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Uttarakhand High Court · body

2009 DIGILAW 471 (UTT)

RADHIKA DEVI v. STATE OF UTTARAKHAND

2009-09-08

V.K.BIST

body2009
JUDGMENT 1. Present writ petition has been filed by the petitioner for direction to the respondents to pay family pension to the petitioner with effect from 21.01.2006 alongwith 18% interest. 2. Brief facts of the case are that the husband of the petitioner namely Radha Ballabh Tewari was appointed as Assistant Teacher in Primary School Gangolihat, District Pithoragarh in the year 1950. On 30.06.1977 he retired from the post of Head Master of Primary School. After his retirement the was granted pension with effect from 01.07.1977 and he died on 12.01.2006. After the death of her husband, the petitioner approached respondent no. 3 and requested for grant of family pension to her. Application for grant of family pension was also submitted by her before respondent no. 4. When nothing was done, the petitioner served a legal notice on respondent no. 3 and respondent no. 4 through her Advocate for granting her family pension. In the said notice the respondents no. 3 and 4 were also informed that the case of the petitioner is identical as of Smt. Parvati Pandey to whom pension was granted. In reply to legal notice the petitioner was informed by the respondent no. 3 that case of Smt. Parvati Devi is different from the case of the petitioner. It was further informed that since the husband of the petitioner had not deposited the contribution towards Family Pension during his service period, family pension is not admissible to her. 3. According to the petitioner, New Family Pension Scheme was introduced by the Central Government sometime around the year 1964 and subsequently in the year 1965 and onwards the New Family Pension Scheme was introduced by various State Governments including the Government of Uttar Pradesh. This Scheme came into effect in the State of U.P. w.e.f. 24.08.1966 in the name of New Family Scheme 1985. It was provided in the Scheme that after the death of a Government Employee his family would be entitled for family pension and among the ‘family members’ the wife of the deceased Government Employee would have first preferential right to get family pension. However, in the New Family Pension, 1965 a provision was made to make contribution in the shape of two months’ emoluments out of death-cum-retirement gratuity or two months’ salary by the employee during the period of his service. Petitioner’s husband did not make any contribution as required under the Scheme. However, in the New Family Pension, 1965 a provision was made to make contribution in the shape of two months’ emoluments out of death-cum-retirement gratuity or two months’ salary by the employee during the period of his service. Petitioner’s husband did not make any contribution as required under the Scheme. In the year 1977 the Union of India liberalized the Family Pension Scheme and thereby removed the pre-condition of making any contribution like deposit of two months emoluments or salary by the employee during his service, for enabling his family for getting family pension after his death. Thereafter, the Government of Uttar Pradesh and other State Governments also liberalized their pension scheme by removing the pre-condition of contribution of two months’ emoluments/salary for providing family pension to the family of the deceased government servant. The petitioner has not enclosed copies of these Schemes in the writ petition. 4. The respondents no. 2, 3 & 4 have filed their counter affidavit in which they have stated that at the time of superannuation of late husband of the petitioner on 30.06.1977, there was no provision of family pension and after his death the amount of Life Insurance, GPF was paid to him. It is further mentioned in the counter affidavit that as per the then prevailing Government Order No. A-5355715-3133-1962 Lucknow dated 17.12.1965 the husband of the petitioner was given pension during his life time. In the said Government Order it was provided that after the death of the employee the Family Pension will be given only upto five years from the date of superannuation. Since the husband of the petitioner was alive during the said period, petitioner is not entitled for Family Pension. It is further mentioned in the counter affidavit that the husband of the petitioner had not opted the subjected New Retiremental Benefit Scheme which was introduced through the Government Order No. 519/15(3)-79/77 dated 8.3.1978, therefore, the petitioner is not entitled to get Family Pension. But the respondents have also not annexed these Government Orders namely G.O. No. A-5355715-3133-1962 Lucknow dated 17.12.1965 and G.O. No. 519/15(3)-79/77 dated 08.03.1978. But the respondents have also not annexed these Government Orders namely G.O. No. A-5355715-3133-1962 Lucknow dated 17.12.1965 and G.O. No. 519/15(3)-79/77 dated 08.03.1978. The respondents have further taken a plea in their counter affidavit that since the husband of the petitioner late Radha Ballabh Tewari was superannuated on 30.06.1977 and his pension was sanctioned on 07.07.1977 from the State of U.P. the liability of payment of Family Pension of the petitioner, if any, is on the State of U.P. as per Section 54 of the U.P. Reorganisation Act, 2000. 5. Learned counsel for the petitioner argued that in view of the fact that condition in Pension Scheme, 1965 for making payment of contribution in the shape of two months emoluments out of death cum retirement gratuity or two months’ salary during the period of his service was done away after 1977, the petitioner cannot be denied Family Pension on the share protest that her husband did not make any contribution towards Family Pension. Learned counsel for the petitioner further argued that action of the respondents for not making payment of Family Pension to the petitioner w.e.f. 12.01.2006 is not justified and is in violation of Article 21 of the Constitution of India. It is also argued by him that since the respondents’ department has granted pension to similarly situated lady Smt. Parvati Pandey, there is no justification to deprive the petitioner of her right of Family Pension. According to the learned counsel for the petitioner, the petitioner has wrongly and illegally been deprived of Family Pension by the respondents in utter violation of Article 21 of the Constitution of India and she is entitled for Family Pension w.e.f. 12.01.2006 alongwith 18% interest as well as also for special cost. 6. Learned Standing Counsel, on the other hand, submitted before the Court that the petitioner cannot be granted Family Pension as at the time of superannuation of late husband of the petitioner there was no provision for Family Pension and husband of the petitioner was granted pension under the then prevailing Government Order dated 17.12.1965. He further submitted that as it was provided in the Government Order dated 17.12.1965 that after the death of an employee Family Pension will be given only upto five years from the date of superannuation and since husband of the petitioner died after five years of his retirement, the petitioner cannot be granted Family Pension. He further submitted that as it was provided in the Government Order dated 17.12.1965 that after the death of an employee Family Pension will be given only upto five years from the date of superannuation and since husband of the petitioner died after five years of his retirement, the petitioner cannot be granted Family Pension. He further argued that claim of the petitioner for Family Pension can also not been accepted on another ground as her husband did not opt for New Retiremental Benefit Scheme introduced by G.O. dated 08.03.1978. 7. I have heard learned counsel for the parties. The argument of learned counsel for the petitioner that petitioner is entitled for Family Pension as condition in Pension Scheme, 1965 for making payment of contribution in the shape of two months emoluments out of death-cum-retirement gratuity or two months salary during the period of service was done away after 1977 has no force as petitioner cannot claim benefit of the subsequent Government Order issued after the retirement of petitioner’s husband. The respondents have referred only two Government Orders which provide benefit of Family Pension to the Family members of deceased employee. Government Order A-5355715-3133-1962 Lucknow dated 17.12.1965 provided hat after the death of the employee, the Family Pension will be given only up to 5 years from the date of superannuation. But in the present case since husband of the petitioner was alive during the said period, question of making payment of Family Pension for that period does not arise. Another Government Order No. 519/15(3)-79/77 dated 08.03.1978 introduced New Retiremental Benefit Scheme but unfortunately the husband of the petitioner had not opted for the same. Since the husband of the petitioner did not opt for the New Retiremental Benefit Scheme under the Government Order dated 08.03.1978, the petitioner is not entitled for Family Pension. Learned counsel for the petitioner though argued that the case of Parvati Pandey is identical and covers the petitioner’s case also but he could not demonstrate how the petitioner’s case is covered by the case of Smt. Parvati Pandey. The petitioner has not brought anything on record on which basis she can claim Family Pension. 8. In view of the aforesaid discussion, the writ petition fails and is dismissed. No order as to costs.