PREM LATA DEVI Vs. STATE OF U P

JUDGEMENT

(1.) HUSBAND of the petitioner, Sri Nanhe Mal Srivastava, was headmaster in a primary school, which was managed by Basic Shiksha Parishad after its formation in 1972, at Chandpur, District Farrukhabad. He retired on 30.06.1976 and received the pension till his death, i.e. 03.05.1984. Thereafter, petitioner applied for grant of family pension. The District Basic Shiksha Adhikari (B.S.A.), Farrukhabad on 08.02.1996 wrote a letter in this regard, copy of which is Annexure-1 to the writ petition. In the said letter, it was mentioned that family pension could be granted only uptil the age of 65 years and as petitioner had crossed that age, hence she could not be granted pension until contribution towards fund was deposited and a new option was given by her. Petitioner was directed to fulfil the formalities. On 06.04.1996, Director of Education (Basic) also issued a letter to the B.S.A., which is Annexure-2 to the writ petition. Regional Assistant Director of Education also wrote some letter in this regard on 08.04.1996. Thereafter, order dated 10.04.1996, copy of which is Annexure-3 to the writ petition was passed by District B.S.A., Farrukhabad. It was addressed the Finance and Accounts Officer in the office of B.S.A., Farrukhabad intimating that family pension of the petitioner had been sanctioned @ Rs.82.15/- per month till 31.12.1985 and @ Rs.238/- per month since 01.01.1986. It was also directed that petitioner's contribution should be adjusted from the arrears. Earlier also petitioner had filed W.P. No.9104 of 1997 asking for more pension, which was disposed of on 14.03.1997, copy of which judgment is Annexure-4 to the writ petition directing the respondent to give pension to the petitioner in accordance with law. Thereafter, through order dated 16.07.1997, District B.S.A. Farrukhabad stopped the pension of the petitioner. Copy of the said order is Annexure-5 to the writ petition. In the said order, it was mentioned that according to the directions issued by Finance Controller, Basic Shiksha Parishad, Allahabad, the benefit of pension under government order dated 08.03.1978 was admissible only to the widows/dependants of those employees, who retired on 01.03.1977 or afterwards. Petitioner's husband had retired prior to that, i.e. 30.06.1976. Against the said order also petitioner filed W.P. No.32294 of 1997, which was disposed of on 15.03.2005 with the direction to the B.S.A. to decide the representation. Special appeal against the said order was also dismissed. The petitioner therefore filed representation, which was rejected on 12.09.2005, true copy of which order is Annexure-10 to the writ petition and has been challenged through this writ petition. In the impugned order, reference has been made to government orders dated 08.03.1978 and 31.03.1982 and Rules 49 to 51 of the Rules governing service conditions of teacher of schools run and managed by Basic Shiksha Parishad. In the said order, it is mentioned that the husband of the petitioner was governed by Contributory Provident Fund (CPF) scheme. It has further been mentioned that under the said scheme widows/dependants of a teacher were entitled to family pension until retiree/pensioner would have attained the age of 65 years in case he had not died or would have received the pension for ten years in case he had not died whichever was earlier. In the case of the husband of the petitioner, the first contingency was applicable as he died at the age of 68 years, i.e. he had crossed the age of 65 years. It is further mentioned in the said order that in any case petitioner received family pension from 04.05.1984 to 31.03.1997, which was more than ten years. It has further been mentioned that benefit of family pension till death to widow/dependant of a teacher was granted through G.O. dated 08.03.1978, however for the application of the said G.O., it was essential that retirement should have taken on or after 01.07.1977, which was not the case with the husband of the petitioner. This question has been considered in detail in two authorities. One is reported in Musammat Sajida Begum Vs. Secretary, Basic Educaiton, U.P. Shasan and others, 2002 (93) FLR 153 and the other is passed in W.P. No.27338 of 2005, Nathho Begam Vs. State of U.P. and others, decided on 17.08.2005. In the later authority, the earlier authority was thoroughly discussed and examined. In the first authority of Sajida Begum, the view was taken, which is favourable to the petitioner, however dissenting view was taken in the later authority of Nathho Begam. In the case of Nathho Begam, the husband of the petitioner had retired in 1971. In that case also husband of the petitioner had been paid pension from 1971 to 1986 when he died. In the case of Nathho Begam government order of 17.12.1965 has also been considered and Rules known by the name of U.P. State Aided Educational Institutions Employees Contributory Provident Fund Insurance Pension Rules have also been considered in detail. The G.Os. dated 08.03.1978, 31.03.1982 and 16.06.1984 have also been considered. Rule 51 of U.P. Basic Shiksha Parishad Employees Service Rules, 1973 has also been considered. In the instant case as well as in the case of Nathho Begam, the position was that after G.O. dated 08.03.1978, the retiree had never opted for new pension policy. In the authority of Nathho Begam, it has been held that claim for grant of family pension was not tenable under the Rules of 1965. It has also been held that the claim is not tenable on the basis of G.O. dated 08.03.1978, 31.03.1982 and 16.06.1984. Honourable Judge held that even if the said government orders were applicable still family pension could be paid only if the employee after retirement had died before attaining the age of 65 years. The authority of Musammat Sajida Begum was also discussed in the authority of Nathho Begam and it was held that the said authority of Sajida Begum did not take into consideration the relevant Rules and government orders. In the judgment of Sajida Begum, it was held that the provision in the G.O. dated 08.03.1978 to the effect that the new scheme of pension would be applicable only to those employees, who retired on or after 01.07.1977 was discriminatory in view of Supreme Court authority reported in D.S. Nakara Vs. Union of India, AIR 1983 SC 130. However, the Honourable Judge while deciding Sajida Begum's case did not take into consideration that even if the case was covered by the aforesaid G.Os. still pension would be payable only uptil the age when the deceased retiree would have attained the age of 65 years. In the instant case, husband of the petitioner died at the age of 68 years, hence there was no question of application of those government orders for grant of new pension to the petitioner even if it is assumed that they are applicable. As far as the authority of D.S. Nakara is concerned, even though it has not specifically been overruled by the Supreme Court, however it has sufficiently been diluted by the subsequent authorities. In this regard, reference may be made to State of West Bengal Vs. West Bengal Government Pensioners Associations, AIR 2002 SC 538, where it has been held that providing the cut off date for pension purposes is valid and in the authority of D.S. Nakara, it was not directed that equal pension should be paid to all retirees irrespective of date of retirement. Accordingly, in my opinion, the authority of Sajida Begum is per incuriam and the judgment in Nathho Begam lays down correct law. In Annexure-1 to the supplementary rejoinder affidavit dated 05.11.2007, it is mentioned that an amount of Rs.11,000/- and odd had been deducted from petitioners account for granting benefit of new pension scheme. As far as that aspect is concerned, even though the petitioner was not entitled to family pension still it was paid to her. The family pension paid to the petitioner was much more than Rs.11,000/-. Accordingly, writ petition is dismissed. However it is clarified that whatever amount of pension has been paid to the petitioner shall not be recoverable from her.