The State Of Bihar vs Rajmati Devi on 20 May, 2022


Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

Supreme Court of India

The State Of Bihar vs Rajmati Devi on 20 May, 2022

Author: M.R. Shah

Bench: M.R. Shah, B.V. Nagarathna

                                                                    REPORTABLE

                                IN THE SUPREME COURT OF INDIA
                                 CIVIL APPELLATE JURISDICTION

                             CIVIL APPEAL NOS. 3900­3901 OF 2022


          The State of Bihar & Ors.                                 ..Appellant (S)


                                               Versus

          Rajmati Devi & Anr.                                     ..Respondent (S)


                                          JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 11.04.2017 passed by the

Division Bench of the High Court of Judicature at Patna in

Letters Patent Appeal No. 1099/2016, by which, the

Division Bench of the High Court has dismissed the said

appeal preferred by the State and has confirmed the

judgment and order dated 02.09.2015 passed by the

learned Single Judge holding that respondent No. 1 being

Signature Not Verified
widow of the deceased employee would be entitled for grant
Digitally signed by
Jatinder Kaur
Date: 2022.05.20
17:14:33 IST
Reason:

1
of family pension from the date of death of her husband,

the State of Bihar has preferred the present appeals.

2. The husband of respondent No. 1 herein joined the Bihar

Research Society, an autonomous society registered under

Societies Act, as a peon. The said society was taken over

by the Government of Bihar vide Bihar Research Society

(Taking Over) Act, 2007. By resolution dated 31.08.2005,

the State abolished the Old Pension Rules i.e., Bihar

Pension Rules, 1950 and replaced the same with New

Pension Scheme i.e., Bihar Government Servant

Contributory Pension Scheme, 2005, w.e.f. 01.09.2005. As

per the New Pension Scheme, the employees appointed

after 31.08.2005 shall be governed by the new

contributary pension scheme under which the government

employees appointed after 31.08.2005 shall not be entitled

to the pension/family pension. The Bihar Research Society

(Taking Over) Act, 2007 (hereinafter referred to as the Act,

2007) came into force on 02.03.2009 resulting in taking

over of the Institute/Society where the husband of

respondent No. 1 was working. The husband of respondent

2
No. 1 died on 23.03.2013 while in service. The employees

of the aforesaid Society were taken into government service

vide order dated 25.03.2014 w.e.f. 02.03.2009. A

corrigendum came to be issued by the State of Bihar

amending the employment order dated 25.03.2014

substituting the word “appointed” with the word

“absorbed”. Clause 6 was inserted by the corrigendum

stating that prior to date of acquisition, the service would

not be calculated as government service. That respondent

No. 1 filed the writ petition before the High Court praying

for family pension and other retiral benefits. By judgment

and order dated 02.09.2015, the learned Single Judge

allowed the said writ petition and directed the State to pay

the family pension to respondent No. 1 from the date of her

husband’s death i.e., 23.03.2013.

2.1 Feeling aggrieved and dissatisfied with the judgment and

order passed by the learned Single Judge allowing the

family pension, the State preferred the Letters Patent

Appeal before the Division Bench of the High Court. By the

impugned judgment and order, the High Court has

3
dismissed the said appeal and has confirmed the judgment

and order passed by the learned Single Judge, which has

given rise to the present appeals.

3. Learned counsel appearing on behalf of the appellant has

vehemently submitted that pension and family pension

was available to the employees of the State Government

who were governed by the Old Pension Rules. It is

submitted that when the husband of respondent No. 1 was

absorbed in the year 2014 w.e.f. 02.03.2009, the Old

Pension Rules were abolished and the New Contributory

Pension Scheme was replaced. It is submitted that

therefore, the Old Pension Rules were not applicable to the

husband of respondent No. 1 and therefore, respondent

No. 1 shall not be entitled to the family pension under the

Old Pension Rules.

3.1 It is submitted that the Old Pension Rules were abolished

on 01.09.2005 and thereafter, the New Pension Scheme

came into force, therefore, New Pension Scheme was

applicable to all the employees of the State Government,

who were appointed/absorbed on or after 01.09.2005.

4
3.2 It is submitted that a corrigendum dated 22.06.2015 was

also issued by the Government making it abundantly clear

that the term of Government service will be calculated only

from the cut­off date i.e., 02.03.2009 and the services of

the adjusted employees, prior to date of acquisition in

Bihar Research Society shall not be calculated as a

government service. It is submitted that in that view of the

matter, the High Court has committed a grave error in

allowing the family pension applying the Old Pension

Rules, 1950.

3.3 Making the above submissions, it is prayed to allow the

present appeals.

4. The present appeals are vehemently opposed by Ms.

Rachitta Rai, learned counsel appearing on behalf of

respondent No. 1. It is vehemently submitted that the

husband of respondent No. 1 was absorbed in the State

Government service w.e.f. 02.03.2009 by way of

adjustment vide Section 5 of the Act, 2007. It is submitted

5
that it was not a fresh appointment and therefore, his

services were to be treated as continuous.

4.1 It is submitted that the husband of respondent No. 1 died

in harness and while in service and therefore, as per

clause 7(1) to the family pension scheme, on the death of

her husband who died while in service, respondent No. 1

was entitled to the family pension and the family pension

scheme being beneficial scheme, both, the learned Single

Judge as well as the Division Bench of the High Court

have rightly held that respondent No. 1 is entitled to the

benefit of the family pension scheme.

5. We have heard learned counsel appearing on behalf of

both the parties at length.

6. At the outset, it is required to be noted that the husband

of respondent No. 1 came to be absorbed in the

government service in the year 2014 w.e.f. 02.03.2009. Till

02.03.2009, he remained the employee of the Bihar

Research Society, of which he was an employee and

working. The Old Pension Rules, 1950 came to be

6
abolished and the New Contributory Pension Scheme came

to be introduced w.e.f. 01.09.2005. Under the New

Contributory Pension Scheme, there is no provision for

pension/family pension. As per the Scheme, all those who

are appointed after 31.08.2005 shall be governed by the

New Contributory Pension Scheme. Therefore, at the time

when the husband of respondent No. 1, who died in the

year 2013, was absorbed, the Old Pension Rules were

abolished and the New Contributory Pension Scheme was

in existence. As per the corrigendum issued in the

appointment order and as per clause 6, the prior service

rendered by the concerned employee prior to his

absorption shall not be treated as a government service.

Therefore, the husband of respondent No. 1 can be said to

be a government servant and in government service w.e.f.

02.03.2009 only. Therefore, the husband of respondent

No. 1 was governed by the New Contributory Pension

Scheme under which there is no provision for the

pension/family pension. Therefore, the High Court has

committed a grave error in directing the appellant to pay

the family pension to respondent No. 1 applying the Old

7
Pension Rules, which were appliable prior to 31.08.2005.

The aforesaid aspect has not been considered by the High

Court at all and the learned Single Judge simply

considered that on the death of the husband of respondent

No. 1, who died in harness while in service, respondent No.

1 is entitled to the family pension under family pension

scheme. However, the High Court has not at all considered

that on coming into force the New Contributory Pension

Scheme, no government employee appointed after

31.08.2005 shall be entitled to any other benefit except

under the New Contributory Pension Scheme. In that view

of the matter, respondent No. 1 shall not be entitled to the

family pension under the Old Pension Rules, which were

not appliable at the time when the husband of respondent

No. 1 came to be absorbed in the government service w.e.f.

02.03.2009.

7. In view of the above discussion and for the reasons stated

above, the impugned judgment(s) and order(s) passed by

the High Court deserve(s) to be quashed and set aside.

Accordingly, the judgments and orders passed by the

8
learned Single Judge as well as the Division Bench of the

High Court holding that respondent No. 1 shall be entitled

to the family pension under the Old Pension Rules are

hereby quashed and set aside. It is observed and held that

as the husband of respondent No. 1 was absorbed in the

government service only w.e.f. 02.03.2009, he shall be

governed by the New Pension Scheme i.e., Bihar

Government Servant Contributory Pension Scheme, 2005.

The present appeals are allowed, accordingly. No costs.

…………………………………J.

(M. R. SHAH)

………………………………J.

(B.V. NAGARATHNA)
New Delhi,
May 20, 2022

9



Source link