Rajwati Devi vs The State of Bihar and Others

Radha Mohan Prasad, J.—In this writ petition, the Petitioner, who is the widow of Late Gurudeo Prasad Singh who retired as an Assistant Teacher from Government Middle School, Manpura, Vaishali on 1.3.1974 and ultimately died on 19.6.1981, has prayed for issuance of an appropriate writ/order/direction to pay her the family pension since after the death of her husband.

In short, the relevant facts are that the husband of the Petitioner was initially appointed as teacher in the school when it was privately managed. Later, with all other Middle Schools, the school in question was also taken over by the State Government with effect from 1.1.1971 by 1976 Act and such teachers became Government servants with effect from 1.1.1971, on which date 1964 Rules for grant of Family Pension was in force.

In the case of Lalita Devi v. State of Bihar a question was raised as to whether under such circumstances, the widow of the deceased teacher was entitled to get the benefit of family pension under 1964 Rules and on detailed consideration, this Court, vide judgment/order dated 16.8.1999 reported in 1999 (3) PLJR 236, held that the widow is entitled for grant of family pension under 1964 Rules. This Court also considered the scope of the 1977 Government decision fixing 1.4.1976 as a cut off date for grant of such benefit and held that such Government decision cannot sustain the test of reasonableness and the principles governing Articles 14 and 16 read with Articles 38, 39 and 41 of the Constitution of India inasmuch as by fixing a cut off date under 1977 instruction would amount to arbitrarily denying the benefit available to the family of the teachers under the existing scheme of 1964 and thereby acting to their detriment.

Learned Standing Counsel No. III appearing for the State has submitted that the view taken in the case of Lalita Devi v. State of Bihar (supra) is contrary to the decision taken by the Division Bench of this Court in the case of Sona Devi Paswan Vs. The State of Bihar and Others, , as well as a subsequent decision of the learned single Judge of this Court in the case of H.K. Tripathi v. State of Bihar reported in 1999 (2) PLJR 444. Accordingly, it has been submitted by the learned Standing Counsel No. III that in view of the decisions of the Apex Court in the case of State of U.P. and another Vs. C.L. Agrawal and another, etc., and in the case of State of Andhra Pradesh Vs. v.C. Subbarayudu and Others, , the matter requires consideration by a larger Bench.

This Court is unable to accept the said submission of the learned Counsel for the State. In the case of Lalita Devi v. State of Bihar (supra), this Court on consideration of the decision of the Division Bench in the case of Sona Devi v. State of Bihar (supra) held that the Division Bench did not overrule the judgment of the earlier single Judge in the case of Smt. Sharda Devi v. State of Bihar reported in 1996 (2) PLJR 470, in which it was held that the Petitioner was entitled for family pension. In paragraph 5 of the judgment in the case of Lalita Devi (supra), this Court on consideration of the decision of the Division Bench found that the Division Bench also said that if the Petitioner of the said case makes a claim under 1964 Rules for payment of family pension, the same may be examined by the appropriate authority and a decision be taken. Their Lordships did not express any opinion on the claim for family pension under 1964 Rules.

In the case of H.K. Tripathi v. State of Bihar (supra) the learned single Judge has not considered the scope of the State Government''s decision sanctioning new scheme for family pension for the State Government employees vide Finance Department (sic)emo No. 9505 F, dated 3rd September 1964, which came into force with (sic)fect from 1st April, 1964 and was (sic)ade applicable to all regular employees on pension able establishment, temporary or permanent, who were in service on the 1st April, 1954 (sic) are recruited thereafter. Sub-paragraph (i) of paragraph 7 of the said Demo provides that the family pension could be admissible in case of death while in service, or after retirement on (sic) after the 1st April, 1964, if at the me of death, the retired Government servant was in receipt of a com pension, invalid, retiring or superannuation pension.

The decision of the Apex Court in the case of State of U.P. v. C.L. Agrawal(supra) is of no avail to the earned State Counsel. In the said case the Apex Court held that judicial discipline requires that a Division Bench should not examine de novo an issue that is concluded by the decision of the Full Bench of that High Court and that the Division Bench should refer the matter to the Full Bench. In the case of Lalita Devi v. State of Bihar (supra) it has already been Noticed that the Division Bench did not express any opinion on the claim for family pension under the 1964 Rules and directed that if the Petitioner of the said case makes a claim under 1964 Rules for payment of family pension, the same shall be examined by the appropriate authority and a decision be taken. In the case of State of A.P. v. V.C. Subbarayudu (supra), The Apex Court held that in case of difference of opinion between the two Benches of equal strength, reference should be made to the larger Bench.

There cannot be any dispute with respect to the said proposition, but I fail to appreciate as to how the said decision is of any help to the learned Standing Counsel appearing for the State, in view of the elaborate discussion about the legal position in the case of Lalita Devi v. State of Bihar (supra) in which this Court has held that the cut off date fixed under 1977 Instruction cannot sustain the test of reasonableness and the principles governing Articles 14 and 16 read with Articles 38, 39 and 41 of the Constitution of India and it is not the case of the State that they preferred appeal and got the said judgment stayed or set aside by the higher Court. Under such circumstances, this Court is bound by the decision in the case of Lalita Devi v. State of Bihar (supra), which is exactly similar to the present case.

The writ application is, thus allowed with a cost of Rs. 2,000/- (two thousand). The Respondents are directed to issue necessary sanction order for payment of family pension from due date as per 1964 Rules. The Petitioner shall also be entitled for interest at the rate of 10% per annum on the entire amount of family pension found payable from the date of filing of the writ application till the payment is made, which shall also be calculated and paid along with the amount of cost and the entire family pension within two weeks of the receipt/production of a copy of this order.