Jharkhand High Court
Magdali Purty vs State Of Jharkhand And Ors. on 24 September, 2003
Equivalent citations: [2003(4)JCR711(JHR)]
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. Heard Mr. Jai Prakash Sahu, learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and with their consent this writ application is disposed of at the admission stage.
2. The only question that falls for consideration is as to whether the petitioner is entitled to family pension after the death of her, husband who retired as an Assistant Teacher in 1982.
3. The petitioner's husband was an Assistant Teacher in Middle School, Tamar, Ranchi and was superannuated w.e.f. 28,9.1982. The petitioner's case is that the provisional pension of her deceased husband was sanctioned but it was never finalized in his life time and he ultimately died on 22.12.2002. It is stated by the petitioner that her husband has not even received the provisional pension. The petitioner was told that she will not be entitled to family pension. Mr. Jai Prakash learned counsel appearing for the petitioner drawn my attention to Annexure-1 to the writ application and submitted that the provisional pension was sanctioned immediately after the retirement of the petitioner's husband which is evident from the said pension payment order (Annexure-1). According to the learned counsel the petitioner is therefore entitled to family pension.
4. Mr. S. Srivastava learned counsel appearing for the Accountant General on the other hand submitted that in view of the circular dated 29.11.1978 the petitioner's husband since retired after attaining the age of 62 years was entitled to triple benefit scheme. Learned counsel in this connection relied upon the Division Bench judgment of the Patna High Court dated 5.3.2001 in the case of State of Bihar v. Arya Devi, (LPA No. 439 of 2000).
5. In the case of State of Bihar v. Arya Devi, (supra) the question that falls for consideration was whether in case of teachers of elementary schools taken over by the State Government under the Bihar Non-Government Elementary Schools (Taking over of Control), Act 1976 who ceased to be in service of such schools on account of death or retirement prior to 31.3.1976, the widow or other family member will be entitle to family pension. The Division Bench after considering various decisions of the Court observed.
"Having considered all the relevant facts the earlier judgments and the provisions of the Act and after taking into account the submissions of rival parties, this Court finds sufficient force in the submissions advanced on behalf of the appellants in these appeals and is, therefore, left with no option but to differ with the views expressed by the learned single Judge in the cases of Sharda Devi v. State of Bihar, (supra) and Lalita Devi v. State of Bihar, (supra) and hold that those judgments do not lay down the correct law. There is no material on record or any law to hold that the teachers of Non- Government elementary schools were entitled to the benefits of Family Pension under the liberlised scheme of 1964 as contained in Bihar Pension Rules which is applicable only to employees of State Government. After take over of the schools under the provisions of the Act such teachers by virtue of Section 4(2) of the Act continued to be governed by their earlier service conditions and, therefore, could not have claimed to have become employees of State Government in respect of other service conditions until their conditions of service were allotted by the State Government. In view of instruction of 1976 providing for application of Bihar pension Rules only to those teachers who retired on or after 1.4.1976 and also providing that those teachers who retired or died earlier shall be entitled to the benefits of Triple Benefit Scheme. No doubt, the judgment of the Division Bench in the case of Sona Devi v. State of Bihar, (supra) in the facts of that case did not consider the 1964 notification relation to Family Pension and thus left the matter open but its findings on the question of arbitrariness or otherwise of instruction dated 7th June 1976 and validity of the cut off date were binding on the learned single Judge. We also find on material to take a different view on the aforesaid aspect of the matter than what has been taken by the Division Bench in the case of Sona Devi v. State of Bihar, (supra).
In the case of Lalita Devi v. State of Bihar, (supra) it was erroneously presumed that besides the triple benefit, pensionary benefits including Family Pension benefit as provided in the Bihar Pension Rules were available to the teachers of elementary schools taken over by the State of Bihar under the provisions of the Act. This led to further error in holding that by fixing 1.4.1976 as the cut off date for application of pensionary benefits, the State had changed the conditions of service to the detriment of teachers of concerned schools. On the basis of aforesaid discussions it has to be held that such teachers and employees of elementary schools taken over under the Act who retired or died prior to 31st March 1976 shall be entitled only to the benefit under the Triple Benefit Scheme and only those who retired after 31st March 1976 shall be governed by the Bihar Pension Rules including provisions for Family Pension."
6. In the instant case as noticed above petitioner's husband was appointed as an Assistant Teacher in the Middle School, Tamar in the District of Ranchi and after long service superannuated on 28.9.1982 and after his death the provisional pension was sanctioned but the final pension was not finalized. The ratio decided by the Division Bench in the above referred decision, in my, opinion, will not apply in the facts and circumstances of the present case. The petitioner after serving for about 36 years in the middle school retired in 1982 and after his retirement the provisional pension was sanctioned. After the death of petitioner's husband the petitioner is, therefore, entitled to family pension. I am also of the opinion that triple benefit scheme cannot be made applicable in the case of the petitioner.
7. For the aforesaid reason this writ application is allowed. The respondents are directed to release the entire arrears of pension payable to the petitioner's husband before his death and also pay the family pension to the petitioners in accordance with law.