Malti Rai vs State Of U.P. & Others

Smt. Malti Rai w/o Late Mahendra Nath Rai is before this Court assailing the validity of the judgment and order dated 29.2.2008 passed by the learned Single Judge of this Court in Writ Petition No. 12297 of 2007 (Smt. Malti Rai Vs. State of U.P. & others) dismissing the writ petition as well as the order dated 6.11.2008 passed by the learned Single Judge in Review Application No. 155477 of 2008 rejecting the same by mentioning that no ground is made out to review the order dated 29.2.2008.

Brief background of the case leading to filing of instant special appeal in brief is that husband of petitioner appellant Late Mahendra Nath Rai has been performing and discharging duties as Assistant Teacher at Janta Inter College, Attapur Ohani, District Azamgarh. Husband of the petitioner appellant has been appointed in the said institution in academic session 1972-73 and functioned till academic session 1976-77 and as his luck would have been he died on 3.6.1977 during his continuance in service. Thereafter, petitioner appellant has come forward stating that State Government has formulated a scheme on 31.3.1982 and therein family pension has been sought to be awarded to the teachers of the aided institutions which were being granted and were receiving the grant-in-aid as Junior High School, Intermediate College, Degree College and Primary School, in this background, petitioner appellant submits that in consonance with the Rule 3-Ka as her husband had died during service and he had to his credit continuous service for a period of one year, she was entitled for family pension. Petitioner appellant, in this background, claimed that as her husband was appointed as Assistant Teacher on 16.7.1972 and had died on 3.6.1977 and, as such, the husband of petitioner appellant has completed about five years of service as Assistant Teacher in the institution in question and in such a background as per the policy, that has been holding the field, family pension ought to have been accorded in her favour.

Petitioner appellant has proceeded to make a mention that another Government Order dated 16.6.1984 has been issued which was a clarificatory order in reference to the earlier Government Order dated 31.3.1982 mentioning therein that if otherwise the dependent of the teacher is entitled for family pension then even though the death of the teacher had taken place prior to 1.10.1981, dependent of that teacher is entitled for family pension as per the Government Order dated 31.3.1982 and, as such, dependent of the teacher will obtain the family pension. Petitioner appellant has also come forward by mentioning that U.P. Government issued another Government Order dated 5.1.1996 and provided therein that the contribution from the management in the CPF (Contributed Provident Fund) may be deposited with interest in the treasury in the account of Provident Fund and time frame has been provided for depositing the contribution from the management. Mention has also been made that said period has been extended from time to time and petitioner appellant claims that managerial contribution with regard to husband of petitioner appellant has been deposited 22.3.2002 and, in this background, it has been contended that petitioner appellant was entitled to receive family pension but as it was not being paid she preferred Writ Petition No. 46280 of 2006 (Malti Devi Vs. State of U.P. and others) and this Court on 25.8.2006 asked the authorities concerned to take decision and, thereafter, the authorities concerned has proceeded to take decision and non-suited the claim of petitioner appellant. Petitioner appellant, in her turn, assailed the said action by preferring Writ Petition No. 12297 of 2007 and said writ petition has been dismissed on 29.2.2008 and, thereafter, review application has been filed for reviewing the aforementioned order and same has also been rejected by the learned Single Judge on 6.11.2008 and such decision taken by the learned Single Judge has impelled the petitioner appellant to be once again before this Court.

Sri Ram Mohan, learned counsel for the petitioner appellant, contended with vehemence that claim of petitioner appellant was specifically covered under the policy decision, that has been so taken by means of Government Order dated 31.3.1982 by which the benefit of family pension has been granted to the government employees w.e.f. 1.10.1981 and wherein the criteria provided for according family pension has been that the incumbent must have discharged regular continuous service for a period of one year and, in view of this, erroneous view has been taken by the learned Single Judge and various Government Orders have been misconstrued and misread, as such, present special appeal deserves to be allowed.

Sri Sanjay Kumar Singh, learned Standing Counsel, on the other hand, has countered the said submission by contending that petitioner appellant was not at all entitled for the benefit of the aforementioned Government Orders in question as the pre-requisite terms and conditions for getting the benefit of aforementioned Government Orders in reference of family pension was not at all fulfilled by the petitioner appellant.

After respective arguments have been advanced, the scheme of things are being looked into.

In order to provide teachers serving in the State-aided institution better service conditions committee was constituted and said committee made recommendation that an employee serving in the State-aided educational institutions were enjoying the benefits of Contributory Provident Funds only, and there was no provision of their life Insurance/Pension etc. and it was considered necessary that these benefits might also be extended to them in order to relieve them of the worries after the retirement and in this background by means of Government Order dated 17.12.1965,Triple Benefit Scheme was introduced which was made effective with effect from 01.10.1964. The benefit occurring to the employees to the said scheme was (i) Contributory Provident Fund (ii) Compulsory Life Insurance (iii) Pension including Family Pension. For making these benefits more effective Rules were made providing therein terms and conditions on which these benefits were extendable. The said Rules were known as "Uttar Pradesh State Aided Educational Institutions Employees Contributory Provident Fund, Insurance Pension Rule. Chapter-I of the said Rules, Rule 3 provides that benefit of aforesaid Rules shall apply to permanent employees serving in the Sate of the following categories of institution run either by a Local Body or by a Private Management and recognised by a competent authority as such for purposes of payment of grant-in-aid. The object of said rule is to ensure all three types of service benefits namely Contributory Provident Fund, Insurance and Pension. Rule 4 of the aforesaid Rules provides that these rules are intended to ensure to the employees of the State aided educational institutions, three types of service benefits viz Contributory Provident Fund, Insurance and Pension (Triple Benefit Scheme) the quantum of the benefits and the conditions by which they are governed are described in the succeeding Chapters. Under the said Rules an employee already in permanent service on the date of enforcement of these Rules shall be given an option to elect these new rules or to continue to be governed by the existing rules applicable to him. Categorical provision has been provided for that no employees shall be allowed option to choose only a part of the scheme except as otherwise specifically provided for in these rules.

Rules 3 and 4 of the Uttar Pradesh State Aided Educational Institutions Employees Contributory Provident Fund, Insurance Pension Rule 1964 is being quoted below: "Rule 3: These rules shall apply to permanent employees serving in State aided educational institutions of the following categories run either by a Local Body or by a Private Management and recognised by a competent authority as such for purposes of payment of grant-in-aid: (1) Primary Schools;

(2) Junior High Schools;

(3) Higher Secondary Schools; (4) Degree Colleges;

(5) Training Colleges. Rule 4: (a) These rules are intended to ensure to the employees of the State aided educational institutions, three types of service benefits viz Contributory Provident Fund, Insurance and Pension (Triple Benefit Scheme) the quantum of the benefits and the conditions by which they are governed are described in the succeeding Chapters.

(b) An employee already in permanent service on the date of enforcement of these Rules shall be given an option to elect these new rules or to continue to be governed by the existing rules applicable to him.

(c) No employees shall be allowed option to choose only a part of the scheme except as otherwise specifically provided for in these rules.

Chapter II of of the said Rules deals with definition clause. Chapter III of the said Rules deals with Contributory Provident Fund, Chapter IV of the said Rules deals with Life Insurance and Chapter V of the said Rules deals with Pension. Under Chapter V of the said Rules, Rule 17 deals with eligibility for pension of an employee and in respect of entitlement of pension.

Rule 18 deals with amount of pension that may be granted shall be determined by the length of qualifying service and Rule 19 provides that service will not count for pension unless the employee holds a substantive post on a permanent establishment. Rule 17 and 19 being relevant is being extracted below: "Rule 17: An employee shall be eligible for pension on: (i) retirement on attaining the age of superannuation or on the expiry of extension granted beyond the superannuation age;

(ii) voluntary retirement after completing 25 years of qualifying service;

(iii) retirement before the age of superannuation under a medical certificate of permanent incapacity for further service; and

(iv) discharge due to abolition of post of closure of an institution due to withdrawal of recognition or other valid causes.

Rule 19: (a) Service will not count for pension unless the employees holds a substantive post on a permanent establishment.

(B) Continuance temporary or officiating service followed without interruption by confirmation in the same or another post shall also count as qualifying service. (C) Leave without allowance, suspension allowed to stand as a specific penalty, overstayal of joining time or leave not subsequently regularized, and period of breaks in service shall be reckoned as qualifying service.

(d) Period of breaks between two periods of service due to termination of service, for no fault of the employee shall not be treated as interruption involving forfeiture of past qualifying service. In other cases breaks due to other causes shall result in forfeiture of past service unless condoned by Government.

(e) Time passed on earned leave shall fully count as qualifying service, but time passed on other kinds of leave with allowance shall count as qualifying service as follows:- (i) If the total service is not less that 13 years, but less than 30 years, one year of such leave shall count as qualifying service;

(ii) If the total service is not less than 30 years, two years of such leave shall count as qualifying service. Notes:(1) The term "Earned Leave" means leave on full average pay.

(2) In case a married women employee time passed on maternity leave may be allowed to count as qualifying service, provided that the period covered by such leave and also earned leave shall not exceed what would have been admissible had she availed of the whole of the earned leave to which she was entitled under the rule.

(3) "Total Service" means total service reckoning from the date of commencement of service qualifying for pension and includes periods of leave referred to above.

(4) The service put in by an employee before he has completed 18 years of age or after attaining the age of superannuation unless extended by competent authority or on re-employment after retirement shall not qualify for pension.

(5) The entry relating to confirmation of employee in the service book shall be countersigned by the Controlling Authority.

(6) In cases not covered by these rules qualifying service shall be determined by Government and its decision shall be final."

Rule 24 deals with family pension and as per said Rule 24 family pension not exceeding the amount specified could be granted for a period of 10 years to the family of an employee who dies either while still in service or after retirement, after completion of not less than twenty years of qualifying service. Proviso has been added to the said Rule providing therein that period of payment of family pension shall in no case extend beyond a period of five years from the date on which the deceased employee would have attained the age of superannuation. While this scheme had been subsisting on 31.03.1978 State Government issued Government Order in the background of repeated request being made that pension should be made available to the employee of institution run and managed by private management under U.P. Act No. 2 of 1921 and receiving grant-in-aid from the State Government in the same way and manner as State Government employees were being paid. State Government conceded to this demand and mentioned that all the employees of aided institutions run and managed by private management under U.P. Act No. 2 of 1921, who have been retired on 01.03.1977 or thereafter they would be paid their pension in the same way and manner as State Government employees were being paid. However, a rider was attached to the same by mentioning that the said teacher would not at all be entitled for benefit of Death-cum-Retirement Gratuity and after death no pension would be made admissible to their family members. Government Order dated 31.3.1978 provides for as follows; "VERNACULAR MATTER OMITTED"

After the said Government Order had been issued, much hue and cry has been raised by the employees in respect of deprivation of family pension and then State Government in its wisdom on 31.03.1982 mentioned that condition which has been imposed in the Government Order dated 31.03.1978 is being rescinded and subject to the conditions mentioned in the Government Order employees who are covered by the new pension policy they would be extended the same benefit as Government employees are getting with effect from 01.10.1981.

In this particular Government order in paragraph 4(a) of the same it has been provided for that where while in employment if employee has completed seven years of service, then in that event family pension would be payable from the date of death, in case of his survival, he would have attained the age of 65 years. In paragraph 4 (b) it has been provided that if death takes place after superannuation then in that event family pension would be payable to the family pensioner till pensioner would have attained sixty five years of age or for period of seven years, whichever was earlier. Subsequent to this Government Order, another Government Order dated 16.06.1984 has been issued, wherein by way of clarification it has been mentioned that said benefit was extenable to teachers who had died on 01.10.1981 or even prior to the same.

For ready reference Government Order dated 31.3.1982 is quoted below; "VERNACULAR MATTER OMITTED"

In this Government Order under paragraph 3 in respect of those employees who have died while in service their entitlement of family pension is hedged with the condition that only one year continuous service is required which would not include the service rendered without allowance during suspension and before attaining the age of 20 years.

As provision of Uttar Pradesh State Aided Educational Institutions Employees Contributory Provident Fund, Insurance Pension Rule 1964 has been covering only those institutions and employees who were permanent in the State aided educational institution and as various institutions were being included in the grant-in-aid list of the State Government then issues have been raised qua clubbing the services rendered by incumbents at the point of time when the institution was unaided. In this regard repeated demands were being made from the State Government for extending the benefit of aforesaid service for computing the qualifying service for pension. State Government proceeded to consider the request of said category of teachers and in furtherance thereof State Government proceeded to issue Government Order dated 23.05.1998 mentioning therein that in continuance of the Government Order dated 10.03.1978 and 31.03.1982, period which has been spent by incumbent in the institution prior to institution being included in grant-in-aid list, said period of service shall also be clubbed but condition was attached therein that who have attained the age of superannuation will have to pay contribution in Contributory Provident Fund alongwith interest. Said amount in question was required to be deposited in Contributory Provident Fund and further it was mentioned that even incumbents who have died, said benefit in question shall be extended to them also. By means of Government Order dated 23.05.1998 time frame has been provided for upto 31.03.1998 for the said amount in question to be deposited in the Government treasury. Obligation has been cast upon the Management through Principal that in respect of teaching and non-teaching staff after computation being made the managerial contribution alongwith the interest, be deposited in the office of District Basic Education Officer. It was also mentioned that thereafter entry shall be made in the service book. It was also clarified that for pension/family pension, said service would be computed from the date when he has been lawfully appointed and it was also clarified that this Government Order dated 23.05.1998 shall be applicable to the incumbent who have retired after aforesaid date i.e. 23.05.1998.

Thereafter said Government Order in question has again been considered in Government Order dated 17.02.1999, wherein period which has been fixed for depositing managerial contribution upto 30.09.1998 same has been extended up to 30.07.1999 and it was also clarified and directed that for availing benefit of aforesaid Government Order, all the institutions should get said contribution deposited in time with the Government Treasury.

By means of Government Order dated 26.07.2001 cut of date for depositing the managerial contribution has been fixed upto 31.03.2002 and at the said point of time, Civil Misc. Writ Petition No. 75746 of 2005 (Smt. Shanti Solanki Vs. State of U.P. and others) has been filed and challenge was made therein that said cut of date as has been fixed to deposit management contribution together with interest upto 31.03.2002 is arbitrary and unreasonable. This Court on 06.09.2006 has held that said cut of date as 31.03.2002 is wholly arbitrary and has no nexus viz-a-viz the shence mentioned therein. This Court has also proceeded to mention that cut of date as has been mentioned in the Government Order dated 26.07.2001 fixing 31.03.2002 as the last date for deposit of management''s contribution has already been struck down and accordingly management''s contribution along with interest is deposited within a period of six weeks from today and if the amount, as directed above, is paid, the respondents shall extend the benefit of aforesaid Government Order to petitioner also subject to fulfillment of other terms and conditions of the scheme. Relevant extract of the said judgment is being extracted below: "As the allegations made in the writ petition have not been denied and no justification for fixing the cut off date as 31.03.2002 has been given, the Court is left with no other option but to quash that part of the Government order dated 26.07.2001 which fixes 31.03.2002 as the last date for deposit of the management''s contribution together with interest.

Consequently, the writ petition is allowed and in case the petitioner deposits the management contribution together with interest within a period of six weeks, the respondents shall extend the benefit of the said Government Order to the petitioner within a further period of six weeks."

Petitioner appellant claims that managerial contribution with regard to her has been deposited on 22.3.2002.

On the parameters of the provisions, quoted above, the claim of petitioner appellant is being examined and what we find from the Government Order dated 31.3.1982 is that in reference of institutions that were in grant-in-aid list and who have been receiving grant-in-aid from the State Government, a resolve has been taken to accord family pension w.e.f. 1.10.1981 to the family of the deceased and this much is also clearly reflected that thereafter mention has been made that benefit of the same can also be extended to the institution wherein an incumbent had died prior to 1.10.1981.

The benefit of the Government Order dated 31.3.1982 was admissible to all such institutions wherein the provisions of GPF and NPS were made applicable and the factual situation, that has so emerged in the present case, is that new pension policy has been introduced by means of Government Order dated 31.3.1978 and as husband of petitioner appellant had already died, accordingly, at no point of time, petitioner appellant''s husband, during his life time, has ever proceeded to opt for new pension policy and as at no point of time he has ever been a member of General Provident Fund, in such a situation and in this background, once her claim has not at all been falling within the domain of rules in question for grant of family pension, then same cannot be accorded to her and the authorities concerned have rightly proceeded to construe the respective Government Orders and have rightly proceeded to non-suit the claim of petitioner appellant for grant of family pension in consonance with the Government Order dated 31.3.1982. On the ground that her husband has completed one year continuous regular service, same would bring the claim of petitioner appellant for consideration of family pension but as grant of family pension has been hedged with the condition that the husband of petitioner appellant must have opted for new pension scheme, in view of this, once the pre-requisite terms and conditions for grant of family pension was not being fulfilled, then no relief can be accorded to the petitioner appellant by us.

Special appeal is dismissed, accordingly.