was drawing Rs. 1090/- as basic pay and hence he was entitled to full pension on the basic salary which will come to Rs. 545/- per month and other allowances which he was entitled upto age of 65 years. The petitioner also impleaded State of U.P. and Sri Nusurat Ali Khan, Account Officer in the office of District Basic Education Officer, Rampur. In this application the petitioner submitted for release the pension in the revised scale w.e.f. 199, according to which the petitioner was entitled to Rs. 1324/- plus dearness allowance,  totalling to Rs. 1748/- per month. It was alleged that the Account Officer made an illegal demand for 30% of the arrears of the revised pension. A complaint made by the petitioner to the District Magistrate was referred to Vigilance Department in which the Accounts Officer Sri Anwar Ahmad was trapped  arrested and suspended and an F.I.R. was lodged against him on 19.8.2000. The petitioner has, however,  not received the benefit of revised pension so far. The entire department has turned hostile against the petitioner. It is stated in para 13 of this application that her husband died in the year 1980 and that she was given minimum pension of Rs. 425 after about 14 years from the death of her husband and that the arrears and other retiral benefits have not been paid to her. Her son applied for compassionate appointment as they had suffered great hardships. The petitioner suffered a heart attack and  admitted to ICCU, and has undergone by-pass surgery  incurring heavy expenses.

The petitioner has also prayed for the ex-gratia payment on the death of her husband, who according to her died  in harness, group


insurance, G.P.F., leave  encashment, arrears of revised pay and the pension beginning from 5.4.1980. Apart from arrears of pension from 5.4.1980 to April, 2001 the petitioner also claimed the compensation for loss of wages on account of negligence in giving compassionate appointment  and many other amounts and has annexed the bills of medical treatment.

During the course of proceeding the petitioner has changed many counsels. This petition was filed by Sri Subodh Kumar. The amendment application was filed by Sri B.D. Mandhyan, thereafter Sri J.J. Munir, Sri K.P. Tiwari, Sri R.R.Khan, Sri A.K. Sachan and  many others  appeared in this case from time to time and each  counsel has increased  the value of the claims to be settled by the  the State Government.

A counter affidavit of Sri M.P. Singh  was filed on 23.4.2003, on behalf of Director of Education (Basic) U.P. Lucknow,  stating that the petitioner's husband late Masood Umar Khan was Head Master in Public Junior High School, Rampur. He died on 5.4.1980. The independent Estate  of Rampur  merged with Indian Government on 1.12.1949. Prior to the merger of the employees working in the Estate were employees of the Estate of Rampur. The educational institution was however not treated as State institution. The employees appointed prior to the merger were treated as State employees for the remaining period till the date of their  retirement. In the present case the institution was taken over and run by Zila Parishad/Nagar Palika and thereafter  these employees were taken over as employees of Basic Shiksha Parishad. The petitioner's husband was not appointed prior to merger of the Rampur Estate. He was appointed on 1.4.1959 and at the time of his death he was employee of Basic Shiksha Parishad. On his death ,her son Sri Tahir Umar Khan was given compassionate appointment as untrained Assistant Teacher in a Primary School where he is still working. In para-9 of this affidavit, it is denied that the facility of leave encashment, commutation and gratuity has been given to employees of Basic Shiksha Parishad. The family pension is payable and the same was paid to the petitioner at the rate of Rs. 200/- per month between 1.1.1986 to 31.3.1990. It was wrongly


revised  by the then Basic Shiksha Adhikari and Accounts Officer to Rs. 425/- per month. When this mistake was detected, it was reduced to Rs. 375/- per month and the recovery was also started. At this stage the petitioner had filed this writ petition in which an interim order was issued directing petitioners to pay Rs. 425/- per month w.e.f. May, 1997 and in compliance thereof the petitioner is being paid pension at the rate of Rs. 425/- per month.

A supplementary counter affidavit by Sri P.P. Dinkar, Director, Basic Education, U.P. Lucknow has been filed on 27.1.2004, giving better particulars about the service of petitioner's husband and her entitlement to family pension. It is stated in this counter affidavit that petitioner's husband was appointed as Assistant Teacher in Public Junior High School, Rampur on 26.10.1958. He was made Head Master on 1.7.1959. The school w.e.f. 1.4.1959 was under the direct control of Nagar Panchayat of Rampur and was transferred to Basic Shiksha Parishad in 1974. the petitioner's husband died in the year 1980 leaving behind petitioner as widow and five children. She was entitled to family pension as per Government Order dated 24.2.1989 and accordingly she was paid family pension at Rs. 200/- per month up to 30.9.1988 and from 1.10.1988 it was fixed at Rs. 100/- per month. This Government Order dated 24.2.1989 entitled petitioner for Rs. 100/- as family pension as her husband was entitled to only Rs. 200/- as pension, had he been alive. The family pension was made available to the employees of educational institution under the Basic Shiksha Parishad for the first time w.e.f. 1.10.1981 and large number of person getting salary between Rs. 400/- to 1200/- was entitled to family pension at 15% of the salary and with a minimum of Rs. 100/- per month. This was revised to minimum of Rs. 200/- per month w.e.f. 1.7.1979.

In para-9 of this counter affidavit it is held that petitioner's husband was not  a Government employee. The petitioner is not entitled to other reliefs. In para14, it is stated that she was paid G.PF amounting to Rs. 4448.27 and insurance amount of Rs. 12381.15 on 19.4.1982. One of the members of the family i.e. her son Tahir Umar Khan was given  compassionate appointment and is working as Assistant Teacher on


6.2.1993. Her family pension was revised to Rs. 1324/- on the enforcement of the recommendation of Vth Pay Commission. It is denied that she is entitled to any leave encashment and gratuity which is only payable to State Government employee or any amount as Ex-gratia   payment  and by way of compensation.

The petitioner has filed a  3rd supplementary affidavit  though Sri R.N. Sharma, Advocate. She has given details of the ailments with which she is suffering, with  a prayer to pay the entire amount  of medical treatment  and for which a large number of documents have been annexed.

In the rejoinder affidavit filed by Sri R.N. Sharma after giving details of the  ailments  and the cost of medical treatment, the petitioner has quantified the family pension payable to her from 1.1.1996 at Rs. 8360/- plus dearness allowance at the rate of 52% and has also prayed for payment of Rs. 5,07, 500.00 towards her treatment. By another application filed on 12.8.2004 along with supplementary rejoinder affidavit filed by her in person, he has prayed for grant of family pension and to release all death-cum-retiral benefits. In this rejoinder affidavit she has stated in para-3 that her husband was appointed as a Government servant on government post in lecturer's grade on probation. The District Inspector of Schools, Rampur appointed him on a government post as head master on 17.6.1959. The appointment was confirmed on 6.6.1961. Her husband was awarded meritorious service medal by President of India  1975. Thereafter she has given details of the medical treatment and her entitlement to retiral dues.

A short matter of entitlement of family pension has been vigorously pursued by the petitioner and in which the record of the case has kept swelling with her ever rising claims.

Learned counsel for the petitioners submits that petitioner's husband was a government servant. he was entitled to all benefits to service as Government servant including insurance, gratuity, provident fund, leave encashment, arrears of pension, which were payable to him, and the entire arrears of family pension. It is, however, interesting to find that the petitioner has not annexed a single document with regard to her


husband's appointment and service. There is absolutely nothing on record to demonstrate that he was appointed and received salary from the State Government. The letter from  the President's  Secretariat in Urdu language and the certificate of meritorious service does not demonstrate that the petitioner  was a government servant.

A perusal of the documents filed by the petitioner and those which are annexed with the counter affidavit of Sri M.P. Singh, Basic Shiksha Adhikari, Rampur and Sri J.P. Dinkar, Director, Basic Education, U.P. Lucknow demonstrate on record that petitioner's husband was appointed as Assistant Teacher in Public Junior High School, Rampur on 26.10.1958 and was made headmaster on 1.7.1959, which  at that time was under  control of Nagar Palika, Rampur and was transferred to the Basic Shiksha Parishad in the year 1974. The dependents of the teachers of Basic Shiksha Parishad received benefits of family pension w.e.f. 1.10.1981. The minimum rate of pension fixed by the Government Order dated 19.12.1981 and 31.3.1982, 15.6.1982 were subsequently enhanced we.f. 1.7.1989 and the this pension has been revised from time to time. The petitioner received the benefits of G.P.F.  and insurance in the year 1982 and her son Tahir Umar Khan was given  compassionate appointment. It is apparent that petitioner was wrongly given benefit of enhanced pension of Rs. 425/- per month  payable only to dependants of Government Servants, which was later on corrected by the respondents 27.1.1997 and by which she was allowed to draw the family pension at the minimum of Rs. 238/- per month  payable to the dependent of the teachers and employees of Basic Shiksha Parishad. The minimum pension given to the petitioner was revised to that of the minimum pension payable to dependants of the employees of the Parishad. I do not find that this reduction was made by way of any mistake, or that the petitioner was entitled to anything more. She has not been able to substantiate other claims. I also find that she is not entitled to any of  the claims with regard to her medical treatment raised by her  as these  claims have not been included in the prayers made in the writ petition.

The writ petition is consequently dismissed.

Dt. 4.3.2005  RKP/


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