Dr. Prem Shankar Tiwari And ... vs State Of U.P. And Others
2018 Latest Caselaw 2930 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 33
 
										       AFR
 
Case :- WRIT - A No. - 64184 of 2010
 

 
Petitioner :- Dr. Prem Shankar Tiwari And Another
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- R. P. Dubey, Adarsh Bhushan, Amit Kumar Srivastava, Anil Bhushan, Anubhav Dwivedi, Saurabh Srivastava
 
Counsel for Respondent :- C. S. C.
 

 
Hon'ble Manoj Misra,J.

Hon'ble Ved Prakash Vaish,J.

Heard learned counsel for the petitioners; learned Standing Counsel for the respondents; and have perused the record.

At the outset, to obviate any confusion that may arise from the cause title of this petition, it is clarified that though the title of this petition suggests that the petition has been filed by Dr. Prem Shankar Tiwari, but, at the time of filing of the petition, he was not alive. In fact, his widow, namely, Smt. Saroj Tiwari, has filed this petition by describing herself as petitioner no.1/1. However, this being a technical defect, it should not come in our way in deciding the matter on merits.

Briefly stated facts giving rise to the present petition are that the husband of the petitioner, namely, Dr. Prem Shankar Tiwari, was appointed as Lecturer in the department of Commerce in S.R.K. Post Graduate College, Firozabad on 14.9.1973. His date of birth was 10.11.1946, as such, if he had been alive, and in service, he would have attained the age of superannuation in the year 2008 and, by taking sessions benefit, might have continued in service up to 30.06.2009. But, as fate would have it, he died in harness on 03.01.1997. Before his death he had opted for CPF Scheme (Contributory Provident Fund Scheme) and did not switch over to GPF plus pension scheme (General Provident Fund Plus Pension Scheme - for short pension scheme) even though, while he was alive, vide Government Order (in short G.O.) dated 28.04.1980, pension scheme was introduced and gave option to CPF scheme holders to switch over to pension scheme subject to fulfillment of certain conditions. The time period for exercise of option to switch over from CPF scheme to pension scheme was extended from time to time and such option period was in vogue, as per G.O. dated 21.05.1996, when the husband of the petitioner died. However, petitioner's husband, admittedly, did not exercise switch over option.

Although it is not specifically disclosed that the petitioner, on death of her husband, received all terminal benefits including CPF, but it has not been claimed by her that she did not accept the terminal benefits including CPF available on death of her husband. Under the circumstances, it could safely be assumed that the petitioner has received the terminal benefits that were otherwise available to her on death of her husband.

The case of the petitioner is that had her husband been alive he could have exercised his option to switch over from CPF scheme to pension scheme before his age of superannuation, inasmuch as, the time limit for exercise of such option had been extended from time to time and, vide GO dated 23.01.2010 (Annexure 12 to the petition), even a retired teacher has been given option to switch over to pension scheme, subject to fulfillment of certain conditions therefore petitioner should be allowed to exercise switch-over option. It is stated that if the husband of the petitioner had not died in harness, he would have continued in service up to 30th June, 2009 and, therefore, the petitioner, who stepped into his shoes, opted for family pension scheme but her application was rejected by impugned order dated 9.4.2007 (Annexure 13 to the petition) on the ground that her husband had opted for CPF scheme and had not availed the switching option provided by GO dated 25.01.1996 before his death, therefore the petitioner would not be entitled to family pension. It has been stated that by GO dated 23.01.2010 the benefit of pension scheme on switching over from CPF scheme, subject to fulfillment of certain conditions, was conferred on retired teachers, hence there is no justification to deprive the petitioner of the fruits of family pension, particularly, when the petitioner is ready to fulfill the switch-over formalities. It has also been urged that following decision of this court in Kirti Chand Gupta and others v. State of UP and others (Writ A No.13169 of 2008), dated 16th April, 2009 (Annexure 10 to the petition), a Division Bench of this court, vide order dated 24.8.2009, in Writ A No.43738 of 2009 (Annexure 11 to the petition), has granted such switch-over option to even a widow of retired employee, therefore, on ground of parity also, the petitioner is entitled to family pension. It is thus the prayer of the petitioner that she be allowed to switch-over to pension scheme by letting her exercise option on behalf of her late husband.

In the counter affidavit, a stand has been taken that the husband of the petitioner had opted for CPF Scheme and had not opted for GPF Plus Pension Scheme despite offer through GO dated 21.5.1996 and therefore he continued to remain with CPF Scheme till his death. It is stated in the counter affidavit that the benefit of switching over from CPF Scheme to pension scheme is available to teachers and retired teachers, who can be categorized as regular prospective pensioners, and not to their spouses (including widows) who are desirous for family pension. Hence, a clarification was issued, vide GO dated 30th September, 2010 (Annexure CA1 to the counter affidavit), that option to switch over from CPF scheme to pension scheme would not be available to widows of deceased teachers. It is their case that the widow of one employee, namely, Smt. Chetna Shukla, was provided family pension, pursuant to the order of this court dated 24.08.2009 passed in Writ A No.43738 of 2009. But that facility was not provided on account of any decision of the Government therefore the petitioner cannot plead discrimination.

Consequent to the stand taken in the counter affidavit, the petitioner sought for amendment in the writ petition to challenge the Government Order dated 30th September, 2010 as well as order dated 9.4.2007. The amendment was allowed and incorporated.

The learned counsel for the petitioner has assailed the GO dated 30th September, 2010 on the ground that there is no rationale to deny widow of a retired teacher of an aided institution the option to switch over from CPF scheme to pension scheme when such facility is available to a retired teacher. It is submitted that consequent to death of her husband, the petitioner stepped into his shoes for all practical purposes.

The learned counsel for the petitioner further submitted that pension is a welfare measure and, therefore, provision enabling exercise of option to switch over to pension scheme should be accorded liberal construction and the benefit of option to switch over from CPF Scheme to pension scheme should not be denied to a widow even if, during his life time, her husband may not have exercised the option.

Learned Standing Counsel, in reply, submitted that widow of a deceased employee stands on a different footing than the employee himself. Because, a widow, as a successor, gets only that which would, otherwise, be available to her predecessor. Therefore she is bound by the decisions taken by her predecessor husband. Hence, where an employee, during his lifetime, chooses a particular scheme and does not opt to switch over to another scheme, despite opportunity, and, thereafter, dies, unless specifically permitted by the rules or executive instructions, his widow would be bound by the option exercised by him. Therefore, if the State has taken a decision not to confer the right to exercise option, to switch over from one scheme to another, on widow of a deceased employee/ teacher, the decision of the State cannot be said to be arbitrary or discriminatory because widow of a retired employee and retired employee himself do not constitute one class.

We have considered the rival submissions and have perused the record. The main issue which arises for consideration in this petition is whether the G.O. dated 30.09.2010, which denies right of option to a widow of a teacher to switch over from CPF Scheme to pension scheme, is discriminatory and arbitrary and, as such, violative of Article 14 of the Constitution of India.

To address the above issue, an incidental issue that arises for our consideration is whether a retired teacher and his widow, for the purposes of exercise of option to switch from CPF scheme to the GPF plus pension scheme (in short pension scheme), constitute one class.

As both sides counsel have not cited any precedent as to whether a retired employee and his widow, for the purposes of exercising the switching option, as noticed above, could be treated as one class or not, we shall proceed to decide the issue on first principles.

Before we proceed to examine the above issue, it would be appropriate to first examine whether this court while deciding Writ A No.43738 of 2009 had, by adjudication, conferred on widow of a retired teacher / employee the right to exercise such an option. The order of the writ court, dated 24.08.2009, in Writ A No.43738 of 2009 is on record, at page 79 of the paper book, which is extracted below:

"It is stated by the learned counsel for the petitioner as well as by Shri Pankaj Saxena, learned standing counsel that the controversy in this case is covered by the decision in Kirti Chand Gupta and others v. State of UP and others, in Civil Misc. Writ Petition No.13169 of 2008, connected with other writ petitions decided on 16th April, 2009.

In the facts and circumstances, we dispose of the writ petition in terms of the decision in Kirti Chand Gupta's case."

The judgment in Kirit Chand Gupta's case is also on record as Annexure 10 to the petition. A perusal of the said judgment would reveal that it nowhere dealt with the right of a widow to exercise such an option. Rather, it dealt with a situation where the teachers had exercised the switch over option prior to their retirement but were wrongly denied the benefit. Under the circumstances, the order in Writ A No.43738 of 2009, which is based on statement made by the counsel for the parties, does not decide any issue and, therefore, cannot be considered a precedent. Further, since the State provided benefit to one of the petitioners of that case, who happened to be widow of a retired teacher, by acting under the direction of the Court, State's action cannot be taken as an exemplar to claim parity.

Now, we shall examine whether the G.O. dated 30.09.2010 is discriminatory and, as such, violative of Article 14 of the Constitution of India. To answer the said issue it would have to be seen whether there is any rational basis to confer right to exercise option on a retired teacher/ employee and not his widow. The rationale behind such differentiation is that a retired employee till his retirement is in a direct relationship with his employer and is therefore conferred right to opt for a welfare measure which his employer offers, whereas his widow, who has not been in any such relationship, is bound by the option exercised by her husband. In nutshell, a widow of an employee only steps in as a successor to get those benefits which had accrued to her husband, or such other benefits, like family pension, etc. as may be available under employer's decision/ policy/ statute. If the employee consciously opts for CPF Scheme and chooses not to opt for pension scheme, how could his widow / spouse alter his or her decision, unless specifically provided by the rules/ policy decision/ statute. Hence, the two cannot be treated as one class. Accordingly, the decision of the State not to allow a widow to exercise switch-over option is a policy decision, which is neither discriminatory nor arbitrary.

At this stage, it may be apposite to observe that almost a similar controversy came before the apex court in Rajasthan SRTC v. Rajasthan Roadways Union, (2012) 11 SCC 561. In that case, the apex court, upon finding that the deceased employee had, despite opportunity, opted for CPF Scheme and, thereafter, on his death, after having received terminal benefits, his widow through the Union claimed pension, held/observed as follows:

"......it is evident that the Regional Provident Fund Commissioner as well as appellant Corporation had informed all the departments/unions, as well as employees working under the Corporation to exercise their necessary option if they wanted to get the benefit of the family pension. The facts would indicate that several employees at that time had opted and few of them did not opt for that, since they were interested to get provident fund under the CPF Scheme and not the family pension under the Scheme, after the death of the employee. We have no reason to think that the employees were unaware of the notification issued by the Regional Provident Fund Commissioner as well as the Corporation. The facts would also indicate that the wife of Hari Singh had already received the entire provident fund amount and, since Hari Singh had not opted under the Scheme. However, after nine years, the respondent Union is raising a dispute which, in our view, is absolutely untenable. The Tribunal as well as the courts below have committed a grave error in not properly appreciating the facts of the case and rendered a perverse finding which necessarily calls for interference."

In the instant case also, the husband of the petitioner had opted for CPF Scheme and had never opted to switch over from CPF Scheme to Pension Scheme, despite opportunity, before his death. Further, it appears, the petitioner had raised a claim after about a decade of her husband's death. Under the circumstances, in absence of any provision allowing a widow to switch-over option, no relief can be granted to the petitioner.

Consequently, the petition is dismissed. There is no order as to costs.

Order Date :- 28.9.2018

AKShukla/-