SMT. SURYAKANTI BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Petitioner is the widow of Late Bikhari Charan Behera, who died in harness, while working as a Primary School Teacher. The late husband of the Petitioner was born on 1.11.1942 and in due course, would have retired on 01.11.2000. As ill -luck would have it, the Petitioner's husband expired on 15.05.1975. At the time of his death, he was serving as an Assistant Teacher under the District Inspector of Schools, Jharsuguda at Patrapali Primary School. The Petitioner, being not sanctioned and disbursed with family pension, approached this Court in O.J.C. No. 13548 of 1999. This Court by order dated 20.12.1999, upon considering the case of the Petitioner, directed that the district Inspector of Schools, Sambalpur - II should consider the case of the Petitioner within a period of three months in the light of the ratio laid -down by this Court in the case of Bhimsen Prusty and Ors. v. State of Orissa and Ors. : 1994 (I) OLR 439. While directing thus, this Court observed that in the said decision it was held that the cut -off date, i.e., 01.09.1988 for payment of family pension as stipulated in the Orissa Educational Institutions (Non -Government Fully Aided Primary School Teachers) Retirement Benefit (Amendment) Rules, 1989 was arbitrary. Subsequently, the rules have been amended in 1998 was arbitrary. Subsequently, the rules have been amended in 1998 and in such view of the matter, the prayer of the Petitioner for payment of family pension and other admissible benefits are required to be considered in accordance with the principles decided in the said case as well as the subsequent amendment. Directions were accordingly issued to consider the case of the Petitioner within a period of three months from the date of communication of the said order.

(2.) AFTER receiving the order of this Court, the pension sanctioning authority, i.e., the District Inspector of Schools wrote a letter to the B.D.O., Kolabira to submit the service record of the husband of the Petitioner for preparation of pension payment order. Thereafter, all the documents along with the pension sanction order were sent by the District Inspector of Schools to the opposite party No. 4 Accountant General, Orissa. After getting the same, the opposite party No. 4 sat over the matter for about three months and thereafter intimated the D.I. of Schools that family pension is not admissible in the case of the Petitioner in view of the notification dated 18.10.2001 published vide S.R.O. Nos. 602/01 and 603/01 dated 18.10.2001 annexed as Annexure -6 to the writ petition. A copy of the said letter was also forwarded to the Petitioner.

(3.) NO return has been filed by the opposite parties. However, during the course of hearing, learned Counsel for the State submitted that the husband of the Petitioner having expired on 15.05.1975, it is required to be seen as to what benefit can be granted to the Petitioner. On the said relevant date, Primary School Teachers were governed under the Orissa Non -Government Primary Schools Teachers Contributory Provident Fund, Pension (Triple Benefit) Rules, 1966. Under the said Rules, there was no provision for grant of family pension. Subsequently, Orissa Aided Education Institution Employees Retirement Benefit Rules, 1981 (R.B. Rules, 1981. in short) came into operation with effect from 01.04.1982 repealing the triple benefit Rules, 1966. The said R.B. Rules, 1981 applied to those primary school teachers, who retired on or after 01.04.1982. the Petitioner's husband having died in 1975, the said R.B. Rules, 1981 had no application to the case of the Petitioner. In 1986 Anr. set of rules, namely, The Orissa Aided Educational Institutions (Non -Government Fully Aided Primary School Teachers) Retirement Benefit Rules, 1986 (for short "the R.B. Rules, 1986) came into force with effect from 01.04.1985 repealing the R.B. Rules, 1981. Even in the R.B. Rules, 1986, there was originally no provision for any benefit for the family of a Primary School Teacher dying in harness. It was only in 1989 by a Gazette Notification dated 05.12.1989, Rule -8(2):(b) of the R.B. Rules, 1981 was amended providing for family pension to the families of the employees of the aided educational institutions, the expression "Family Pension" was defined by introduction of Clause -(e) -1 in Section 2 of the R.B. Rules, 1981 stating that "family pension" means the family pension payable to the family of the employees under Rule 8. According to the State, the employees under Rule -8, as referred to above in R.B. Rules 1981, means the persons, who were in service or continued in service on or after 01.04.1982. Hence, this excludes persons, who have retired or died prior to 01.04.1982. It so, therefore, stated that the husband of the Petitioner having died in 1975, i.e., much prior to 01.04.1982, he was not an employee under the R.B. Rules, 1981 and, therefore, the provision of family pension as per Rule 8(2) (b) of the R.B. Rules, 1981 cannot be made applicable in case of the Petitioner. Pursuant to the aforesaid amendment in the R.B. Rules, 1981, families of some employees, who had retired prior to 01.09.1988, were denied family pension on the ground that the amended Rule 8(2) (b) only applied to those employees, who died on or after 01.09.1988. In case of Bhimsen Prusty and Ors. (supra), this Court held that the families of such teachers, who are retired prior to 01.09.1988, shall be entitled to family pension. In 1998 Anr. amendment was brought into R.B. Rules, 1981, which came into operation with effect from 01.09.1988. By the said amendment Sub -rule -2(b) of Rule 8 was amended to the effect that the family of an employee including the employee, who retired or died on or before commencement of those rules, shall be entitled to get family pension as admissible to the family of his/her counterpart in the State Government service. Learned Counsel for the State submitted that "on or before commencement of the Rules" actually refers to the commencement of the amendment Rules, 1998 and not the commencement of the original rules in the year 1981.