Jai Devi vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

This appeal is preferred against the order passed by learned Single Judge in WPSS No. 1331 of 2008 dated 12.02.2014. The appellant herein filed WPSS No. 1331 of 2008 seeking a writ of mandamus commanding the respondents to release arrears of the family pension, along with interest @ 18% per annum, pursuant to the judgment and order dated 21.04.2005 in WPSS No. 405 of 2005.

Facts, to the limited extent necessary, are that the petitioner's husband was working as a Head Master of a Primary School in Nehru Gram, run by the Basic Shiksha Parishad, Dehradun, when he died on 15.10.1973. On the ground that she was entitled to be granted family pension at par with Ms. Parvati Pandey (petitioner in WPSS No. 7212 of 2001), the appellant herein filed WPSS No. 405 of 2005 and, by order dated 21.04.2005, the learned Single Judge disposed of the writ petition in terms of the order passed in WPSS No.7212 of 2001 dated 21.01.2004.

The petitioner has again invoked the jurisdiction of this Court, seeking more or less the same relief, in as much as she had not impleaded the State of Uttar Pradesh as a respondent in WPSS No. 405 of 2005. While the judgment inter-parties (order in Writ Petition (S/S) No. 405 of 2005 dated 21.04.2005) is no doubt binding on the parties to the proceedings, such an order would not bind the State of Uttar Pradesh, since it was not a party to WPSS No. 405 of 2005. It is evidently for this reason that the appellant had, thereafter, filed WPSS No. 1331 of 2008.

Since the petitioner claims parity with Ms. Parvati Pandey i.e. the petitioner in WPSS No. 7212 of 2001, it is necessary to note what the learned Single Judge had observed in his order in WPSS No. 7212 of 2001 dated 21.01.2004. By the said judgment, the learned Single Judge struck down para 24 of the Government Order dated 17.12.1965 which placed a limit of 10 years, from the date of death of the employee or 65 years whichever was earlier, for payment of family pension. Since the appellant's husband died on 15.10.1973, even before he attained the age of superannuation, the appellant-writ petitioner was paid family pension for 10 years from that date till 14.10.1983. In Mrs. Parvati Pandey's case, the learned Single Judge had struck down para 24 of the Government Order dated 17.12.1965 to the extent it related to the petitioner therein. As a result of the order, in WPSS No. 7212 of 2001 dated 21.01.2004, the maximum limit of 10 years was made inapplicable to the case of Mrs. Parvati Pandey alone, and she was granted family pension beyond the maximum stipulated period of 10 years.

Just as the appellant-writ petitioner now claims parity with Mrs. Parvati Pandey, yet another person namely Mrs. Mohani Pandey filed WPSS No. 557 of 2010, and a Division Bench of this Court, in its order dated 23.04.2013, observed that she could not take advantage of the judgment in WPSS No. 7212 of 2001, since, by that judgment, para 24 of the Government Order dated 17.12.1965 was not quashed in its entirety; it was quashed only for Mrs. Parvati Pandey (petitioner in WPSS No. 7212 of 2001); nothing was stated in the said writ petition as to why para 24 of the Government Order dated 17.12.1965 should be interfered with; when the Government Order dated 17.12.1965 was issued, the husband of the petitioner was not covered by the scheme under which the employee was entitled to the benefit of provident fund and family pension until death; the Government had introduced the said benefit scheme for those employees, by the said Government Order, in 1978; the Government gave an option to all those employees, governed by the Government Order dated 17.12.1965, to opt for Provident Fund cum Family Pension till death; the husband of the petitioner chose not to opt for the same; and the petitioner (wife of the employee) could not contend that para 24 the Government Order dated 17.12.1965 was interferable, since her husband never thought that the same could be interfered with.

In the order, now under appeal before us, the learned Single Judge had relied on this judgment of the Division Bench, in Mrs. Mohani Pandey, to dismiss WPSS No. 1331 of 2008 by order dated 12.02.2014.

We find considerable force in the submission of Mr. Ashish Joshi, learned counsel for the appellant-writ petitioner, that, unlike in the case of Mrs. Mohani Pandey (petitioner in WPSS No. 557 of 2010) where her husband was alive when the 1978 scheme was introduced by the Government, the petitioner's husband, in the present case, had died much prior thereto on 15.10.1973. The fact, however, remains that the petitioner's entitlement, if at all, is only in terms of the Government Order dated 17.12.1965, which places an upper limit, of a maximum period of 10 years, for payment of family pension. The appellant-writ petitioner was, admittedly, paid family pension for a period of ten years.

It is only if paragraph 24 of the Government Order dated 17.12.1965 is struck down as ultra vires, would the appellant-writ petitioner then be entitled to be granted family pension beyond the stipulated maximum period of 10 years. In the absence of even a challenge to its validity, it would be wholly inappropriate for this Court to strike down Government Order dated 17.12.1965.

While we are in agreement, with the learned counsel for the appellant-writ petitioner, that the order passed by the Division Bench in Smt. Mohani Pandey Vs. State of Uttarakhand (order in WPSS No. 557 of 2010 dated 23. 04.2013) may not apply to the appellant-writ petitioner, since her husband had died on 15.10.1973 long prior to the introduction of the 1978 Scheme, we are satisfied that, even in terms of the Government Order dated 17.12.1965, the appellant-writ petitioner is not entitled to claim family pension beyond the maximum stipulated period of 10 years.

For the reasons aforementioned, the Special Appeal fails and is, accordingly, dismissed. No costs.