Smt. Chandrawati Devi vs State of U.P. and Another

Amreshwar Pratap Sahi, J.—The Petitioner claims family pension after the death of her husband on 24th September. 1976. The Petitioner''s husband was a teacher in a school maintained by the Basic Shiksha Parishad and governed by the provisions of the Uttar Pradesh Basic Education Act, 1972 and the Regulations framed there under.

The Petitioner''s husband was appointed on 19.7.1962. After 14 years of his appointment, he died. The family pension scheme then existing was known as triple benefit scheme promulgated on 17.12.1965. According to the said scheme a family pension would be payable as per Clause 24, which is quoted below:

(1) A family pension not exceeding the amount specified in Sub-rule (2) below may 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:

Provided that the 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.

Note.--In case where the qualifying service is less than the prescribed minimum the deficiency should not be condoned.

There is no dispute that a new pension scheme was introduced w.e.f. 1.3.1977 through a notification dated 8th March, 1978. It is, therefore, clear that since this scheme was promulgated subsequent to the date of death of the Petitioner''s husband, the same would not be applicable.

Learned Counsel for the Petitioner contends that under the old scheme the Petitioner was entitled for family pension, inasmuch as, for the purpose of grant of family pension on retirement, only 10 years of qualifying service was required. It is, therefore, submitted that even otherwise there cannot be a discrimination practice by State by not allowing family pension under the new scheme that has been floated on 8th March, 1978. For the said purpose, learned Counsel for the Petitioner has cited several decisions of the Apex Court as well as the High Court noted below:

(1). Dhan Raj and Ors. v. State of Jammu and Kashmir and Ors. (1998) 2 UPLBEC 1525 (SC).

(2). Mohan Lal Sharma and etc. v. State of Rajsthan and Anr. 2002 (4) ESC 1690.

(3). Union of India and Anr. v. S.P.S. Vains (Retd.) and Ors. 2008 (9) SCC 125 : 2008 (6) AWC 5539 (SC).

Sri K.S. Kushwaha, learned Counsel for the Respondents contends that the cut-off date for applicability of the new pension scheme does not suffer from any infirmity and he relies on the Apex Court judgment in the case of State of West Bengal and Another Vs. West Bengal Government Pensioners Associations and Others, . He also relies on a decision in the case of Sabha Khatoon v. State of U.P. and Ors. Civil Misc. Writ Petition No. 39977 of 2001, decided on 3rd December, 2007: Smt. Sabha Khatoon Vs. State of U.P. and Others, by a learned single Judge of this Court. This is followed by another reliance placed in the case of Prem Lata Devi v. State of U.P. and Ors. (2009) 3 UPLBEC 2039.

I have considered the rival submissions and the facts that emerge in pleadings leave no room for doubt that when the Petitioner''s husband died, there was a family pension scheme continuing namely the Triple Benefit Scheme promulgated on 17.12.1965. It is, therefore, not the case that the Respondent-State had not framed any pension scheme. The family pension to the family members of an employee dying-in-harness or after retirement was entitled for pension in terms of Regulation 24 as quoted hereinabove. Thus, the benefit was very much there and it cannot be said that there was no such benefit available. It is something different that the Petitioner''s husband had not put in the qualifying years of service under which it would be possible for the department to extend the benefit of family pension. The fact remains undisputed that the Petitioner''s husband had put in only 14 years in service and not 20 years, which is the requirement under the said Rule. It is for this reason the family pension became unpayable to the Petitioner.

Accordingly, there is no discrimination practised by the Respondents, inasmuch as, the scheme was there but the Petitioner was not found entitled to receive the same as the qualifying years of service has not been completed by the Petitioner''s husband.

So far as, the new pension scheme is concerned, it does not have any retrospective effect. The argument on the basis of the cut-off date also does not hold water, inasmuch as, the cut-off date has been applied in respect of the employees after the said date and which stands supported by the legal principles indicated in the judgments relied upon by the learned Counsel for the Respondents.

There is no occasion for this Court to consider the arbitrariness or otherwise of the cut-off date, inasmuch as, the Petitioner would have been entitled for family pension had her husband put in 20 years of qualifying service. In such a situation, on both counts the claim of the Petitioner is unfounded.

The writ petition is accordingly dismissed.