Shyam Devi vs State Of U.P. And 4 Others
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Allahabad High Court

Shyam Devi vs State Of U.P. And 4 Others on 15 July, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:113781
 
Court No. - 38
 

 
Case :- WRIT - A No. - 12720 of 2018
 

 
Petitioner :- Shyam Devi
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Dharmendra Kumar Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Donadi Ramesh,J.
 

1. Heard Sri Dharmendra Kumar Srivastava, learned counsel for the petitioner and learned Standing Counsel for the State respondents.

2. Present writ petition has been filed questioning the order dated 9.2.2018 passed by second respondent pursuant to the order passed by this Court dated 11.07.2017 in Writ A No. 66879 of 2017.

3. The petitioner is wife of the deceased. The husband of the petitioner was appointed in Arya Kanya Intermediate College, Jalaun on 01.10.1957. While working as Headmaster in the said institution, he died on 17.3.1965. After demise of her husband, the petitioner was entitled for family pension as per Government Order dated 24.02.1989. When the respondents have not considered the case of the petitioner, she filed Writ A No. 66879 of 2017, which was disposed of with following directions:

"This Court had passed a detailed order on 4.7.2017 which is relevant for deciding the controversy that has been raised in the said writ petition and is therefore, being quoted herein below:

1. The counsel for the petitioner in this case has submitted that the husband of the petitioner died on 17.03.1965 while working as a clerk in Arya Kanya Inter College, Urai, Jalaun. It is an aided Inter College.

2. A Government Order was issued on 24.02.1989 by which for the first time a provision was made for giving family pension to dependents of non-teaching staff of aided Junior High Schools or schools run by Basic Shiksha Parishad. Two Government orders were issued providing that the scheme would apply only with effect from 01.01.1989 and it would not apply to the persons who died or retired before 01.01.1989.

3. This court in Writ Petition No. 38982 of 2001: ( Smt. Raj Muni Devi Vs. District Inspector of Schools, Ghazipur) decided on 28.01.2001 reported in 2002 (1) A.W.C. 208; and in another Writ Petition No. 7492 of 2003 (Smt. Badori Shukla Vs. State of U.P. and others) decided on 3.03.2003 reported in 2003 (3) A.W.C. 1895 has held that for the purpose of grant of family pension, the artificial classification made in the government order by creating a cut off date and thus making two sets/classes of employees merely on the basis of the date of death or retirement is discriminatory and cannot be justified, being violative of Article 14 of the Constitution of India and the government order dated 26.11.1999 was quashed.

Thereafter, the Government was also realized this fact and issued a Government Order dated 22.9.2004 wherein it clarified that the cut off date mentioned in the earlier Government Orders should be ignored and the pension would be admissible to the dependents of those employees who retired or died even before 1.1.1989.

3. On the basis of representation made by the petitioner, correspondence was undertaken by the departmental authorities. A letter was sent by the Deputy Director Secondary Education to the Director of Secondary Education on 10.07.2009 and it revealed that the petitioner's husband had died on 17.03.1965 and his services were governed by the Government Orders, which at the relevant point of time, were prevailing and therefore, the petitioner is not entitled for the benefits under the Government Order issued on 22.09.2004 and the same would not be applicable to the petitioner.

4. It is a case of the petitioner that since the Government Order dated 24.02.1989 which introduced the scheme for grant of family pension to dependents of non-teaching staff of aided institutions, does not mention anything about Triple Benefit Scheme (Labh Trai Yojna), therefore, it cannot be said by the authorities that now, since the petitioner's husband died at the time of enforcement of Triple Benefits Scheme, the New Pension Scheme would not be applicable.

5. The counsel for the petitioner as well as the learned Standing Counsel both seek time to find out judgments with regard to Triple Benefits Scheme and also Government Orders with regard to Triple Benefits Scheme and as to whether that scheme was applicable to non-teaching staff of an aided institution.

6. List on 11th July, 2017 as a part-heard matter.

Today when the case was taken up, the counsel for the petitioner has produced before this Court, copy of the government order dated 17.12.1965 by means of which the Triple Benefit Scheme was introduced in Government Aided Educational Institution.

According to the counsel for the petitioner, since the Government Order was notified only on 17.12.1965, and the petitioner's husband died on 17.3.1965, the said Government Order will not be applicable to the case of the petitioner (as her husband died before the said scheme was introduced). Hence, the plea taken in the counter affidavit that the service of the husband of the petitioner and any right to family pension etc. was governed by the Triple Benefit Scheme and not by the New Family Pension Scheme 1965, is misconceived.

I have gone through the Government Order dated 17.12.1965 and I find that the Triple Benefit Scheme was made applicable with effect from 1.10.1964 and on that date admittedly the husband of the petitioner was working in the institution concerned.

However, the fact remains that the said scheme had certain conditions mentioned therein which could not be fulfilled by the petitioner's husband before his death as the scheme was introduced after he died.

The New Family Pension Scheme was introduced by a Government Order dated 24.8.1966 but it was only with respect to dependents of those persons who were working in Government Institutions and with respect to the dependents of government employees. Later on, the said New Family Pension Scheme was also made applicable to teachers of aided Institution by a Government Order dated 24.2.1989.

It is the case of the petitioner that since the Government Order dated 24.2.1989 which extended the benefit of New Family Pension Scheme did not refer at all to the earlier scheme, that is, the Triple Benefit Scheme, and the Government Order dated 22.9.2004 also does not refer to the earlier Triple Benefit Scheme, it is not open for the State respondents to now take a plea that the husband of the petitioner was governed by the Triple Benefit Scheme and not by the New Family Pension Scheme.

I have considered the submissions made by the learned counsel for the petitioner and I think that the basic premise on which the submissions has been made does not stand to the test of the reason.

Only because the Government Orders dated 24.2.1989 and 22.9.2004 do not mention as to for which scheme they were being issued, or which scheme was being extended for the benefit of employees of aided Institutions and their dependents, It cannot be said to apply to a non existent scheme. Only by means of the said Government Orders, extension of benefit was given of an existing scheme, and therefore, it would apply only to the said existing scheme, even if mention of the relevant existing scheme has not been made in the said Government Orders.

Having considered the case set up by the State respondents in the counter affidavit and the arguments of the learned counsel for the petitioner, I find that it is the admitted case of the State respondents that the Triple Benefit Scheme shall apply to the petitioner as her husband was alive on 1.10.1964 and was working. Therefore, it would be appropriate if this Court disposes off this writ petition with a direction to the authorities to reconsider the case of the petitioner in the light of the Triple Benefit Scheme which was made applicable to all employees working in State aided Educational Institutions with effect from 1.10.1964.

The Director of Education (Secondary), Education, respondent no.2 shall reconsider the case of the petitioner in the light of the observations made herein above and pass appropriate orders in accordance with law within three months from the date of production of certified copy of this order is produced before him."

4. Consequent to the abovesaid direction, the respondents have rejected the case of the petitioner by impugned order dated 9.2.2018 only on the ground that the deceased employee has not completed 20 years of service, hence, the petitioner is not entitled for family pension.

5. After notice, the respondents have filed counter affidavit mainly stating that the petitioner was covered under Government Order dated 17.12.1965, hence, the petitioner is not entitled for family pension and the Government Order dated 24.02.1989 are applicable to the retired/dead employees or their dependents of government unaided Higher Secondary School, who have not opted the new pension scheme.

6. Learned counsel for the petitioner has submitted that the said ground for rejection is contrary to the observations made by this Court in State of U.P. and others vs. Smt. Shyam Kali and others, 2011 (6) AWC 6178 (LB), wherein identical issue was considered by the Division Bench of this Court and held as below:

"13. Taking into account that a minimum period of 7 years of continuous service would be sufficient to draw family pension, to the family of a teacher, who dies during the subsistence of his tenure of service, the State Government issued the aforesaid Government order dated 31.3.1982, making the provisions of family pension applicable to the teachers also as that of the Government servants, as given in the Government order dated 1.10.1981.

14. Enforcing this scheme of family pension to the families of the deceased teachers, the Government in its wisdom prescribed a minimum qualifying service of 7 years and. thus, all the teachers who died after putting in a minimum of 7 years' continuous regular service, their families became entitled for the pension under the aforesaid Government orders. Since there was some confusion regarding entitlement of the pension to the families where/the teachers had died prior to the issuance of the Government order dated 1.10.1981, therefore, the Government order dated 16.6.1984, was again issued, specifically clarifying that the families of those teachers would also be entitled where the teachers have died either before 1.10.1981 or thereafter, if otherwise the family was entitled to pension under the terms of the Government order of 31.3.1982.

15. Needless to reiterate the terms of the Government order dated 31.3.1982, only required that the teacher before his death should have put in at least 7 years' continuous regular service. This requirement stands duly fulfilled in the present case.

19. In our opinion, the requirement of 20 years' continuous service was no more applicable in the case of the teachers where the family pension was governed by the terms and conditions of eligibility, as prescribed in the Government order dated 31.3.1982 and clarified by another Government order dated 16.6.1984."

7. In the above judgment, the Court has categorically held that requirement of 20 years' continuous service was no more applicable in the case of the teachers where the family pension was governed by the terms and conditions of eligibility and further held that as per the Government Order dated 31.3.1982, only requirement is that the teacher before his death should have put in at least 7 years' continuous regular service. In the instant case, as the husband of the petitioner was appointed on 1.10.1957 and he died on 17.03.1965, accordingly, he has completed more than 7 years of continuous service. Hence, ground for rejection taken by the respondents that 20 years of continuous service is no more existed.

8. Considering the submissions made and perusal of the order passed by the Division Bench in the above-referred judgment, the impugned order is contrary to the law declared by the Division Bench. Accordingly, the impugned order dated 9.2.2018 passed by second respondent is set aside, remanding the matter to the respondents, once again, to consider the case of the petitioner as observed by this Court in Smt. Shyam Kali (supra) and take appropriate decision, within a period of one month from the date of receipt of certified copy of this order. It is needless to mention that if no decision is taken, the monetary benefits should be released to the petitioner, within two months thereafter.

9. Writ petition is, accordingly, disposed of.

Order Date :- 15.7.2025

Noman

(Donadi Ramesh, J.)