(Smt.) Madhavi Devi vs State of Uttaranchal and Others

Rajesh Tandon, J.—Heard the learned Counsel for the parties.

By the present writ petition the petitioner has prayed for the issue of a writ of mandamus directing the respondents to release the actual family pension to the petitioner with effect from 1.5.1991.

Briefly stated, the husband of the petitioner Vishnu Singh Chamyal was posted as Head Master in Primary School at Chanoli, P.O. Barechhina, Tehsil Almora and he died during his service on 30.4.1991. Sri Vishnu Singh Chamyal had served 30 years 10 months and after his death the petitioner moved application to the respondent No. 4 for granting her family pension. She also moved a representation dated 8.9.2000 requesting for grant her family pension. The Basic Shiksha Adhikari, Almora sent a reply on 19.9.2000 staling therein that the petitioner is not entitled for the benefits of new family pension scheme because her husband had opted the option "Ka" and Rs. 30/- per month are being paid to her under the beneficiary Scheme and thereafter respondents also stopped Rs. 30/- w.e.f. 30.4.2001. Thereafter on 12.9.2003 the petitioner made a representation to the Chief Minister, Uttaranchal. The petitioner is an old lady and is suffering from old age ailments. She has no means of income and is hard pressed.

The controversy involves for consideration in the present case as to whether the petitioner is entitled for family pension as claimed or not.

Admittedly, the petitioner''s husband was Head Master in Primary School, Chanoli, Almora. He died on 30.4.1991 during his service alter completing a continuous service of 30 years 10 months. In the normal circumstances the petitioner would have been entitled to get family pension but she was denied pension on the pretext that her late husband opted option ''ka''.

Tor sanctioning the family pension to the government teachers w.e.f. 1.10.1981, the Government issued G.O. No. 6246/15.8.3004 (16)/77, dated 31.3.1982. The extract of the said G.O. reads as under:

Ikzk''oZfdr ''kklukns''kks }kjk izns''k ds lgk;rk izkIr twfu;j gkbZLdwyks mPprj ek/;fed fo|ky;ksa vkSj fMxzh dkystks ds f''k{kdks rFkk mRrj izns''k csfld f''k{kk ifj"kn }kjk lapkfyr izkbejh ,oa twfu;j gkbZLdwyksa ds f''k{kdks dks jkT; deZpkjh;ks ds leku isU''ku dh lqfo/kk nh x;h Fkh fdUrq ikfjokfjd isa''ku fn;s tkus dh ''kklu ls cjkcj ekax djrs jgs Fks ftl ij ''kklu }kjk lE;d :i ls fopkj fd;k x;k gS A vr% eq>s ;g dgus dk funsZ''k gqvk gS fd izk''oZfdr ''kklukns''kks esa ikfjokfjd isU''ku u fn;s tkus dh ''krZ dks fujLr djrs gq, jkT;iky egksn; mDr ''kklukns''kks esa fufgr izkfo/kkuks ds vUrZxr lkekU; Hkfo"; fuokZg fuf/k ,oa uohu isU''ku ;kstuk ls vk;qDr lgk;rk izkIr twfu;j gkbZLdwy] mPprj ek/;fed fo|ky; rFkk fMxzh dkyst ,oa mRrj izns''k csfld f''k{kk ifj"kn }kjk lapkfyr izkbejh ,oa twfu;j gkbZLdwyks ds leLr f''k{kdks dks jkstxkj deZpkjh;ks dh Hkkafr ikfjokfjd isU''ku dh lqfo/kk fnukad 1 vDVwcj] 1981 ls fn;s tkus dh Lohd`fr iznku djrs gSA

This Government order has further been clarified vide G.O. dated 31.3.1982, which reads as under:

miZ;qDr fo"k;d ''kklukns''k la[;k 6246@15-8-2004 �46� fnukad 31 ekpZ] 1982 dks Li"Vhdj.k djrs gq, eq>s ;g dgus dk funsZ''k gqvk gS fd ftyk fo|ky; fujh{kd eqtQ~jiqj us vius i=kad ikfj �isa''kuc) 7472&75@83&84 fnukad 21-1-84 }kjk ;g Ik`PNk dh gS fd fdlh v/;kid dh e`R;q ;fn 1-10-1981 ds iwoZ gks xbZ gks rks mlds vkfJrks dks ikfjokfjd isU''ku dk ykHk feysxk vFkok ugh bl lEcU/k esa ;g Li"V fd;k tkrk gS fd iz''uxr jktkKk esa micU/kks ds v/khu ;fn e`rd v/;kid ds vkfJrks dsk vU;Fkk ikfjokfjd isa''ku ns; gks rks pkgs v/;kid dh e`R;q fnukad 1-10-1981 ds iwoZ gh gks vFkok ckn esa gqbZ gks rks mlds vkfJrks dks fnukad 1-10-1981 ls jktkKk izkfo/kkuks ds v/khu ikfjokfjd isa''ku Lohd`fr dh tk;sxhA

From the perusal of ..hove mentioned Government Orders it is clear that the family of the teachers who died even before 1.10.1981 are entitled to get family pension but the petitioner was denied family pension on the pretext that her husband opted pension option "Ka" and he died before he could change the option.

It may be observed at this stage that payment of family pension to the petitioner for the services rendered by her husband is a part of Article 21 of the Constitution of India, which reads as under:

Protection of life and personal liberty - No person shall be deprived of his life or personal liberty except according to procedure established by law.

In the case of Islamic Academy of Education and Another Vs. State of Karnataka and Others, , the Apex Court has relied upon the judgment in Kapila Hingorani v. State of Bihar 2003 (98) FLR 329 (SC), and Munn v. Illinois 94 US 113 : 24 L Ed 77 (1877), and has observed human condition in the light of Article 21 of the constitution of India. The observations of the Apex Court are quoted below:

Recently in Kapila Hingorani v. State of Bihar (supra) a Bench of this Court noticed the following observations of Field J. in Munn v. Illinois as to what is life, which was in the following terms:

Something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed.

It is well settled proposition of law that award of pension is not a bounty from the employer or an act of charity. II is the indefeasible right of the employee and after his death his dependants and family members. An old woman of the age of more than 72 years cannot be expected to earn her livelihood independently and refusal of family pension to her is amount to deprive her from enjoyment of life, which is a fundamental right under Article 21 of the Constitution of India. In my view the claim of the petitioner for family pension has wrongly been rejected in a capricious manner.

In view of above, the respondents are directed to pay family pension to the petitioner, if otherwise petitioner is not disqualified for the same, within a period of three months, after she submits necessary papers, if not already been submitted.

Accordingly the writ petition is allowed. There will be no order as to costs.