Patna High Court
Lalita Devi And Anr. vs State Of Bihar And Ors. on 16 August, 1999
Equivalent citations: 1999(3)BLJR1968
ORDER Radha Mohan Prasad, J.
1. Since in both the writ petitions, grievance of the petitioner is the same and the question involved is also common, with consent of the parties they have been heard together and are being disposed of by this common order.
2. In both the writ petitions, petitioner claims to be the widow of the deceased Government servant who died in harness on 30th May, 1975 and 25th September, 1971 respectively. Short facts are that the deceased-husband of the respective-petitioners were appointed as Teacher in the year 1961. The deceased-husband of the petitioner Lalita Devi was appointed in Primary School, Bharhat under the Employment Improvement Programme, and the husband of the petitioner Shakuntala Devi was appointed in Amar Adarsh Middle School, Ramgajiya, Arrah Municipality. Arrah in the district of Bhojpur. Both the schools were taken over by the State government with effect from 1-1-1971 and the teachers of the said schools were treated as Government servant.
3. According to the stand of the Respondents in the counter-affidavit filed in the case of Lalita Devi, petitioners are only entitled to have the triple benefit (Provident Fund, Insurance and Pension) under the triple benefit scheme made applicable with effect from 1st. April, 1962. It is asserted in the counter-affidavit that the Scheme of family pension has been made applicable with effect from 1-4-1976, whereas the husband of the petitioners died much prior to the said date of promulgation of Scheme of family pension. As such, the petitioners are entitled for triple benefit scheme vide Education Department notification No. 3431 dated 4th September, 1964 and not family pension. It is submitted that a Division Bench of this Com; in the case of Sana Devi v. State of Bihar and Ors. reported in 1998 (1) P.L.J.R. 668 held that the dependants of the teachers, retired prior to 1-4-1976 are not entitled to family pension.
4. On the other hand, learned Counsel for the petitioner submitted that the principle laid down by the Division Bench in the case of Sona Devi v. State of Bihar and Ors. (supra) is of no help to the State as the Court did not go into the claim of family pension under 1964 Rules, on consideration of which this Court in a similar case of Smt. Sharda Devi v. State of Bihar and Ors. reported in 1996 (2) P.L.J.R. 470, held that the petitioner of the said case was entitled for family pension. Learned Counsel for the State submitted that the judgment of this Court in the case of Smt. Sharda Devi v. State of Bihar (supra) has been overruled by the aforesaid judgment of the Division Bench.
5. I am unable to accept the said submissions of the learned Counsel for the State. The decision in the case of Sona Devi v. State of Bihar and Ors. (supra) Division Bench has not overruled the judgment of Single Judge in the case of Smt. Sharda Devi v. State of Bihar, (supra). On the contrary in paragraph 8, the Division Bench after noticing the said judgment found that in the judgment of Sharda Devi reference to the eligibility conditions that 10 years of service was necessary to be eligible for payment of such pension was made. Accordingly, in the facts and circumstances of the said case, the Divisions Bench held that though the petitioner in the said case was not entitled to the benefit of family pension which had been made applicable with effect from 1st April, 1976, pursuant to the decision of the Government dated 7th June, 1976 (Annexure-A to the counter-affidavit), but if she makes a claim under 1964 Rules for payment of family pension, the same may be examined by the appropriate authority and a decision be taken. Their Lordships did not express any opinion on the claim for famlly pension under 1964 Rules.
6. In the case of Smt Sharda Devi v. State of Bihar (supra.), this Court noticed the facts that the family pension scheme for the State Government employees was introduced by the State Government vide Finance Department Memo No. Pen-103/64-9505 F, dated 3rd September, 1964 (wrongly typed as Memo No. Pen 103/64/95/9505 Fl dated 3rd September, 1954), and on consideration of the provisions contained therein directed for payment of family pension to her. The Division Bench in the case of Sona Devi v. State of Bihar (supra) only considered the question, as to whether for the propose of family pension, the Respondent-State can fix a cut-off date or not. The said question arose because of the plea of the Respondents that the petitioner was entitled to the benefit under triple benefit scheme which existed at the time when her husband died and she was not entitled for family pension. .It was further pleaded on behalf of the Respondents that the husband of the petitioner was entitled to triple benefit of Provident Fund, Gratuity and Pension under the rules as then existed on the date of the death of her husband the family pension was introduced by the State of Bihar for the first time on 7th June, 1976, which provided that those teachers, who retired or died prior to 31st March, 1976 shall be entitled for the benefit under the triple benefit scheme, but those who retired after 31st March, 1976 shall be governed by the Bihar Pension Rules. However, the relevant provisions dealing with family pension scheme introduced by the State Government including one contained in the aforementioned Finance Department Memo No. Pen-103/ 64-9505 F, dated 3rd September, 1964 were not placed and as such it appears that the Division bench declined to express any opinion on the claim of the family pension under 1964 Rules.
7. The State Government at the instance of the Government of India for some time was considering the measures to be adopted for providing special security to their employees. Under the existing orders (the Liberalised Pension Rules, 1950), an Officer had normally to complete service of not less than 20 years, in order to become eligible for the benefit of Family Pension, and also the duration of the Pension is limited to a maximum period of 10 years after the date of superannuation, whichever is earlier, which were not found to be adequate and as such the State Government reviewed the same and a fresh scheme had been drawn up, which would provide in future at varying rates a pension for life to the widow of the deceased Government servant. The State Government sanctioned the following new scheme for family pension for the State Government employees vide aforementioned Finance Department Memo No. 9505 F, dated 3rd September, 1964:
Pay of the Government Servants Monthly Pension of
Widow/Widower.
(a) Below Rs. 400. 30 per cent of pay subject to
a minimum of Rs. 60 and
maximum, of Rs. 100.
(b) Rs. 400 and above but 15 per cent of pay subject to
below Rs. 1,200. a minimum of Rs. 100 and
maximum of Rs. 160.
(c) Rs, 1,200 and above 12 per cent of pay subject
to a minimum of Rs. 160
and maximum of Rs. 250.
According to its paragraph 5 the term 'pay' is to include all categories of pay mentioned in Rule 26(a) of the Bihar Pension Rules and also C.L.A. Under its paragraph 6, the scheme came into force with effect from 1st April, - 54 and was made applicable to all regular employees on pensionable establishment temporary or permanent, who were in service on the 1st April, 1954, or are recruited thereafter. Sub-paragraph (i) of paragraph 7 of the said memo provides that the family pension would be admissible in case of death while in service, or, after retirement on or after the 1st April, 1964, if at the time of death, the retired Officer was in receipt of a compensation, invalid, retiring or superannuation pension. In case of death while in service, the Government Servant should have completed a minimum period of one year of service. Widow is included in the definition of family. Under paragraph 8, every employee eligible to the benefits of the above scheme was required to surrender a portion of gratuity, where admissible, equal to his two months emoluments subject to maximum of Rs. 5,000/-. Where an Officer governed by this Scheme retires, as a bachelor who had not adopted any child, no deduction from his gratuity was to be made. In cases where the gratuity admissible is less than two months' pay the same was to be resumed by Government against the family pension admissible in/the scheme. Government employees in service up to 31st March, 1964, who were governed by the Liberalised Pension Rules, wholly or partially were given an option to elect the said Scheme in substitution of the existing Family Pension benefits as admissible under the Liberalised Pension Rules or retain its existing benefit. Persons who failed to exercise option within the stipulated period were deemed to have elected the new Scheme of Family Pension, Under Paragraph 12, those who entered in service on or after the 1st April, 1964, would automatically be governed by the Scheme.
8. From the counter-affidavit, however, it appears that the employees of the Non-Government Elementary and Secondary Schools run by local bodies or private management were earlier entitled simply to the benefit, of contributory provident fund. The State Government after careful consideration decided to institute a triple benefit (Provident Fund, Insurance & Pension) Scheme for the benefit of such employee with effect from 1st April, 1962 vide Education Department notification No. 3431 dated 4th September, 1964 (Annexure-A to the counter-affidavit filed in C.W.J.C. No. 11049 of 1998). However, after takeover of the School, the State Government wide letter No. Q/T 806/77 Shi. 1069, dated 23-6-77 issued by the Special Officer-cum-Joint Secretary to the Accountant-General, Bihar, (through Finance Department, Bihar) laid down the guidelines in the matter of pension to the retired teachers of the nationalised School. According to the said guidelines, those teachers who retired before 1-4-76 have been made entitled for the pensionary benefits as per the Triple Benefit Scheme and those completing 58 years or above of their age on 31-3-76 were retired from 1-4-76 and they were made entitled for grant of pension and gratuity, like other Government Servants counting their service from 1-4-49. In the case of teachers retiring after 1-4-76, the Government decided to give them all Pensionary benefits like a retired Government servant entitled under the Bihar Pension Rules. This guideline was further clarified in letter No. Q/T 806/77 Shi 2348, dated 26-12-1977 issued by the Education Department Bihar to the Accountant-General, Bihar, in which it is mentioned that in absence of any Rule in exercise of the power under the provisions of the Bihar Non-Government Elementary School (Takeover & Control) 3rd Ordinance, 1976, the grant of pension and gratuity to the teachers/employees of the nationalised School cannot be stopped.
9. Learned Counsel for the State has failed to bring to the notice of this Court any Rule framed under the Bihar Non-Government Elementary School (Takeover and Control) Act, 1976 with respect to grant of benefit of family pension from the 1st day of financial year 1976-77, except the aforementioned instruction, contained in Education Department letter No. 1069 dated 23-6-1977, which provides that those teachers who retired before 1-4-1976 would be entitled for the pensionary benefit according to the provisions contained in Triple Benefit Scheme.
10. This Court fails to appreciate as to how the said instruction can be invoked to deprive the petitioners of family pension under the Family Pension Scheme introduced under the aforementioned Finance Department memo No. 9505 F, dated 3rd September, 1964 when it is not in dispute that since after the takeover of the Schools in question, the deceased-teachers became Government servant with effect from 1-1-1971, particularly till a Rule is framed under the provisions of the aforementioned Takeover Act. I am afraid that such a Rule if framed to the detriment of the beneficiary under the aforementioned Family Pension Scheme dated 3rd September, 1964 can survive. Moreover, this Court fails to appreciate the aforementioned attitude of the State Government in treating the widows of the teachers differently in the matter of grant of family pension. In the case of those retired before and after 1-4-1976, there appears to be no valid justification for treating them differently particularly when in the Takeover Act itself 1-1-1971 since when the Non-Government Elementary Schools have been taken over and the teachers because Government employees, has been fixed as the cut-off date.
11. The Supreme Court in the case of Paonamal and Ors. v. Union of India and Ors. , while analysing the legal position and the obligations of the State under Articles 38, 39 & 41 in Part IV dealing with Directive principles of the State Policy of the Constitution of India held that:
Pension is not merely a statutory right but it is 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. Pension is a right not a bounty or gratuitous payment. 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. Where the Government servant rendered service, to compensate which a family pension scheme is devised, the widow and the dependant-minors would equally be entitled to family pension as a matter of right.
12. In the instant case, from reading of the instruction, contained in letter No. 1069 dated 23-6-1977, it appears that the State Government without there being any statutory Rule contrary to 1964 Rules has attempted to exercise their discretion in fixing 1.4.1976 a cut-off date for the grant of pensionary benefits, which, in my opinion is in complete negation of the principles governing Articles 14 8s 16 read with Articles 38, 39 and 41 of the Constitution of India. Moreover, the said 1977 instruction only relates to the grant of pensionary benefits to the teachers of the Schools taken over by 1976 Act and not for grant of benefit of family pension. In any view of the matter, once after the takeover of the School with effect from 1-1-1971 by 1976 Act the teachers of such Schools became Government Servant with effect from 1-1 -1971, on which date 1964 scheme for grant of family pension in case of death of a Government Servant was in force, the family of such teachers, who died in harness after 1-1-1971, became entitled for grant of family pension and they cannot be denied of the said benefit under 1977 instructions. This Court considers it pertinent to note here that even according to the Supreme Court decision reported in 1994(1) P.L.J.R. 33 State of West Bengal and Ors. v. Ratan Bihari Dey and Ors. and , State of Rajasthan v. Sevaniuitra Karamchari Hitkari Sarruti, there must be reasonableness in fixing a cut-off date having regard to the facts and circumstances. In the present case even if the stand of the State is accepted that 1977 instruction is applicable for the grant of family pension, in my opinion, there is no nexus in fixing 1-4-1976 as the cut-off date, when the School under 1976 Act stood taken over with effect from 1-1-1971 and teachers of the said School became Government Servant from that date. Moreover, there cannot be any dispute that it is open to the State to change the condition of service unilaterally and that the pensionary benefits constitute condition of service, but the same cannot be to their detriment.
13. Thus, in my opinion, 1977 instruction cannot sustain the test of reasonableness and the principles governing Articles 14 & 16 read with Articles 38 39 & 41 of the Constitution of India, inasmuch as by fixing a cut-off date under 1977 instruction would amount to arbitrarily denying the benefit available to the family of the teachers under the existing scheme of 1964 and thereby acting to their detriment.
14. Admittedly, the husband of the petitioners of the two writ petitions died in harness much after 1-1-19971, which is the effective date of the takeover of the School by the Government by virtue of which the teachers and employees of the School became Government servant, and thus, in my opinion, they cannot be differentiated in the matter of grant of pensionary benefits by issuing executive instruction.
15. The writ petitions are, therefore, allowed and the Secretary-cum-Commissioner, Department of Primary, Secondary and Adult Education, Bihar, Patna is directed to take immediate steps for release of the family pension and other pensionary benefits of the petitioners within two weeks of the receipt/production of the copy of this order, having regard to the fact that the Respondents have kept withheld such payment of the petitioners of the two writ petitions for now over 23 long years. Petitioners will be entitled for interest at the rate of 10% per annum to be calculated from the due date till the payment is made and a cost of Rs. 5,000/-(Rupees five thousand only) to each of them, which shall also be calculated and paid along with the aforesaid dues.