Hon'ble Ritu Raj Awasthi,J.
Heard learned counsel for the appellants Sri R.D.Shahi and Sri Santosh Mishra for the respondents.
The appellants-State of U.P., challenge the order dated 8.10.2009, passed by the learned Single Judge, allowing the benefit of family pension to the respondent no. 1, under the terms of the Government Order dated 31.3.1982, read with the G.O. dated 16.6.1984.
The relevant facts which have given rise for passing the aforesaid order are that the husband of the respondent no. 1, Shiv Bahadur Pandey, on putting the service of about 12 years or so, died on 17.7.1977. He was appointed as Assistant Teacher in Subhash Pasupati Nath Vidyapeeth Inter College, Tiloi, Raibareily (hereinafter referred to as 'College'), sometime in 1968. Since he died only after putting the service of about 12 years, there was no occasion for him to give any option for award of pension under the 'Triple Benefit Scheme', which was introduced in the year 1965, nor under the new scheme dated 1.3.77, under which he could have given his option, sometimes in the year 1978.
The Scheme under the Government Order dated 17.12.1965, provided in Clause 24 that the family pension would be payable to the families of those employees for a period of 10 years, who at the time of the death had put in at least 20 years' qualifying service, whether they died during the tenure of service or after retirement.
Thus, the condition precedent for award of family pension was that the employee must have put in at least 20 years' qualifying service, meaning thereby that if an employee has put in less than 20 years' qualifying service then the family pension would not be payable, irrespective of the fact whether he died during his service tenure or after retirement.
It appears that demands were raised for allowing family pension to the families of the deceased teachers, and on consideration of such demands, the Education Department, U.P., had issued a Government Order dated 31.3.1982, accepting the aforesaid demand for award of family pension. In the aforesaid Government Order, it was specifically provided that all the conditions in the previous Government Orders, which denied the benefit of family pension have been done away with, namely; the conditions which restricted the benefit of family pension have been removed and the family pension is being made available to all the teachers of the Primary and Junior High Schools etc. in the same manner as is being paid to the families of the Government employees in accordance with the Government Order dated 1.10.1981.
This Government Order of 31.3.1982, which extended the benefit of family pension to all the teachers, did also provide the eligibility criteria for claiming and award of family pension.
Paragraph 4 (ka) of the aforesaid Government Order dated 31.3.1982, provides that if a teacher dies during his service tenure after having put in a minimum 7 years' continuous service, then his family would be entitled to family pension for a period of first 7 years from the date of his death or till such date, when he would have attained the age of 65 years, whichever is earlier. The amount of family pension in such cases would be half of the basic pay of the deceased teacher or the amount which is double under the present scheme, whichever is less.
In paragraph 4 (kha), a provision was made with respect to the award of pension, both in the cases where the teacher dies during the course of service and also when he dies after availing the benefit of pension.
It appears that a question arose, whether the benefit of the aforesaid Government Order dated 31.3.1982, would be available to those families also whose earning members, namely; the teachers had died prior to the issuance of the Government Order dated 1.10.1981, as by virtue of the Government Order dated 31.3.1982, the benefit of the Government Order dated 1.10.1981, was extended to the teachers also.
The State Government on 16.6.1984, clarifying the aforesaid position had issued another Government Order dated 16.6.1984, saying that if the families of the deceased teachers are, otherwise, entitled to the family pension under the Government Order dated 31.3.1982, then such families would be entitled to the pension, irrespective of the fact whether the teacher has died on or before 1.10.1981 or thereafter.
The scheme of the aforesaid Government Orders truly and explicitly reflects the intention of the Government and the purpose for which it was formulated. The State Government, in fact, took into consideration the plight of the families, whose bread-earners, namely; the teachers working in the various colleges of different categories, unfortunately died during the course of their employment after putting in a certain period of service and for such teachers there was no provision for pension, and of course, after their death also there was no provision for mitigating the hardships of the families of the deceased teachers. The terms of eligibility of family pension in the Government Order of 17.12.1965, prescribed the minimum qualified service of 20 years, which, of course, excluded all such teachers whose families were not fortunate enough to have the company of their bread-earners for 20 long years, in service.
Taking into account that a minimum period of 7 years of continuous service would be sufficient to draw family pension, to the family of a teacher, who dies during the subsistence of his tenure of service, the State Government issued the aforesaid Government Order dated 31.3.1982, making the provisions of family pension applicable to the teachers also as that of the Government servants, as given in the Government Order dated 1.10.1981.
Enforcing this scheme of family pension to the families of the deceased teachers, the Government in its wisdom prescribed a minimum qualifying service of 7 years and, thus, all the teachers who died after putting in a minimum of 7 years' continuous regular service, their families became entitled for the pension under the aforesaid Government Orders. Since there was some confusion regarding entitlement of the pension to the families where the teachers had died prior to the issuance of the Government Order dated 1.10.1981, therefore, the Government Order dated 16.6.1984, was again issued, specifically clarifying that the families of those teachers would also be entitled where the teachers have died either before 1.10.1981 or thereafter, if otherwise the family was entitled to pension under the terms of the Government Order of 31.3.1982.
Needless to reiterate the terms of the Government Order dated 31.3.1982, only required that the teacher before his death should have put in at least 7 years' continuous regular service. This requirement stands duly fulfilled in the present case.
The learned Single Judge has, therefore, allowed the benefit of family pension to the respondent no. 1.
Sri R.D. Shahi, has relied on the judgment of this Court at Allahabad in the case of Chandrawati Devi (Smt.) Vs. State of U.P. and another , (2010) 3 UPLBEC 2520, (by Hon. Amreshwar Pratap Sahi, J.), in support of his submissions that the benefit of the Government Orders of family pension referred to hereinabove would not be available to the respondent no. 1, as the new scheme was introduced w.e.f. 1.3.1977 through a notification dated 8.3.1978. Since the scheme was promulgated after the death of the husband of respondent no. 1, the same would not be applicable and when the husband of respondent no. 1 died, there was a family pension scheme, namely; the 'Triple Benefit Scheme' promulgated on 17.12.1965.
The learned Single Judge in the case of Chandrawati Devi (Smt.) (Supra), has found that there was earlier also a benefit scheme, namely; the 'Triple Benefit Scheme' promulgated on 17.12.1965 and the family members of an employee dying-in-harness or after retirement, were entitled for pension in terms of Clause 24 and, therefore, it can not be said that there was no such benefit available. It is a different matter that the husband of respondent no. 1, had not put in the qualifying service under which it would be possible for the department to extend the benefit of family pension. The learned Single Judge, in the aforesaid case after holding that since the petitioner's husband had put in only 14 years of service and not 20 years, which is the requirement under the scheme, held that she was not entitled to family pension.
In our opinion, the requirement of 20 years' continuous service was no more applicable in the case of the teachers where the family pension was governed by the terms and conditions of eligibility, as prescribed in the Government Order dated 31.3.1982 and clarified by another Government Order dated 16.6.1984.
We find that the attention of the learned Single Judge in the case of Chandrawati Devi (Smt.) (Supra), was not drawn to the aforesaid two Government Orders dated 31.3.1982 and 16.6.1984, therefore, the judgment can not be said to be based on consideration of the relevant Government Orders, dealing with the issue of award of family pension as the same had not been brought to the notice of the Court.
Considering the aforesaid two Government Orders and the view expressed by us, we are of the view that the case of Chandrawati Devi (Smt. (Supra), does not lay down the correct law.
For the reasons aforesaid, we do not find any illegality or infirmity in the order dated 8.10.2009, passed by the learned Single Judge.
The special appeal is dismissed.
Order Date :- 11.1.2011 Arjun