Hon'ble Arvind Kumar Tripathi (II),J.
1. Heard learned counsel.
2. This Special Appeal under the Rules of the Court has been filed against the impugned order dated 16th July, 2002 passed by learned Single Judge in Writ Petition No.396 (S/S) of 2002.
3. The factual matrix of the case is that the husband, of the petitioner/respondent, i.e Poorvideen was working as a Class IV employee in G.M., H.M.K.D Inter College, Mohan District-Unnao. He retied 31.1.1981 and later on, died on 25.5.1999. It is the admitted case that the husband of the petitioner/respondent was being paid pension after retirement. However, after death of husband of petitioner/respondent the pension was stopped, and application moved for family pension was rejected by the Deputy Director of Education (Madhyamik), VIth Region, Lucknow vide order dated 8.11.2001.
4. Learned Single Judge allowed the writ petition filed for payment of family pension on the ground that the cut off date mentioned in the Government Order dated 24.2.1989 was 1.1.1989 i.e. prior to 25.5.1999, the date on which husband of petitioner/respondent died. The ground taken by the Deputy Director of Education (Madhyamik), VIth Region, Lucknow is that under Government Order dated 24.2.1989 as modified, extending the benefit of pension to family members of deceased employee, cannot be given to be surviving spouse.
5. The petitioner/respondent challenged the Government Order dated 24.2.1989 which was entertained by this Court on the strength of an earlier judgment in the case of Smt. Shanti Devi Vs. State of U.P. & Others, reported in [2001]2 UPLBEC 1393. Thus, the learned Single Judge, allowed the writ petition and directed for the payment of family pension to the surviving spouse of the deceased employee. It is also borne out that in spite of repeated opportunity, no counter affidavit was filed by the opposite party before the learned Single Judge, hence the learned Single Judge proceeded to decide the writ petition finally keeping in view that the plight of the widow of the deceased employee who is running from pillar to post for payment of family pension after death of her husband and is entitled to avail the family pension.
6. Admittedly, family pension was admissible to the dependent of the deceased employee who retired prior to 31.1.1989. Learned Single Judge, noticed the earlier judgment of the Court and recorded a finding that since pension was admissible to the husband of petitioner/respondent, it cannot be denied at a later stage. A finding has further been recorded that the Government Order dated 24.2.1989 shall not be applicable to the Intermediate Colleges.
7. The finding recorded by the learned Single Judge does not appear to be incorrect. Once the husband of the petitioner/respondent is entitled to pension, and he was being paid pension till 1999 then any Government Order or decision taken by the State Government shall not come in the way in grant of family pension to the widow of the deceased employee. Their Lordship of the Supreme Court in a plethora of judgments have held that pension is not a bounty rest on the mercy of the Government, but it is a statutory right available in lieu of services rendered by the employee. It is also well settled that such a right constitutes "property" and any interference will be a breach of Article 31(A) of the Constitution and the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension.
8. In a recent case of State of Jharkhand and Ors. Vs. Jitendra Kumar Srivastava, reported in 2013 SC 3383 their Lordship of the Supreme Court considering earlier decisions of the Hon'ble Supreme Court on the point in issue has held:
"7.It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and un-blemished service. Conceptually it is so lucidly described in D.S. Nakara and Ors. v. Union of India MANU/SC/0237/1982 : (1983) 1 SCC 305 by Justice D.A. Desai, who spoke for the Bench, in his inimitable style, in the following words:
The approach of the Respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service?
What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.
The antiquated notion of pension being a bounty a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and,therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar and Ors. MANU/SC/0658/1971 : (1971) Supp. S.C.R. 634 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion. Itis only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab and Anr. v. Iqbal Singh MANU/SC/0459/1976 : (1976) II LLJ 377 SC.
32. The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India MANU/PH/0219/1962 : A.I.R. 1962 Pun 503. It was held that such a right constitutes "property" and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh MANU/PH/0130/1964 :I.L.R. 1965 Pun 1 approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is"property" within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority.
33. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. The State of Punjab MANU/PH/0129/1966 : I.L.R. 1967 P&H278. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that thepension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a Government servant It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision, on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant."
9. Reverting to the facts of the present case, it may be noticed that in case husband of petitioner/respondent was being paid pension till his death on 25.5.1999, in such circumstances the same benefit cannot be denied to the spouse. Any decision taken by the State Government preventing payment of family pension to the spouse of the deceased employee shall be a nullity in law. It may be noted that family pension is not paid to the dependent of the deceased i.e spouse on account of some new ground available in the Government Order or for any other reason, whatsoever. The pension is paid on account of services rendered by the husband during his service tenure and it continue till his death and thus it cannot be denied to the spouse after death of the husband for any reason whatsoever.
10. Even if the petitioner/respondent has not challenged any Government Order, benefit available to her husband shall be available in the form of family pension.
11. We are in respectful agreement with the impugned order dated 16.7.2002 passed by learned Single Judge of this Court.
12. Accordingly, we affirm the Judgment of learned Single Judge and direct the appellant's to restore and pay the family pension to the petitioner/respondent within three weeks from the date of presentation of a certified copy of this order. Arrears of family pension shall be paid to her expeditiously, say, within the next two months.
13. Before parting with the case, we may notice that the spouse of the deceased employee is aged about 75 years. Thus, we direct the Senior Registrar of this Court as well as the learned Standing Counsel to communicate this order to the District Inspector of School, Unnao as well as Smt. Ram Pyari widow of late Poorvideen resident of Village and Post-Mohan, Tehsil-Hassanganj, District-Unnao within two weeks.
14. Appeal decided accordingly.
15. No order as to costs.
Order Date :- 22.7.2014 Subodh/-