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2001 DIGILAW 1035 (PAT)

Mostt Sushila Devi v. State Of Bihar

2001-11-19

NAGENDRA RAI, R.S.GARG

body2001
Judgment 1. L.P.A. No. 1289/2001 arises out of C.W.J.C. No. 13029 of 2001, L.P.A. No. 1290/2001 arises out of C.W.J.C. No. 13046 of 2001 and L.P.A. No. 1300/2001 arises out of C.W.J.C. No. 13007 of 2001. 2. The points involved in all the three appeals are one and the same and as such they have been heard together and are being disposed of by this common order. 3. The question involved in all the three appeals is as to whether the appellants, who are widows of the Assistant Teachers of the Non-Government Elementary Schools taken over by the State Government under the provisions of the Bihar-Non-Government Elementary Schools (Taking Over of Control) Act, 1976 (hereinafter referred to as the 1976 Act) are entitled to the family pension after the death of. their husbands or not? 4. The factual matrix for disposal of the present appeals are that in L.P.A. No. 1289/2001, the husband of the appellant, namely, Ram Narain Sharma was employed as an Assistant Teacher in Primary School, Maleepur, Pusa, Samastipur and he died on 16.9.1971, the husband of the appellant of L.P.A. No. 1290/2001, namely, Sita Ram Thakur, was employed as an Assistant Teacher in Rajkiya Primary School, Kainjiya, Bishanupur, Pusa, Samastipur and he died on 14.1.1976 and the husband of the appellant of L.P.A. No. 1300/2001, namely, Ram Shobhit Roy was employed as an Assistant Teacher in Primary School, Khairee, Pusa, Samastipur and he died on 10.7.1974. The husbands of the appellants were Assistant Teachers in the Elementary Schools since when they were taken over by the State Government. 5. By resolution no. 763 dated 9.2.1973, the Government decided to take over the Non-Government Elementary Schools and other schools controlled by the minorities and the private managements with effect from 1.1.1971. It was decided that the teachers of the said schools shall be treated as employees of the State Government. Later on, the Government enacted the 1976 Act, by which the Non-Government Schools were taken over with effect from 1.1.1971. It was decided that the teachers of the said schools shall be treated as employees of the State Government. Later on, the Government enacted the 1976 Act, by which the Non-Government Schools were taken over with effect from 1.1.1971. With regard to the terms and conditions of the employees, provisions were made under section 4(2) of the Act, which runs as follows: "Every Officer, teacher or other employee holding any office or post in the school taken over by the State Government shall be deemed to have been transferred to and become an officer, teacher or employee of the State Government with such designation as the State Government may determine and shall hold office by the same tenure, at the same remuneration and on the terms and conditions of service as he would have held before the taking over the said school and shall continue to do so unless and until such tenure remuneration, terms and conditions of service are duly altered by the State Government." 6. According to the said provisions, after the taking over of the schools, the officers, teachers and other employees shall be deemed to have been transferred to and become the officers, teachers and employees of the State Government and hold office on the same terms and conditions as held by them before taking over unless and until such tenure remuneration, terms and conditions of service are duly altered by the State Government. It is an admitted position that prior to the taking over of the Non-Government Elementary Schools, the teachers were taking benefit of Triple Benefit Scheme (Provident fund, Insurance, Pension) vide Education Departments notification no. 3431, dated 4th September, 1964, which was made effective from 1.4.1964. There was no provision for family pension under the aforesaid Scheme. With regard to the employees, teachers etc. of the taken over schools, the State Government introduced the scheme of family pension for the first time on the 7th of June, 1976, vide notification no. 1802. It was provided therein that the teachers, who have retired or died on or prior to 31.3.1976 shall be entitled to the benefit under the Triple Benefit Scheme, but those, who have retired or died after 31.3.1976, shall be governed by the Bihar Pension Rules, which provides for benefit of Family Pension Scheme. 1802. It was provided therein that the teachers, who have retired or died on or prior to 31.3.1976 shall be entitled to the benefit under the Triple Benefit Scheme, but those, who have retired or died after 31.3.1976, shall be governed by the Bihar Pension Rules, which provides for benefit of Family Pension Scheme. It is to be mentioned also that so far as the employees of the State Government are concerned, there was already a provision for family pension under the Bihar Pension Rules. The aforesaid notification of 1976 was challenged before this court in C.W.J.C. No. 7061 of 1994 on the ground that the fixation of the cut off date for entitlement of family pension to the widow or other family members of only those employees, who died or retired after 1.4.1976 and denying the same to the widow or other family members of those employees, who died or retired on or before 31.3.1976 is arbitrary and violative of Articles 14 and 16 of the Constitution of India. The said case is reported in 1998 (1) P.L.J.R. 668 (Sona Devi V/s. State of Bihar). The Division Bench relying upon two judgments of the Supreme Court in State of West Bengal and others V/s. Ratan Bihari Dey and ors., reported in 1994 (1) P.L.J.R. 33 and in State of Rajasthan V/s. Sevanivitra Karamohari Hikari Samiti, reported in (1995) 2 S.C.C. 117 , held that the aforesaid notification did not suffer from any infirmity. The employees retiring or dying prior to 1.4.1976 and those retiring or dying after 1.4.1976 were governed by different set of Rules. Both cannot be equated. 7. The husband of the writ petitioner in that case died before the benefit of the family pension was made available to the employees. 1t was also argued in that case on behalf of the writ petitioner that she was entitled to the benefit of the pension under 1964 Rules. Both cannot be equated. 7. The husband of the writ petitioner in that case died before the benefit of the family pension was made available to the employees. 1t was also argued in that case on behalf of the writ petitioner that she was entitled to the benefit of the pension under 1964 Rules. The Division Bench after having held that the writ petitioner of that case was not entitled to the benefit of family pension, which was made applicable with effect from 1.4.1976 by virtue of the Government notification dated 7.6.1976, did not finally decide as to the applicability of the 1964 Rules and observed that if an application was filed by the writ petitioner of that case for payment of family pension under the 1964 Rules, the authority might consider and take a decision according to law. 8. The said question was again considered by a Division Bench of this court in the case of State of Bihar V/s. Arya Devi, reported in 2001 (2) P.L.J.R. 212 , and this court agreed with the earlier Division Bench judgment in Sona Devis case (supra) with regard to the validity of the notification of 1976 and further held that the teachers of non-Government Elementary Schools taken over under the 1976 Act were not entitled to the benefit of Family Pension under the liberalised scheme as contained in the 1964 Rules, which is applicable only to the employees of the State Government. 9. In all these appeals, admittedly, the husbands of the appellants died prior to 1.4.1976 and as such they were not entitled to the benefit under the aforesaid notification regarding grant of Family Pension. The 1964 Rule, as has been held by the Division Bench, is also not applicable in their cases. 10. Learned counsel for the appellants in all the three cases, however, submitted that this court should refer the matter to a larger Bench as the views taken by the earlier two Division Benches of this Court are not correct. The 1964 Rule, as has been held by the Division Bench, is also not applicable in their cases. 10. Learned counsel for the appellants in all the three cases, however, submitted that this court should refer the matter to a larger Bench as the views taken by the earlier two Division Benches of this Court are not correct. Once the schools were taken over with effect from 1.1.1971, the husbands of the appellants became the employees of the State Government and their cases have to be governed by the Bihar Pension Rules, which were applicable at that time to the Government servants and as there was provision of family pension under 1964 Rule, which was applicable at that time, the appellants are entitled to the family pension. 11. We do not agree with the submission advanced on behalf of the appellants. On the other hand, we fully agree with the views taken by the earlier two Division Benches of this Court. The husbands of the appellants were employees of the Non-Government Elementary Schools, which were taken over by the 1976 Act on certain terms and conditions Section 4(2) of the said Act itself provided that they would continue on the same terms and conditions as it were available to them prior to the taking over of the schools unless and until the terms and conditions are redetermined by the State Government, The teachers of the taken over school were a class by themselves and in their cases the State Government in 1976 decided to provide pensionary benefit to the employees, who died or retired after 1.4.1976. This decision cannot be termed as arbitrary for the simple reason that the 1976 Act, by which the school was taken over, was enacted in 1976. The State Government decided to confer benefits on such a date. The law is well-settled that the State Government can change conditions of service unilaterally. Terminal benefits as well as Pensionary benefits constitute conditions of service and as such the State Government has power to fix a date with regard to applicability of the benefits. The same can be challenged only if it is arbitrary. Such is not the case here. The law is well-settled that the State Government can change conditions of service unilaterally. Terminal benefits as well as Pensionary benefits constitute conditions of service and as such the State Government has power to fix a date with regard to applicability of the benefits. The same can be challenged only if it is arbitrary. Such is not the case here. It is clear that the employees, who had retired or died prior to 1.4.1976, were governed by the separate set of Rules i.e. Triple Benefit Scheme and a new Rule providing family pension was introduced after that date. If. the submission of the appellants is accepted then the Government can never change the terms and conditions with regard to the pensionary benefits. 12. For the reasons aforementioned we do not find any merit in these appeals and, accordingly, they are dismissed.