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2008 DIGILAW 1195 (PAT)

Smt. Dhanbarta Kuer v. State Of Bihar

2008-08-20

MIHIR KUMAR JHA

body2008
Judgment 1. Heard the parties. 2. In this writ application the petitioner, widow of late Yudheshwar Tiwary has made a prayer for quashing the order dated 27.9.2000 passed by the Director, Department of Secondary Education, Government of Bihar, Patna, holding that the petitioner is not eligible for grant of family pension. 3. Counsel for the petitioner has submitted that the aforesaid decision of the Director, Secondary Education is palpably incorrect, inasmuch as, when husband of the petitioner was drawing pension, his widow, the petitioner after his death automatically becomes entitled for payment of family pension. In this context it has been submitted that admittedly the husband of the petitioner had retired as an Assistant Teacher in a recognized High School at Garh Nokha, in the district of Rohtas on 30.6.1980 upon completion of age of 62 years and he was paid provisional pension at the rate of Rs. 225.50 paise per month from the date of retirement upto 30.6.1982 which, however, was subsequently reduced to Rs. 75/- per month with effect from 1.7.1980 with also recovery of excess amount beyond Rs. 75/- per month. It is said that husband of the petitioner continued to get Rs. 75/- per month as his monthly pension till his death, i.e., 20.4.1992 and repeated representation of the petitioner for grant of pension of husband of the petitioner as also the fixed monthly family pension of the petitioner did not yield any fruitful result and accordingly she had moved this Court by filing a writ application being C.W.J.C. No. 11990 of 1999 which was disposed of by an order dated 29.2.2000 with a direction to the respondents to consider the grievance of the petitioner. Counsel for the petitioner has stated that when order of this Court was not complied the petitioner had filed a contempt application being M.J.C. No. 1836 of 2000 wherein the respondents came out with the impugned order dated 27.9.2000 claiming that the representation of the petitioner had been disposed of wherein it was held that the petitioner was not entitled for family pension. 4. Counsel for the petitioner therefore has submitted that denial of family pension to the petitioner was arbitrary and against the decision of the Government in the circulars dated 23.9.1989, 5.8.1981,4.6.1986 and 19.4.1990 which according to counsel for the petitioner had clearly provided for payment of family pension to the class of the persons like the petitioner. 4. Counsel for the petitioner therefore has submitted that denial of family pension to the petitioner was arbitrary and against the decision of the Government in the circulars dated 23.9.1989, 5.8.1981,4.6.1986 and 19.4.1990 which according to counsel for the petitioner had clearly provided for payment of family pension to the class of the persons like the petitioner. Counsel for the petitioner had also submitted that the concept of grant of family pension had been in fact already decided by the Apex Court in the case of Smt. Punamal & Ors. Vs. Union of India & Ors., reported in 1985 (3) S.C.C. 345 as also in the case of Smt. Bhagwanti Vs. Union of India & Ors. reported in A.I.R. 1989 S.C. 2088. He had in this context also placed reliance on a decision of the Division Bench of this Court in the case of Abdul Manan Vs. State of Bihar & Ors., reported in 1995 (1) P.L.J.R. 736. 5. On the other hand, counsel for the State as also counsel for the Accountant General on the strength of their counter affidavit had taken a clear stand that the petitioner was not entitled for payment of family pension, inasmuch as, husband of the petitioner was not a government servant and whatever pension was being paid to the husband of the petitioner was under special scheme meant for non-governmental employees popularly known as triple benefit scheme. Counsel for the respondents in this regard had also relied on a judgment of this Court in the case of Jai Prakash Dubey Vs. State of Bihar & Ors. reported in 1986 P.L.J.R. 100 which according to them completely covers the case of the petitioner. 6. Having given anxious consideration to the aforementioned submissions, this Court is of the view, that unfortunate it may be, but fact remains that the petitioner will not be entitled for payment of family pension. It is so because husband of the petitioner was not a Government servant and therefore each and every circular which was issued under the ambit of Bihar Pension Rules for payment of family pension for retired Government servant will not be applicable in her case. 7. It is so because husband of the petitioner was not a Government servant and therefore each and every circular which was issued under the ambit of Bihar Pension Rules for payment of family pension for retired Government servant will not be applicable in her case. 7. In this respect it has to be recapitulated that the schools in the State of Bihar and specially secondary schools including the school of husband of the petitioner were taken over only with effect from 2.10.1980 in view of the ordinance promulgated in the month of August, 1980 introducing the concept of take over and control of the recognized private secondary schools as taken over Government schools only with effect from 2.10.1980. Therefore, the cut off date, i.e., 2.10.1980 being relevant and the husband of the petitioner having already superannuated with effect from 30.6.1980 he could never acquire status of a Government servant. This being thus the admitted position that the husband of the petitioner was not a Government servant, he could have been entitled for such retiral benefit under his service condition envisaged at the time of his retirement. 8. The plea of the petitioner for such entitlement under triple benefit scheme which was introduced in the year 1964 by the Education Department notification No. 3431 dated 4th September, 1964 is also not tenable. In this regard on close examination of the "triple benefit scheme" it is found that such scheme had its limited scope and operation inasmuch as its preamble read as follows:- "The employees of Non-Government Elementary and Secondary Schools, run by local bodies of private management, are entitled at present simply to the benefits of Contributory Provident Fund. They are not entitled to any pension, nor they are required to insure their lives compulsory to provide the wherewithal to sustain them in their old age or their family in the event of their untimely death. The question of improving their service conditions in this respect had been engaging the attention of Government for some time past. After a very careful consideration, the State Government have decied to institute a Triple Benefit (Provident Fund-cum-lnsurance-cum-Pension) Scheme for the benefit of such employee with effect from 1st April, 1962." 9. The question of improving their service conditions in this respect had been engaging the attention of Government for some time past. After a very careful consideration, the State Government have decied to institute a Triple Benefit (Provident Fund-cum-lnsurance-cum-Pension) Scheme for the benefit of such employee with effect from 1st April, 1962." 9. From the aforementioned policy of the Government introducing a triple benefit scheme it would be absolutely clear that what was envisaged to be paid to every teacher of non governmental school is only by way of provident fund or insurance and/or pension. There was no concept of family pension under the aforementioned triple benefit scheme. 10. It has also to be kept in mind that the age of superannuation for the employees of Non-Government school was 62 years and therefore when in the year 1978 the State Government came out with its decision contained in Letter No. 4018 dated 29.11.1978 seeking to introduce the concept of payment of general provident fund pension including family pension and gratuity at par with the State Government employees even in the non Governmental school teachers, first thing which was provided in the aforementioned government decision was that the age of retirement of the said teachers would be 58 in place of 62 years. In Clause-IV of the aforementioned Government decision dated 28.11.1978 it was clarified that those employees who wanted to continue in service till the age of 62 years could do so by remaining in existing triple benefit scheme. A plain reading of the aforementioned Government decision dated 29.11.1978 would go to show that had the husband of the petitioner chosen to retire in terms of Government decision dated 29.11.1978, he could have availed benefit of the aforesaid Government decision dated 29.11.1978. As is admitted by the petitioner herself in paragraph 3 of the writ application that her husband actually continued in service up to the age of 62 years and therefore it can be safely inferred that he chose to continue in "triple benefit scheme". The moment this basic fact is admitted it becomes clear that the claim of the petitioner for family pension under the Government decision in the circular dated 29.11.1978 cannot be allowed as this triple benefit scheme was existing on the date of retirement of husband of the petitioner, i.e., 30.6.1980 when under there was no concept of family pension. 11. The moment this basic fact is admitted it becomes clear that the claim of the petitioner for family pension under the Government decision in the circular dated 29.11.1978 cannot be allowed as this triple benefit scheme was existing on the date of retirement of husband of the petitioner, i.e., 30.6.1980 when under there was no concept of family pension. 11. It is also not in doubt and in fact again has been admitted by the petitioner herself in the writ application that her husband had received Rs. 75/- per month as pension" under triple benefit scheme. If Clause-20 of the Triple Benefit Scheme fixing scale of gratuity or pension and the maximum limit thereof is perused, it would be found that the maximum limit of pension was Rs. 900/- per annum, i.e., Rs. 75/- per month. Therefore, it becomes absolutely clear that husband of the petitioner was drawing his pension under Triple Benefit Scheme even till the date of his death, i.e., 20.4.1992. Once this aspect becomes clear, the petitioner cannot be allowed to turn around and now claim for such benefit to which even her husband was not entitled either on the date of his death or on the date his superannuation. 12. Reliance placed by the petitioner on the resolution dated 2.3.1981 is also wholly misconceived because that would apply to a person who had been compulsory retired by the State Government with effect from 2.10.1980 on account of completing 58 years of age. Such was of course not the case of husband of the petitioner and as such the petitioner cannot get any benefit of the said circular dated 2.3.1981. As a matter of fact, this very aspect of the matter was also clarified by the State Government in its subsequent circular dated 5.8.1981 which only related to superannuation of such teachers/non- teaching employees of non-governmental school who had retired between 1.4.1978 to 31.12.1978. This circular in fact was issued to secure right of such employees who retired in between 1.4.1978 to 31.12.1978 as they had no chance to give option whether to continue in triple benefit scheme or under the invididual scheme brought into force with effect from 29.11.1978. This circular in fact was issued to secure right of such employees who retired in between 1.4.1978 to 31.12.1978 as they had no chance to give option whether to continue in triple benefit scheme or under the invididual scheme brought into force with effect from 29.11.1978. Obviously, as on 31.12.1978 the husband of the petitioner was continuing in service and he did not chose to elect the option of going into the scheme introduced by the Government by its circular dated 29.11.1978 which necessarily meant that he had to take retirement on or before 30.11.1978. The husband of the petitioner as indicated above continued with the benefit of triple benefit scheme and in fact availed full length of service of 62 years till 30.6.1980 and as such the reliance placed by counsel for the petitioner on the Government decision dated 5.8.1981 is wholly misconceived. 13. This Court in fact also does not find any force in the submission of counsel for the petitioner as with regard to applicability of the circular dated 4.6.1986 seeking to make revision and certain modification in the family pension scheme, inasmuch as, from bare reading of the same it is clear that the same is applicable only in the case of a Government servant. There is no dispute that the husband of the petitioner had never acquired status of Government servant. 14. In that view of the matter, any scheme that has been put into force for grant of family pension for the Government servant and/or their dependants in terms of Bihar Pension Rules will not be applicable in the case of the petitioner as her husband was never a Government servant. On the same analogy this Court would find that the judgment of the Apex Court in the case of Smt. Punamal (supra) and Smt. Bhagwati (supra) will have no application to the facts of the present case, inasmuch as, whatever has been laid down as proposition of law in the aforementioned judgment of the Apex Court are plainly applicable to the Government servant and grant of family pension upon death of such Government servant. Reliance placed by counsel for the petitioner on the case of Abdul Mannan (supra) will also not apply because the said case decided in the background of admitted fact with regard to eligibility of being granted family pension to the second wife and her children of a Government servant. Reliance placed by counsel for the petitioner on the case of Abdul Mannan (supra) will also not apply because the said case decided in the background of admitted fact with regard to eligibility of being granted family pension to the second wife and her children of a Government servant. The facts remains that even in the case of Abdul Mannan (supra) there were no two views that the claim of family pension was with regard to a Government servant and not a person like husband of the petitioner who was never a government servant. 15. In fact, the case in hand of the petitioner is squarely covered by the ratio of the judgment of this Court in the case of Jai Prakash Dubey (supra) wherein exactly similar situation, the issue for grant of pension and other retirement benefits including family pension at par with the Government servant was considered by a learned Single Judge in the light of triple benefit scheme and the Government decision contained in Notification No. 2530 dated 2.3.1981, which has also been relied heavily by the petitioner of this case for pressing her claim for payment of family pension, in that case the learned Single Judge having made a full review of the "triple benefit scheme" as also the subsequent decision of the Government dated 29.11.1978 and 2.3.1981 had gone to hold that a teacher who had been getting pension under triple benefit scheme would not be entitled for payment of pension and other retirement benefit at par with the Government servant in the following words:- "Having heard the learned counsel, I find considerable force in the argument of the learned Advocate General. The petitioner is bound by his option. He chose to serve till the age of 62 years and to take the triple benefit under Govt. Scheme of 1962. He cannot complain that he should be paid the same pensionary benefit like those who opted to retire at the age of 58 years, nor can he complain any discrimination with respect to that class of persons who did not opt to retire at the age of 58 years but were per force retired by statutory interference. Scheme of 1962. He cannot complain that he should be paid the same pensionary benefit like those who opted to retire at the age of 58 years, nor can he complain any discrimination with respect to that class of persons who did not opt to retire at the age of 58 years but were per force retired by statutory interference. In C.W.J.C. No. 2441 of 1980(R), it was held that as their option to retire at the age of 62 years was not allowed to run, they will be deemed as if they opted to retire at the age of 58 years. The said case is clearly distinguishable. So far as the complaint of the petitioner, that one Ramlakhan Singh was allowed liberal pension, it has been submitted that the Government is taking steps to rectify the mistake. I am, therefore, not persuaded by the first point urged by the learned counsel that the denial of liberal pension to the persons who retired between 1.1.79 to 1.10.80 is discriminatory in nature." 16. in the considered opinion of this Court, facts of the present case where husband of the petitioner admittedly retired on 30.6.1980 after remaining in service up to the age of 62 years would be fully governed by the ratio laid down in the case of Jai Prakash Dubey (supra). 17. Even otherwise, it is well settled that service condition of an employee including retirement benefit has to be governed by the rules which were in force on the date such cause of action had accrued to the concerned employee. As indicated above, when husband of the petitioner was in service he was governed by triple benefit scheme and he had availed benefits of triple benefit scheme not only by continuing in service up to the age of 62 years but also getting its pension up to his death in the year 1992. In such a situation his widow, the petitioner, cannot claim better right than what her husband was entitled to. 18. In such a situation his widow, the petitioner, cannot claim better right than what her husband was entitled to. 18. Grant of family pension in the case of the petitioner would therefore reopen a new chapter for the State Government which may be now flooded with similar claims of the retired teachers and/or their spouses and/or dependants for payment of such family pension which they were never entitled to on account of continuing in service up to the age of 62 years even without acquiring status of a Government servant. This Court also fails to understand the applicability of the ratio of the judgment of the Apex Court in the case of D.S. Nakara Vs. Union of India & Ors., reported in A.I.R. 1983 S.C. 130, inasmuch as, the class of Non-Government Teachers of having availed the benefit of continuance in service up to the age of 62 years cannot equate themselves with such Non-Government school teachers who had retired at the age of 58 years in order to get the benefit of retiral benefit at par with the Government servant in terms of the Government scheme dated 29.11.1978. Though it may sound to be harsh but the rule of law has to be followed even if it may cause individual hardships. 19. Thus, in the considered opinion of this Court there is no flaw in the decision of the Government denying family pension to the petitioner. Accordingly, this writ application being devoid of any merit is hereby dismissed. 20. In the facts and circumstances of this case, there will be no order as to cost.